CINQUEMANI v. LLC (2020)

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered February 26, 2018, which granted the motion of defendants Otis Elevator Company and HLT N.Y. Waldorf, LLC for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants established their prima facie entitlement to judgment as a matter of law in this action where plaintiff Thomas Cinquemani alleges that he was injured when an elevator in the Waldorf Astoria, where he worked, suddenly started jumping and then free fell from the 42nd floor to the 3rd floor.  Defendants submitted evidence, including an expert affidavit and deposition testimony of Otis's elevator mechanic, demonstrating that plaintiff's account of how the elevator incident occurred was electrically and mechanically impossible (see Espinal v. Trezechahn 1065 Ave. of the Ams., LLC, 94 A.D.3d 611, 613, 942 N.Y.S.2d 519 [1st Dept. 2012];  Hardy v. Lojan Realty Corp., 303 A.D.2d 457, 755 N.Y.S.2d 901 [2d Dept. 2003];  compare Miller v. Schindler El. Corp., 308 A.D.2d 312, 313, 763 N.Y.S.2d 826 [1st Dept. 2003]).  Defendants also demonstrated lack of notice of any defect that could have caused the incident, and that what had occurred was an appropriate system activated shutdown.

In opposition, plaintiffs failed to raise a triable issue of fact.  Their expert's statements that defendants were negligent were conclusory and failed to rebut defendants' showing that it was impossible for the incident to have occurred in the manner plaintiffs allege (see Forde v. Vornado Realty Trust, 89 A.D.3d 678, 679, 931 N.Y.S.2d 687 [2d Dept. 2011];  compare Colon v. New York City Hous. Auth., 156 A.D.3d 406, 407, 66 N.Y.S.3d 237 [1st Dept. 2017]).  Nor can plaintiffs rely on the doctrine of res ipsa loquitur, as they failed to demonstrate that the elevator stoppage in this case was the type of event that would not ordinarily occur in the absence of negligence (see Espinal at 614, 942 N.Y.S.2d 519;  Hardy at 457, 755 N.Y.S.2d 901).

We have considered plaintiffs' remaining arguments and find them unavailing.