Opinion
2011-11-1
Tyrone FORDE, appellant,v.VORNADO REALTY TRUST, et al., respondents, et al., defendants.
Silbowitz Garafola Silbowitz Schatz & Frederick, LLP, (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. , of counsel), for appellant.Geringer & Dolan, LLP, New York, N.Y. (John A. McCarthy and John T. McNamara of counsel), for respondents.
Silbowitz Garafola Silbowitz Schatz & Frederick, LLP, (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for appellant.Geringer & Dolan, LLP, New York, N.Y. (John A. McCarthy and John T. McNamara of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Schack, J.), dated August 9, 2010, which granted the motion of the defendants Vornado Realty Trust, 731 Commercial LLC, and Otis Elevator Company for summary judgment dismissing the complaint insofar as asserted against them, (2) a resettled order of the same court dated September 27, 2010, and (3) a judgment of the same court dated December 20, 2010, which, upon the order and the resettled order, is in favor of the defendants Vornado Realty Trust, 731 Commercial LLC, and Otis Elevator Company and against him dismissing the complaint.
ORDERED that the appeals from the order and the resettled order are dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The appeal from the intermediate order and the resettled order must be dismissed, because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeals from the order and the resettled order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).
The respondents met their prima facie burden of demonstrating their entitlement to judgment as a matter of law by presenting evidence, in the form of an expert affidavit and deposition testimony of eyewitnesses, that the subject elevator stopped because of a blown fuse, that they lacked notice of a similar recurring problem with the subject elevator, and that the plaintiff's allegations as to how the incident occurred were physically and mechanically impossible ( see Hardy v. Lojan Realty Corp., 303 A.D.2d 457, 755 N.Y.S.2d 901; Braithwaite v. Equitable Life Assur. Socy. of U.S., 232 A.D.2d 352, 353; Koch v. Otis El. Co., 10 A.D.2d 464, 466, 200 N.Y.S.2d 700; see also Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403; Stewart v. World El. Co., Inc., 84 A.D.3d 491, 495, 922 N.Y.S.2d 375; Cilinger v. Arditi Realty Corp., 77 A.D.3d 880, 882–883, 911 N.Y.S.2d 75; Levine v. City of New York, 67 A.D.3d 510, 888 N.Y.S.2d 55; Talapin v. One Madison Ave. Condominium, 63 A.D.3d 909, 910–911, 882 N.Y.S.2d 161; Fyall v. Centennial El. Indus., Inc., 43 A.D.3d 1103, 1104, 843 N.Y.S.2d 137; Gjonaj v. Otis El. Co., 38 A.D.3d 384, 385, 832 N.Y.S.2d 189; Vale v. Poughkeepsie Galleria Co., 297 A.D.2d 800, 801, 748 N.Y.S.2d 65). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's expert was speculative, lacking in foundation, and insufficient to raise a triable issue of fact ( see Cilinger v. Arditi Realty Corp., 77 A.D.3d at 882–883, 911 N.Y.S.2d 75;
Haynes v. Estate of Goldman, 62 A.D.3d 519, 521, 880 N.Y.S.2d 609; Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712, 715, 800 N.Y.S.2d 676; Vale v. Poughkeepsie Galleria Co., 297 A.D.2d at 801, 748 N.Y.S.2d 65; Skidd v. JW Marriot Hotels & Resorts, 2010 WL 2834890, 2010 U.S. Dist. Lexis 68698 [S.D.N.Y.2010]; cf. Stewart v. World El. Co., Inc., 84 A.D.3d at 494, 922 N.Y.S.2d 375).
The plaintiff could not rely on the doctrine of res ipsa loquitur, as he failed to demonstrate “that the [accident] was one that would not ordinarily occur in the absence of someone's negligence” ( Dos Santos v. Power Auth. of State of N.Y., 85 A.D.3d 718, 721, 924 N.Y.S.2d 558; see Cilinger v. Arditi Realty Corp., 77 A.D.3d at 883, 911 N.Y.S.2d 75; Hardy v. Lojan Realty Corp., 303 A.D.2d at 457, 755 N.Y.S.2d 901).
The parties' remaining contentions either need not be addressed in light of our determination or are without merit.