Summary
affirming summary judgment for defendant when plaintiff failed to submit evidence in an admissible form to counter defendant's prima facie showing that the elevator functioned properly
Summary of this case from Francklin v. New York Elevator Co., Inc.Opinion
2002-02226
Argued February 21, 2003.
March 10, 2003.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated January 22, 2002, which granted the separate motions of the defendants Lojan Realty Corp., Investment Properties Associates, Marilyn Edith Silvershein, individually and with Bankers Trust Company, Joan Marcia Wolfson, Bertie Wolfson, and Helmsley-Noyes Co., Inc., and the defendant Central Elevator, Inc., for summary judgment dismissing the complaint insofar as asserted against them.
Bisogno Meyerson, Brooklyn, N.Y. (Elizabeth Mark Meyerson of counsel), for appellant Ishmaiel Hardy, and Longo D'Apice, Brooklyn, N.Y., for appellant Terrance King (one brief filed).
Jacobowitz, Garfinkel Lesman, New York, N.Y. (Fiedelman McGaw [Ross P. Masler] of counsel) for respondents Lojan Realty Corp., Investment Properties Associates, Marilyn Edith Silvershein, individually and with Bankers Trust Company, Joan Marcia Wolfson, Bertie Wolfson, and Helmsley-Noyes Co., Inc.
Geringer Dolan, LLP, New York, N.Y. (John T. McNamara and Robert E. Coleman of counsel), for respondent Central Elevator, Inc.
Before: SANDRA J. FEUERSTEIN, J.P., WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The defendants, who owned, operated and/or serviced and maintained an elevator that allegedly free-fell and came to an abrupt stop after a mainline fuse blew, met their prima facie burden of demonstrating that they had no notice of a similar recurring problem with the elevator, and demonstrated with affidavits of an elevator mechanic and an expert elevator consultant that the allegations were physically and mechanically impossible (see Williams v. Port Auth. of N.Y. N.J., 247 A.D.2d 296; Braithwaite v. Equitable Life Assur. Socy. of U.S., 232 A.D.2d 352; Loughlin v. City of New York, 186 A.D.2d 176, 177). The plaintiffs failed to submit evidence in admissible form to counter the defendants' prima facie showing that the elevator functioned properly (see Braithwaite v. Equitable Life Assur. Socy. of U.S., supra). Moreover, the doctrine of res ipsa loquitur is inapplicable, because the plaintiffs did not demonstrate that the elevator stoppage was the type of event that would not ordinarily occur absent negligence (see Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494; Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226; Koch v. Otis El. Co., 10 A.D.2d 464, 466). Therefore, the defendants were entitled to summary judgment dismissing the complaint.
FEUERSTEIN, J.P., FRIEDMANN, SCHMIDT and MASTRO, JJ., concur.