Opinion
2018-12149 Index No. 503868/13
04-21-2021
Jeanne KIM, plaintiff, v. PARK HILL OWNERS, INC., et al., appellants, et al., defendants, Ultimate Elevator Corp., respondent.
Michael Pressman (Stuart B. Cholewa and Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Anthony F. Destefano ], of counsel), for appellants. Gallo Vitucci Klar LLP, New York, N.Y. (Andrew N. Fluger of counsel), for respondent.
Michael Pressman (Stuart B. Cholewa and Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Anthony F. Destefano ], of counsel), for appellants.
Gallo Vitucci Klar LLP, New York, N.Y. (Andrew N. Fluger of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Park Hill Owners, Inc., and Triboro Management, Inc., appeal from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated September 7, 2018. The order, insofar as appealed from, granted the motion of the defendant Ultimate Elevator Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Ultimate Elevator Corp. which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as the defendants Park Hill Owners, Inc., and Triboro Management, Inc., are not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Ultimate Elevator Corp.
The plaintiff allegedly was injured when she tripped while stepping into an elevator that was not flush with the landing. She commenced this action against, among others, the defendants Park Hill Owners, Inc. (hereinafter Park Hill), Triboro Management, Inc. (hereinafter Triboro), and Ultimate Elevator Corp. (hereinafter Ultimate). Park Hill and Triboro were the owner and property manager, respectively, of the premises where the accident occurred, and Ultimate was an elevator company that had entered into an agreement with Triboro to service and repair the elevators at the premises. The Supreme Court, inter alia, granted that branch of Ultimate's motion which was for summary judgment dismissing all cross claims insofar as asserted against it, and Park Hill and Triboro appeal. We affirm.
"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, 347 N.Y.S.2d 22, 300 N.E.2d 403 ). Here, Ultimate established its prima facie entitlement to judgment as a matter of law by showing that it did not create or have actual or constructive notice of a defect causing the elevator to mislevel (see San Andres v. 1254 Sherman Ave. Corp., 94 A.D.3d 590, 591, 942 N.Y.S.2d 104 ; Farmer v. Central El., 255 A.D.2d 289, 290, 679 N.Y.S.2d 636 ). In opposition, Park Hill and Triboro failed to raise a triable issue of fact (see Daconta v. Otis El. Co., 165 A.D.3d 753, 754, 85 N.Y.S.3d 528 ; Fasano v. Euclid Hall Assoc., L.P., 136 A.D.3d 478, 479, 24 N.Y.S.3d 636 ; Farmer v. Central El., 255 A.D.2d at 290, 679 N.Y.S.2d 636 ).
The remaining contention of Park Hill and Triboro lacks merit (see Figueroa v. East 168th St. Assoc., L.P., 71 A.D.3d 456, 457, 897 N.Y.S.2d 52 ).
RIVERA, J.P., CHAMBERS, IANNACCI and WOOTEN, JJ., concur.