Opinion
March 15, 1994
Appeal from the Supreme Court, Kings County (Jules Spodek, J.).
Although the "exclusive control" requirement of res ipsa loquitur does not mean that there must have been only a single person in control of that which is alleged to have caused the injury (see, Butti v. Rollins, 133 A.D.2d 205), the duty assumed by third-party defendant to provide security in its lobby did not extend to assuming responsibility for elevator malfunctions. While third-party defendant did assume the duty of relaying complaints about elevator malfunction to defendants, it cannot be held liable for a breach of that duty in the absence of any evidence that such a complaint had been received (see, Di Marco v. Westinghouse Elec. Corp., 170 A.D.2d 760).
By contrast, the liability of defendants owner and managing agent remains in issue, since their lease with third-party defendant expressly imposed a nondelegable duty upon them to inspect, maintain and repair the elevators, and the accident was not the sort that would ordinarily occur in the absence of negligence (see, Burgess v. Otis El. Co., 114 A.D.2d 784, 786, affd 69 N.Y.2d 623).
Concur — Carro, J.P., Ellerin, Wallach, Kupferman and Nardelli, JJ.