BASS v. Chase Manhattan Bank, Third-Party Defendant. (1998)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated July 25, 1997, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with one bill of costs payable to the respondent.

The plaintiff twisted her left foot while descending on an escalator located in a building owned and managed by the third-party defendant, Chase Manhattan Bank, and installed and maintained by the defendant, Otis Elevator Company.   At her examination before trial, the plaintiff testified that the escalator came to a complete stop.   The defendant moved for summary judgment on the basis that the plaintiff failed to make a prima facie showing of negligence.   The plaintiff opposed the motion, claiming merely that the case was not ripe for summary judgment.   The court granted the defendant's motion for summary judgment dismissing the complaint.

Contrary to the plaintiff's contention, the doctrine of res ipsa loquitur is inapplicable to the facts of this case.   The event leading to the plaintiff's injuries could have occurred in the absence of negligence.   In addition, the plaintiff apparently caused or contributed to her own injury, and the offending instrumentality was not within the exclusive control of the defendant (see, Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 501 N.Y.S.2d 784, 492 N.E.2d 1200;  Corcoran v. Banner Super Market, 19 N.Y.2d 425, 430, 280 N.Y.S.2d 385, 227 N.E.2d 304;  see also, Feblot v. New York Times Co., 32 N.Y.2d 486, 346 N.Y.S.2d 256, 299 N.E.2d 672;  Cacciolo v. Port Auth. of N.Y. & N.J., 186 A.D.2d 528, 588 N.Y.S.2d 350;  Finocchio v. Crest Hollow Club at Woodbury, 184 A.D.2d 491, 584 N.Y.S.2d 201;  Birdsall v. Montgomery Ward & Co., 109 A.D.2d 969, 486 N.Y.S.2d 461, affd. 65 N.Y.2d 913, 493 N.Y.S.2d 456, 483 N.E.2d 131;  Lawrence v. Davos, Inc., 46 A.D.2d 41, 360 N.Y.S.2d 730;  Koch v. Otis Elevator Co., 10 A.D.2d 464, 200 N.Y.S.2d 700).

MEMORANDUM BY THE COURT.