Hodges v. Royal Realty Corp.

Full title: MINDY HODGES and CLINTON HODGES, Plaintiffs-Respondents, v. ROYAL REALTY…

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Jul 5, 2006

2006 N.Y. Slip Op. 51267 (N.Y. App. Term 2006)

Opinion

570866/05.

Decided July 5, 2006.

Defendant Royal Realty Corp. appeals from an order of the Civil Court, New York County (Saliann Scarpulla, J.), entered July 18, 2005, which denied its motion for summary judgment.

Order (Saliann Scarpulla, J.), entered July 18, 2005, affirmed, with $10 costs.

PRESENT: Davis, J.P., Gangel-Jacob, J.

PER CURIAM:

Plaintiff seeks damages for injuries allegedly sustained when an elevator in which she was riding malfunctioned. Defendant Royal Realty Corp., the managing agent of the office building, sought summary judgment dismissal of plaintiff's complaint, arguing lack of notice and the inapplicability of the res ipsa loquitur doctrine. Alternatively, Royal sought common-law indemnification from defendant Schindler Elevator Company, the elevator service company.

The failure to demonstrate notice was not fatal to plaintiff's claim premised upon the doctrine of res ipsa loquitur ( see Mejia v. New York City Transit Authority, 291 AD2d 225), a doctrine which, contrary to Royal's contention, may properly be applied where more than one defendant is in a position to exercise control ( see DiPilato v. H. Park Central Hotel LLC., 17 AD3d 191). We agree that factual questions as to the extent of Royal's responsibility for the maintenance of the elevator were raised by the deposition testimony of Royal's building manager, in which it was acknowledged that although Schindler performed the actual maintenance and repair of the building's elevators, Royal exercised supervisory responsibility for elevator maintenance at the building ( see Felder v. Host Marriott Corp., 276 AD2d 276), and the underlying service contract which provided that possession and control over the subject equipment remained with the owner ( see Dorfman v. Mid-town Realty Corp., 309 AD2d 538.

In view of the Royal's failure to demonstrate freedom from negligence, its motion for common-law indemnification was properly denied at this juncture ( see Correia v. Professional Date Management, Inc., 259 AD2d 60).

This constitutes the decision and order of the court.