OVERHOLT v. ATLAS ELEVATOR COMPANY INC (1999)

Plaintiffs commenced this negligence action seeking damages for injuries sustained by Dennis Overholt (plaintiff) while repairing a freight elevator door that had come off its track.   Defendant had a contract with plaintiff's employer, Dunlop Tire Corporation (Dunlop), to examine, lubricate, and report on elevators at the Dunlop plant.   Defendant performed elevator repairs only when such repairs were requested by Dunlop.   Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.   Defendant met its initial burden on the motion by establishing that the freight elevator at issue was working properly after defendant last serviced it, and that it had no notice of the alleged defect because no request for repairs was made.   In opposition to the motion, plaintiffs failed to raise a triable issue of fact whether defendant had actual notice of the defective condition or failed to exercise reasonable care “to discover and correct a condition which it ought to have found” (Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403;  see, Nivens v. New York City Hous. Auth., 246 A.D.2d 520, 521, 667 N.Y.S.2d 415, lv. denied 92 N.Y.2d 805, 677 N.Y.S.2d 780, 700 N.E.2d 319;  Morales v. Hefran Realty Co., 202 A.D.2d 407, 609 N.Y.S.2d 850).

Order unanimously affirmed without costs.

MEMORANDUM: