Allen v. Woods Management Co.

Order, Supreme Court, Bronx County (Patlow, J.), entered November 5, 1980, setting aside a jury verdict in favor of the defendants as against the [531] weight of evidence and ordering a new trial, affirmed with costs to abide the event. Defendants appeal from an order of the Supreme Court setting aside a jury verdict in their favor in a negligence action, and directing a new trial. We affirm for the reasons set forth by the trial court as well as for the additional reasons set forth hereinafter. The plaintiff, an elderly woman, sustained injuries when her arm was caught by the door closing in a service elevator, and the elevator thereafter descending from the ninth to the first floor. In short, the injuries occurred as a result of the precise kind of event that should not occur if an elevator functions properly. The principal factual trial issue was raised by the contention of the defendants that the elevator door may have caught plaintiff’s arm at a point where it measured less than 2 inches, and therefore the subsequent movement of the elevator did not violate that section of the New York City Administrative Code which provides that the car door or gate of an elevator shall be considered to be in the closed position where the space does not exceed two inches. Defendants’ thesis is based on a circumstantial inference which does not appear to be consistent with a visual inspection of photographs of plaintiff in the hospital which focused on her arm. Nonetheless, considered by itself, the contention raised a factual issue appropriate for a jury determination. When the issue is considered in the light of the totality of the evidence presented at the trial, including most particularly expert evidence submitted on behalf of the defendants, there appears a solid basis for the Trial Judge’s conclusion that the verdict was against the weight of the evidence. The defendants’ witness, chief engineer for Woods Management Co., testified that the elevator was so constructed that the door would retract, and the elevator would not thereafter move, when the door made contact with an obstruction variously described by him as one and one-quarter to one and one-half inches. Since there is no conceivable evaluation of the evidence that would support the conclusion that plaintiff’s arm at any relevant point was one and one-half inches or less, the conclusion is inescapable that the elevator did not function as it was designed to do. Although superficially probative, the evidence submitted by defendants with regard to an examination of the elevator by their technician in the presence of a city inspector a few days after the accident is equally unhelpful to their position on closer analysis. After the mechanic repaired an allegedly unrelated defect, the testimony was to the effect that the elevator door retracted properly when it closed on a wrench measuring one and one-quarter inches. Unless one were to conclude that plaintiff’s arm at the point it was pinned was less than one and one-quarter inches under pressure, a finding for which there is no basis in this record, the question presented is why the door retracted appropriately when tested some days after the event and quite obviously did not do so on the day of the accident. No explanation was offered by the defendants for these inconsistent results, much less a plausible explanation. Such an explanation was offered by a qualified expert called by the plaintiff who examined and tested the elevator one month after the event. When he tested the elevator, the door did not function properly, and in fact performed in a manner fully consistent with its operation when plaintiff suffered her injuries. He testified to observing a specific defect in the elevator mechanism that caused the door to misfunction in the manner described. In addition, plaintiff’s expert testified to explicit observations confirming that the defect was most likely of long duration. Finally, he gave a detailed explanation as to how the- elevator, functioning defectively as he observed it and in the manner described at the time of the accident, could nonetheless have yielded the results reported by the defendants’ expert and the New York City inspector. Undoubtedly the jury was entitled not to credit this testimony. However, when it is considered in light of the nature of the event as it indisputably occurred on the occasion of the accident, the fact obvious from the [532] testimony of defendants’ own experts that the elevator must have misfunctioned on that occasion, and the total failure of the defendants to provide an alternative explanation for the apparently inconsistent performance described above, a strong basis exists for the trial court’s conclusion that the verdict was against the weight of the evidence. The dissenting opinion focuses on the view that the trial court had inappropriately charged res ipsa loquitur and had erroneously relied upon it in the opinion setting aside the jury verdict. Preliminarily it should be observed that a legally sufficient case, indeed a very persuasive case, was presented wholly without regard to that doctrine. In any event, we disagree with the dissenting opinion’s analysis of that doctrine as applied to these facts. In Feblot v New York Times Co. (32 NY2d 486), the authority principally relied upon in the dissenting opinion, the Court of Appeals specifically distinguished from the holding of that case (pp 495-496) “falling elevator and defective interlock cases” in which the injured plaintiff had “no control whatever over the mechanism of the elevator responsible for the accident.” The instant case clearly falls within the exceptions thus delineated to the holding in Feblot rather than to the holding itself. Concur — Sandler, Markewich and Lupiano, JJ.