Karian v. G & L Realty, LLC

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about November 16, 2005, which denied the motion by defendant P&E Elevator Co., Inc., doing business as Horizon Elevator Co. (P&E), for summary judgment dismissing the complaint and all cross claims as against it, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of P&E accordingly. Plaintiff alleges that, on August 26, 2001, she was injured when she fell from a misleveled elevator cab in the building at 170 West 73rd Street in Manhattan. For a period of about a year and a half ending almost a month prior to plaintiffs mishap, defendant P&E had a contract to service elevators in the [262] building.1 Both P&E’s former president and the superintendent of the building testified, without contradiction, that, during the term of P&E’s service contract, the building staff never notified P&E that any of the elevators in the building were misleveling. Further, plaintiff did not offer any expert evidence that P&E, while its service contract for the building was in effect, should have discovered and corrected any condition of the elevator mechanism in question. Since the record contains no evidence of any negligence by P&E, much less evidence that any such negligence was a substantial factor in causing plaintiff’s accident, P&E was entitled to summary judgment dismissing the complaint and all cross claims as against it. In arguing for a contrary result, the dissent focuses on certain matters appearing in the record that — however relevant they may be to other aspects of the case — do not show that P&E, while its contract was in effect, had notice of a specific defect in the subject elevator that may have been the cause of plaintiffs accident. We recognize, of course, that plaintiff and other residents of the building testified that they noticed that the subject elevator was misleveling during the term of P&E’s contract, and that they notified building personnel of this problem. Such testimony, while obviously raising an issue as to whether the building’s owner/manager had notice of a misleveling problem, simply does not constitute evidence that the owner/ manager (assuming it had such notice) notified P&E of the problem. In this regard, we note that there is no claim that communications between the owner/manager and P&E were within the knowledge of the complaining tenants. In sum, the flaw in the dissent’s position is in equating notice to the owner/ manager with notice to P&E. Further, we reject the dissent’s view that the possibility that the trier of fact will discredit the building superintendent’s testimony suffices to raise a triable issue as to whether the superintendent notified P&E of the elevator problems to which the tenants testified. By the dissent’s reasoning, testimony to any fact constitutes evidence of both that fact and its opposite; if this were the law, summary judgment could never be granted. Nor is it of any help to plaintiff that an expert with the [263] company the owner/manager hired to modernize the building’s elevators characterized them as, “[i]n general, . . . extremely old, neglected, in disrepair and in need of elevator modernization.” Neither plaintiff nor the dissent points to any testimony by this expert, or any one else, identifying a specific cause of the accident. Nor is there any offer of proof that the cause of plaintiffs accident existed while P&E still had responsibility for the elevators, and that such cause should have been detected by P&E in the course of its monthly maintenance. We reject the dissent’s assertion that further discovery is warranted. In this regard, we note that no basis exists for holding P&E responsible for the dearth of documentary evidence of its service to plaintiffs building. There is no suggestion that P&E can be held responsible for the building superintendent’s destruction of his copies of P&E’s work tickets, or for his failure to keep any log of communications with P&E and its work in the building. With regard to P&E’s work records, which are being held by the New York County District Attorney, plaintiff does not suggest when such records may become available for use in this action, nor do her attorneys detail any efforts they have made to obtain access to these records. Thus, the dissent’s suggestion that such records “may be subject to production” is nothing but unsupported speculation. In fact, not even plaintiff has argued that she should be afforded additional time for discovery, nor has plaintiff claimed that there is a reasonable likelihood that additional discovery would yield any more relevant evidence. In this regard, we note that the dissent’s suggestion that “[p]laintiff may be able to discover the identity of other employees who may have conveyed the tenants’ complaints to P&E” finds no echo in plaintiffs brief, and is not supported by a whit of evidence. In addition, while the dissent seems to be concerned that P&E’s contract has (according to plaintiff) “mysteriously disappeared,” the dissent does not suggest any way in which this document could bear upon the issue presented by this appeal. There is no dispute that P&E had responsibility for maintenance of the elevators while its contract was in effect; the problem for plaintiff and the dissent is that P&E’s contract was terminated nearly a month before plaintiffs accident. We do not question the well-settled principle that circumstantial evidence will suffice to support an inference of negligence where the defendant company has “exclusive control” of elevator maintenance (Rogers v Dorchester Assoc., 32 NY2d 553, 561 [1973]). That principle is limited, however, to cases where such “exclusive control” by the defendant exists at the time of the [264] accident, as was true in Rogers.2 On this appeal (which concerns the potential liability of P&E only), the dissent’s reliance on the Rogers principle is misplaced precisely because P&E did not have “exclusive control” of elevator maintenance at the time of the accident. Again, P&E’s contract was terminated nearly a month before the accident, at which time a new company (which plaintiff is also suing) assumed “exclusive control” of elevator maintenance in the building. Our decision in Macon v Arnlie Realty Co. (190 AD2d 642 [1993]), which the dissent cites, does not stand for the proposition that negligence may be inferred from nothing more than the fact that an elevator maintenance company was responsible for the subject elevator until a relatively brief period of time before the plaintiffs accident. In order to defeat a well-supported summary judgment motion by an elevator maintenance company whose responsibility ceased prior to the accident, a plaintiff must be able to point to specific evidence from which it may reasonably be inferred that such company, while its contract was in effect, was negligent in the discharge of its duties, and that such negligence was causally related to the plaintiffs accident. Here, plaintiff, who fails to offer any explanation for the cause of her accident, points to no such evidence. Concur — Friedman, Sullivan, Gonzalez and McGuire, JJ. Footnotes [1] The dissent, pointing to P&E’s receipt from the building of a termination letter dated August 10, 2001, complains that we “inaccurately” state that P&E’s contract was terminated “almost a month” before plaintiffs accident on August 26. The dissent’s complaint is without merit. P&E’s former president testified that a representative of the building’s management company told him “verbally” that P&E was “off the building” as of August 1, 2001. The termination was subsequently confirmed by the letter of August 10 to which the dissent refers. [2] The dissent quotes a dictum from Corcoran v Banner Super Mkt. (19 NY2d 425, 431 [1967] [which presented an issue of concurrent control, not successive control]), in which the Court of Appeals referred to the holding of a California case that concerned a manufacturer’s liability for an exploding soda bottle. The dissent also relies on Markel v Spencer (5 AD2d 400 [1958], affd 5 NY2d 958 [1959]), a case concerning Ford Motor Company’s liability for a defective automobile it had manufactured. We do not believe that either the Corcoran dictum or Market allows plaintiff to proceed on a res ipsa loquitur theory against an elevator contractor that neither manufactured the elevator in question, nor had exclusive control of its maintenance for nearly a month before the occurrence of the accident. Swensson v New York, Albany Despatch Co. (309 NY 497 [1956]), which the dissent also cites, held that a vehicle’s brake failure provided a basis for inferring negligence on the part of the company that, after repairing and reconditioning the vehicle, had relinquished control of it on the very day of the accident. In this case, P&E had not had control of the elevator’s maintenance, and another company did have such control, for about 26 days prior to plaintiffs accident.