Opinion
76
Decided February 13, 2003.
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered February 4, 2002, which (1) reversed, on the law, an order of the Supreme Court (Allan B. Weiss, J.), entered in Queens County, denying a motion by defendant for summary judgment, (2) granted the motion, and (3) dismissed the complaint.
Plaintiff hotel maid sustained personal injuries when a hotel elevator in which she was riding allegedly rapidly fell, stopped with a violent jerk, and thereafter caused injury to her knee when the doors quickly shut when she attempted to exit. Defendant elevator repair company moved for summary judgment arguing that plaintiff could not invoke the doctrine of res ipsa loquitur because she could not identify in which of two elevators she rode during the accident.
Supreme Court denied defendant's motion for summary judgment, holding that plaintiff's inability to identify the elevator was not fatal to her claim because defendant was responsible for both elevators.
The Appellate Division concluded that plaintiff's inability to identify the elevator in which the accident occurred precluded invocation of res ipsa loquitur.
Brian J. Isaac, for appellant.
Dawn C. DeSimone, for respondent.
Before: Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt, Graffeo and Read concur.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, and defendant's motion for summary judgment dismissing the complaint denied.
Plaintiff seeks to invoke the doctrine of res ipsa loquitur in her personal injury action. Because plaintiff presented evidence of each element of this doctrine (see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219), the Appellate Division erred in granting defendant's motion for summary judgment dismissing the complaint. Plaintiff's inability to identify in which of two service elevators she was riding is not fatal to her claim because no dispute exists that defendant exclusively maintained both elevators.
On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, and defendant's motion for summary judgment denied, in a memorandum.