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

Gabriel MEZON, et al., Plaintiffs-Respondents, v. DOVER ELEVATOR COMPANY, Defendant-Appellant.

Decided: May 23, 2000

TOM, J.P., ELLERIN, LERNER, ANDRIAS and SAXE, JJ. Jonathan A. Fier, for Plaintiffs-Respondents. Robin J. Marsico, for Defendant-Appellant.

Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about June 15, 1999, which, in an action for personal injuries caused by an allegedly malfunctioning elevator, denied defendant elevator maintenance company's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion was properly denied since defendant, who had a full service contract to maintain and repair the elevators at plaintiff's employer's premises, failed to meet its initial burden of establishing as a matter of law that it exercised “reasonable care to discover and correct a condition which it ought to have found” (Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403;  see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   In any event, assuming that defendant did meet such initial burden, plaintiff's deposition testimony that he observed the elevator door closing too quickly on about five previous occasions in the days preceding the instant occurrence, including one only an hour earlier, coupled with defendant's service obligations under the contract pursuant to which it assigned a resident mechanic to the premises, raised an inference of negligent maintenance or repair sufficiently compelling to defeat summary judgment (see, id., at 561, 347 N.Y.S.2d 22, 300 N.E.2d 403;   Burgess v. Otis Elev. Co., 114 A.D.2d 784, 785, 495 N.Y.S.2d 376, affd. 69 N.Y.2d 623, 511 N.Y.S.2d 227, 503 N.E.2d 692).


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