CARRASCO v. MILLAR ELEVATOR INDUSTRIES INC (2003)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated February 21, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff allegedly was injured when he became trapped for one hour in an elevator that passed the floor he designated, stopped suddenly at another floor, and then began to shake and vibrate.   The plaintiff commenced this action against the defendant, the company retained to service and maintain the elevator, claiming that the elevator malfunctioned due to the defendant's negligent failure to maintain it in a safe condition.   The defendant successfully moved for summary judgment dismissing the complaint, and this appeal ensued.

 “An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” (Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403;  see Morales v. Hefran Realty Co., 202 A.D.2d 407, 609 N.Y.S.2d 850).   The defendant established prima facie that it had no actual or constructive notice of a defective condition in the subject elevator, as that elevator had neither stopped between floors nor shook or vibrated prior to this incident, and the defendant had not received any complaints regarding such activity (cf.   Bigio v. Otis Elevator Co., 175 A.D.2d 823, 573 N.Y.S.2d 196;  O'Neill v. Mildac Props., 162 A.D.2d 441, 556 N.Y.S.2d 387;  Smith v. Jay Apts., 33 A.D.2d 624, 304 N.Y.S.2d 737;  Pugh v. Weber, 29 A.D.2d 567, 286 N.Y.S.2d 339).   In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had actual or constructive notice of any defective condition in the elevator such as would make it prone to stop between floors (see Tashjian v. Strong & Assocs., 225 A.D.2d 907, 639 N.Y.S.2d 507;  Di Marco v. Westinghouse Elec. Corp., 170 A.D.2d 760, 565 N.Y.S.2d 320;  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).

 However, summary judgment dismissing the complaint was improperly granted, as the plaintiff has raised a triable issue of fact as to the applicability of the doctrine of res ipsa loquitur (see Weeden v. Armor Elevator Co., 97 A.D.2d 197, 468 N.Y.S.2d 898).   Where, as here, the elevator was in the defendant's possession and control and the plaintiff did not contribute to the malfunction complained of, there is an issue of fact as to whether the stopping at another floor, and shaking and vibrating of an elevator is an event that would not ordinarily occur were due care exercised in the elevator's maintenance (see Dickman v. Stewart Tenants Corp., 221 A.D.2d 158, 633 N.Y.S.2d 35;  Sirigiano v. Otis Elevator Co., 118 A.D.2d 920, 499 N.Y.S.2d 486;  Burgess v. Otis Elevator Co., 114 A.D.2d 784, 495 N.Y.S.2d 376, affd. 69 N.Y.2d 623, 511 N.Y.S.2d 227, 503 N.E.2d 692;  Weeden v. Armor Elevator Co., supra;  Smith v. Jay Apts., supra).   Thus, the defendant is not entitled to summary judgment.