Opinion
April 15, 1971
Determination of Appellate Term, First Judicial Department, entered on June 10, 1970, reversed, on the law, without costs and without disbursements, and the judgment of the Civil Court of the City of New York, New York County, entered on November 8, 1968, directing judgment in favor of defendant Otis dismissing the complaint, is reinstated. There is no proof that Otis Elevator Company was in possession or control of the elevator at the time of the claimed accident. On the day that the accident occurred, the elevator was operated by a person who was not connected with Otis Elevator Company in any way. ( Kelly v. Otis Elevator Co., 283 App. Div. 363, affd. 308 N.Y. 805; see, also, Koch v. Otis Elevator Co., 10 A.D.2d 464.) Corcoran v. Banner Super Market ( 19 N.Y.2d 425) is inapplicable. In that case the instrumentality causing the plaintiff's injury was jointly controlled by the defendant and another. The Court of Appeals pointed out that it was still essential in a res ipsa loquitur case for the proof to establish that the accident was one which in the ordinary course of events could not have happened except for the negligence of the party sought to be charged with liability under that doctrine.
I would affirm for the reasons stated by the Appellate Term majority. Since appellant stipulated to judgment absolute, judgment should be entered against it on the issue of liability and to be followed by an assessment of damages.