Bryant v. Boulevard Story, LLC

Plaintiffs submissions in opposition to defendants’ motions, including her deposition testimony and her affidavit estimating that the subject elevator misleveled by approximately V-h to 2V2 [429] inches, were sufficient to raise a triable issue of fact as to whether defendant Uplift Elevator, Inc. (Uplift) was negligent in failing “to discover and correct a [misleveling problem] which it ought to have found” (Oettinger v Montgomery Kone, Inc., 34 AD3d 969, 970 [2006], quoting Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]; see also Dickman v Stewart Tenants Corp., 221 AD2d 158 [1995]). Moreover, at this juncture, it cannot be concluded as a matter of law that the doctrine of res ipsa loquitur will not be available to plaintiff at trial, given that the alleged misleveling of the elevator was not an event that ordinarily occurs in the absence of negligence; the evidence shows that defendant Uplift was exclusively responsible for maintenance and repair of the elevator; and the record is devoid of any evidence that plaintiff contributed to the misleveling of the elevator (see Dickman at 158; Burgess v Otis El. Co., 114 AD2d 784, 785-787 [1985], affd 69 NY2d 623 [1986]). Boulevard Story did not meet its burden of establishing entitlement to common-law indemnification against defendant Uplift. The parties’ contract provided that “management and control” over the elevator and its supplies remained exclusively with Boulevard when Uplift was not working on the elevator equipment (Dorfman v Mid-Town Realty Corp., 309 AD2d 538 [2003]). As this language is inconclusive as to Boulevard Story’s right to look to Uplift for performance of its entire duty to plaintiff, summary resolution of its claim for common-law indemnification is presently premature. We have considered the parties’ additional contentions and find them without merit. Concur — Gonzalez, RJ., Mazzarelli, Richter, and Manzanet-Daniels, JJ.