VAYNSHTEYN v. COHEN (1999)

In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Rappaport, J.), dated June 29, 1998, which granted the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against them, and (2) an order of the same court, dated November 24, 1998, which denied the plaintiffs' motion to renew and/or reargue, which was, in effect, for reargument.

ORDERED that the appeal from the order dated November 24, 1998, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated June 29, 1998, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The plaintiff Sarra Vaynshteyn was injured in a fall which occurred while exiting an elevator located in a building owned by the defendant 665 Parkway Company.   She and her husband commenced this action against the 665 Parkway Company, the company's partners, Irving Cohen and Sidney Roth, and the company which serviced and maintained the elevator, the Arista Elevator Company, Inc.  The complaint stated that the defendants were negligent in allowing the dangerous condition of a misleveled elevator to exist and that this negligence was a proximate cause of the accident.   Following depositions, the court granted the defendants' respective motions for summary judgment dismissing the complaint.   We affirm.

 After the defendants made out a prima facie case for summary judgment, the plaintiffs failed to establish a triable issue of fact that any of the defendants had created the dangerous condition complained of or had actual or constructive notice thereof (see, 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).   In addition, at their depositions neither of the plaintiffs could state with surety what caused the accident nor could they state whether they had noticed that the elevator had been misleveled in the past (see, Farmer v. Central Elevator, 255 A.D.2d 289, 679 N.Y.S.2d 636).

 Contrary to the plaintiffs' contention, the court did not err in failing to consider the doctrine of res ipsa loquitor.   This accident could have occurred without any negligence on the part of any of the defendants as testimony adduced during depositions allowed the inference that Sarra, who was attempting to open the exterior door of the elevator, lost her balance when that door was unexpectedly opened by a person waiting for the elevator (see, Braithwaite v. Equitable Life Assur. Soc. of U.S., 232 A.D.2d 352, 648 N.Y.S.2d 628).

Finally, the court properly treated the plaintiffs' motion to renew and/or reargue as a motion to reargue.   The plaintiff failed to introduce any new evidence that was not available at the time their opposition papers to the defendants' motions were filed (see, Bossio v. Fiorillo, 222 A.D.2d 476, 635 N.Y.S.2d 59).   As no appeal lies from an order denying a motion for leave to reargue (see, Carson v. New York City Tr. Auth., 237 A.D.2d 242, 655 N.Y.S.2d 387), the plaintiffs appeal from that order must be dismissed.

MEMORANDUM BY THE COURT.