CLARK v. NEW YORK CITY HOUSING AUTHORITY

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Supreme Court, Appellate Division, First Department, New York.

Russell C. CLARK, Jr., Plaintiff-Appellant, v. NEW YORK CITY HOUSING AUTHORITY, et al., Defendants-Respondents.

Decided: May 25, 2004

MAZZARELLI, J.P., SAXE, FRIEDMAN, MARLOW, GONZALEZ, JJ. Fraiden & Palen, Esqs., Bronx (Norman Fraiden of counsel), for appellant. Cullen and Dykman Bleakley Platt LLP, Brooklyn (Joseph Miller of counsel), for NYCHA, respondent. Gottlieb Siegel & Schwartz, LLP, Bronx (Stuart D. Schwartz of counsel), for Start Elevator, Inc., respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 5, 2003, which granted defendants' motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

We affirm the grant of summary judgment dismissing the complaint on the ground that the record establishes that neither defendant received actual or constructive notice of the elevator door malfunction that led to plaintiff's injury.   With regard to defendant elevator maintenance contractor (Start), the deposition testimony of Start's employee establishes that Start, whose contract to maintain the subject elevator began only one day prior to the accident, did not receive notice of the subject defect before the accident occurred, and the record contains no evidence to the contrary.   With regard to defendant New York City Housing Authority (NYCHA), the evidence submitted by NYCHA was, contrary to the motion court's view, sufficient to establish that NYCHA had neither actual nor constructive notice of the door malfunction prior to the accident (see De Sanctis v. Montgomery Elevator Co., 304 A.D.2d 936, 936-937, 758 N.Y.S.2d 419;  Tashjian v. Strong & Assocs., 225 A.D.2d 907, 908-909, 639 N.Y.S.2d 507).   While plaintiff and his father allege that prior complaints were made to NYCHA personnel concerning the malfunctioning doors, such allegations are too conclusory to raise a triable issue of fact (see Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515, 516, 692 N.Y.S.2d 428).   Finally, the affidavit of plaintiff's elevator repair expert failed to raise a triable issue as to whether the repairs that were made to the elevator a few days prior to the accident were related to the malfunction that caused plaintiff's injuries (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).

In view of the foregoing, we need not reach plaintiff's remaining arguments.