CRUZ v. OTIS ELEVATOR COMPANY

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

Jeanette CRUZ, Respondent, v. OTIS ELEVATOR COMPANY, Appellant.

Decided: April 28, 1997

Before BRACKEN, J.P., and O'BRIEN, SANTUCCI, FRIEDMANN and GOLDSTEIN, JJ. Ahmuty, Demers & McManus, Albertson, (Frederick B. Simpson, Elizabeth A. Fitzpatrick, and Brendan T. Fitzpatrick, of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated May 21, 1996, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the defendant's motion is granted, and the complaint is dismissed.

The plaintiff was injured when an elevator which she was entering “misleveled”, causing her to trip and fall.   She commenced this personal injury action alleging that her injuries were caused by the defendant's negligent operation, management, maintenance, and control of the elevator.

 Summary judgment should have been granted to the defendant.   The evidence submitted by the defendant was sufficient to demonstrate that it did not operate, maintain, or have control over the elevator for a significant period of time prior to the plaintiff's accident.   The affidavit of the plaintiff's expert merely contains speculative conclusions that upon his future examination of the elevator and pertinent records he should be able to determine that the defendant created or contributed to the defect which caused the plaintiff's accident.   Such conclusory statements are not sufficient to defeat a motion for summary judgment (see, Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533, 569 N.Y.S.2d 337, 571 N.E.2d 645;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Terwilliger v. Dawes, 204 A.D.2d 433, 611 N.Y.S.2d 646;  Wright v. New York City Hous. Auth., 208 A.D.2d 327, 624 N.Y.S.2d 144).

 Furthermore, we reject the plaintiff's contention and the Supreme Court's conclusion that summary judgment was premature because discovery had not occurred.   A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212[f] ) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue (see, Rothbort v. S.L.S. Mgt. Corp., 185 A.D.2d 806, 587 N.Y.S.2d 554;  State of New York v. Wisser Co., 170 A.D.2d 918, 566 N.Y.S.2d 747;  Kenworthy v. Town of Oyster Bay, 116 A.D.2d 628, 497 N.Y.S.2d 712).   Here the plaintiff failed to offer any evidence as to why she had not examined the elevator in question or any pertinent records, nor did she indicate what efforts, if any, were made to conduct this discovery prior to the defendant's motion.

MEMORANDUM BY THE COURT.

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