Barbara Casey, etc., Plaintiff–Respondent, v. New York Elevator & Electrical Corporation, Defendant–Appellant, Winoker Realty Co., Inc., Defendant–Respondent.

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

Barbara Casey, etc., Plaintiff–Respondent, v. New York Elevator & Electrical Corporation, Defendant–Appellant, Winoker Realty Co., Inc., Defendant–Respondent.

4630

Decided: March 29, 2011

Mazzarelli, J.P., Saxe, Renwick, DeGrasse, Richter, JJ. Babchik & Young, LLP, White Plains (Bruce Young of counsel), for appellant.

Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York (Richard M. Steigman of counsel), for Barbara Casey, respondent.

Patrick J. Crowe, Melville, for Winoker Realty Co., Inc., respondent.

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Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 12, 2010, which denied New York Elevator's motion for dismissal pursuant to CPLR 3211(a)(1) and (7) and/or CPLR 3211(c), unanimously affirmed, without costs.

On September 12, 2008, plaintiff's decedent Kieran Casey fell to his death in an elevator shaft at a building managed by defendant Winoker and for which defendant New York Elevator allegedly maintained the elevator.

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 [1973];  Burgess v. Otis El. Co., 114 A.D.2d 784, 785 [1985], affd 69 N.Y.2d 623 [1986] ).   That duty, is limited, however, to cases where, pursuant to contract, the elevator company has assumed “exclusive control” of the elevator at the time of the accident and no duty can be imparted by a “piecemeal oral contract” (see Verdi v. Top Lift & Truck Inc., 50 AD3d 574 [2008];  Karian v. G & L Realty, LLC, 32 AD3d 261, 263–264 [2006] ).   There is no evidence in this record that New York Elevator was under contract such to impart a duty upon it to third persons (see Rogers, 32 N.Y.2d at 559).

However, even in the absence of a contract, an elevator company can be liable in tort, where it negligently services and/or inspects an elevator (see Alejandro v Marks Woodworking Mach. Co., 40 A.D.2d 770 [1972];  affd 33 N.Y.2d 856 [1973];  Alsaydi v. GSL Enters., 238 A.D.2d 533 [1997] ).   The documentary evidence proffered by New York Elevator, at this stage, does not, as a matter of law, prove that it did not negligently inspect, service or maintain the freight elevator prior to the accident (Bartee v D & S Fire Protection Corp., 79 AD3d 508 [2010] ).

Questions of fact also exist as to whether New York Elevator was negligent when it performed prior Department of Buildings inspections (see Sanzone v National El. Inspection Serv., 273 A.D.2d 94 [2000];  Alsaydi, 238 A.D.2d at 534).   The affidavit submitted by New York Elevator's field supervisor was not based on personal knowledge, was otherwise conclusory, and therefore was insufficient to satisfy New York Elevator's prima facie burden on the motion (see CPLR 3211(d);  3212[f];  Bartee, 79 AD3d at 508).   There are also questions of fact as to what the owner and managing agent knew about the condition of the elevator, preventing a finding at this stage, that any action or inaction of New York Elevator could not have been the proximate cause of the accident (see McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62 [1962];  Connor v. 595 Realty Assoc., 23 A.D.2d 69 [1965], appeal dismissed 17 N.Y.2d 493 [1966] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK