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SUPREME COURT OF NEW YORK, TRIAL TERM, NEW YORK COUNTY 1969.NY.43502 <>; 311 N.Y.S.2d 141; 63 Misc. 2d 187 November 17, 1969 PAULINE MALLOR ET AL., PLAINTIFFS,v.WOLK PROPERTIES, INC., ET AL., DEFENDANTS Joseph Heller and Herman D. Brand for plaintiffs. Harold Tompkins for Herk Elevator Maintenance, Inc., defendant. Harold M. Foster and Samuel J. Jackman for Wolk Properties, Inc., defendant. Arnold L. Fein, J. Author: Fein

Arnold L. Fein, J.

Author: Fein

 On November 14, 1962, at approximately noon, plaintiff and his now deceased wife entered an automatic elevator on the ninth floor at 740 West End Avenue, Manhattan, a 100-family apartment house where they resided, intending to descend to the street. A woman and a baby in a stroller were in the elevator, which ascended to the eleventh floor, where the lady and baby left the elevator. Plaintiff then pushed the elevator button for the street level. The elevator car began to descend at a normal rate of speed. Suddenly, there was a surge of speed and the elevator car began to sway and to go down "like a shot". Plaintiff pressed the stop switch to no avail. The elevator car continued down the shaft at an increasing rate of speed and did not stop until it hit bottom, when it stopped forcefully, a few inches below street level, causing plaintiff and his wife to be thrown about and to sustain the injuries for which they sue.

Plaintiff was unable to open the elevator door. He pressed the alarm switch for assistance. He and his wife were trapped in the elevator between 15 minutes and one half hour before the elevator door was opened from the outside by emergency personnel.

The building owner's manager, who resided in the building, called as plaintiffs' witness, testified he regularly used the elevator and that it was in good working order until the time of the accident. He knew nothing of how elevators function, and was neither an elevator mechanic nor an expert. The owner, Wolk Properties, Inc. (Wolk), employed no elevator service personnel nor anyone else qualified to inspect or repair the elevator. The manager acknowledged receipt of a City of New York, Department of Buildings, notice of violation, dated August 13, 1962, notifying landlord of a violation, filed July 25, 1962, in pertinent part directing the landlord to "overhaul and properly repair speed governor".

The manager testified that (1) the notice of violation had been forwarded to the co-defendant, Herk Elevator Maintenance, Inc. (Herk); (2) Herk had made repairs, pursuant to a maintenance contract between Wolk and Herk, received in evidence, which had been in force since January 1, 1960; and (3) he had received a card notification that the violation had been removed. However, although the Building Department records were in the courtroom, the manager was unable to produce the card or any other evidence of the removal of the violation or any communication to or from Herk relating to repair, or compliance with the notice of violation. He did not remember when the violation had been removed, although he testified Herk had worked on the elevator and repaired the elevator after it was notified of the violation. Plaintiffs then rested. Decision was reserved on defendants' motions to dismiss. As against defendant Wolk, the landlord, plaintiffs were entitled to rely on the doctrine of res ipsa loquitur to make out a prima facie case (Langner v. Jessup Holding, Inc., 10 A.D.2d 1, mod. 9 N.Y.2d 871). The accident was of a kind which ordinarily would not occur in the absence of someone's negligence. It was caused by an agency within the control of defendant landlord. The accident was not caused by any voluntary action or contributory negligence on the part of the plaintiffs (Corcoran v. Banner Super Market, 19 N.Y.2d 425; Abbott v. Page Airways, 23 N.Y.2d 502; Griffen v. Manice, 166 N. Y. 188; Beinhocker v. Barnes Development Corp., 296 N. Y. 925; Zaninovich v. American Airlines, 26 A.D.2d 155; Whylie v. Craig Hall, Inc., 272 App. Div. 603; see Koch v. Otis Elevator Co., 10 A.D.2d 464). It is immaterial that the complaint and bill of particulars alleged particular acts of negligence on the part of both defendants. It is of no avail to defendant landlord that plaintiffs did not indicate in their complaint and bill of particulars that they would rely on res ipsa loquitur (Whylie v. Craig Hall, Inc., supra ; DeRoire v. Lehigh Val. R. R. Co., 205 App. Div. 549; Abbott v. Page Airways, supra). Plaintiffs were not deprived of the benefit of res ipsa loquitur because they sought to bolster their case by calling landlord's managing agent as their witness and proving through him landlord's knowledge of the existence of a defect alleged to be causally connected with the accident. Such evidence did not purport to furnish a complete explanation of the occurrence. It was fully consistent with the inference of negligence to which plaintiffs were entitled upon mere proof of the accident. Accordingly its introduction did not preclude reliance on res ipsa (Abbott v. Page Airways, supra ; Whylie v. Craig Hall, Inc., supra; Corcoran v. Banner Super Market, supra). The court was not obliged to and did not credit the testimony of the agent that the defect was repaired by Herk, particularly in the light of the agent's failure either to produce the removal notice or to show from the records of the Building Department or otherwise that the violation had been removed, or that the defect had been repaired (Piwowarski v. Cornwell, 273 N. Y. 226; Mueller v. Abington Warehouses, 17 A.D.2d 967; St. Andrassy v. Mooney, 262 N. Y. 368). Although not pertinent on the motion to dismiss on plaintiffs' case, it is noted that on the whole case this defect was shown to be the proximate cause of the accident.

The duty of the landlord to maintain the elevator is beyond dispute (Multiple Dwelling Law, ยง 78; Griffen v. Manice, supra ; Beinhocker v. Barnes Development Corp., supra ; Langer v. Jessup Holding Inc., 10 A.D.2d 1, mod. 9 N.Y.2d 871, supra).

Accordingly, the motion of defendant, Wolk, to dismiss on plaintiffs' case must be denied.

The authorities do not support plaintiffs' effort to invoke res ipsa loquitur against Herk, the maintenance company. The requisite element of exclusive control is said to be lacking in most maintenance company cases. (Beinhocker v. Barnes Development Corp., supra ; Koch v. Otis Elevator Co., supra ; Ames v. Watson Elevator Co., 303 N. Y. 732; Ames v. Jalpur Realty Corp., 20 Misc. 2d 656; Stafford v. Sibley, Lindsay & Curr Co., 280 App. Div. 495; Langner v. Jessup Holding Inc., supra).

The doctrine of the cases is that res ipsa may not be invoked against an elevator maintenance company in the absence of: (1) a provision in its contract with the landlord reserving control, or (2) a finding of its physical presence on the premises at the time of the accident or shortly before. This rule seems to give inadequate recognition to the fact that in most modern buildings actual control as a practical matter is manifestly in both the landlord and the maintenance company where, as here, their contract requires the elevator maintenance company regularly to inspect and repair.

Where the defect causing the accident is obviously in the mechanical or motor or safety apparatus of an elevator, the circumstances are such that an inference of negligence should be warranted against both owner and the maintenance company, in the absence of explanation. The unwitting passenger is surely the last to know what went wrong or why. Ordinarily there are no other intervening agencies. The emerging rule as to what makes a prima facie automobile negligence case on behalf of passengers would seem to point the direction (Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132 -- car on the wrong side of the road; Czekela v. Meehan, 27 A.D.2d 565, affd. 20 N.Y.2d 686 -- car out of control; Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83 -- rear end collision; Knise v. Shearer, 30 A.D.2d 741 -- skidding). An explanation by defendant is now held to be called for in such cases. The same policy and practical considerations might well apply in elevator maintenance cases.

An appropriate rationale may also be drawn from the cases holding that even where a number of persons are in control, if the circumstances require an explanation, res ipsa may be invoked against any or all of them. (Schroeder v. City & County Sav. Bank, 293 N. Y. 370; Corcoran v. Banner Super Market, supra.)

The facts adduced by plaintiffs in their case would appear to warrant invocation of res ipsa loquitur in their favor, even under current doctrine. However, even without benefit of the rule, there is sufficient evidence to require denial of Herk's motion to dismiss on plaintiffs' case.

Although Herk's obligations with respect to the inspection, maintenance, servicing and repair of the elevator were undertaken by way of contract, the nature of the instrumentality involved imposed upon Herk the legal duty to perform those contractual obligations in a reasonably careful and prudent manner for the benefit of tenants using the elevator, including plaintiffs, even though they were not parties to the maintenance agreement. (Wroblewski v. Otis Elevator Co., 20 A.D.2d 732, and 9 A.D.2d 294; Wisner v. Harmas Holding Corp., 1 A.D.2d 957; Koch v. Otis Elevator Co., supra ; Kelly v. Watson Elevator Co., 309 N. Y. 49; Beinhocker v. Barnes Development Corp., supra ; Rosenbaum v. Branster Realty Corp., 276 App. Div. 167; Kahner v. Otis Elevator Co., 96 App. Div. 169, affd. 183 N. Y. 512.)

The injured elevator passenger is entitled to recourse against the maintenance company for its negligent performance of its contract with the owner if the passenger establishes such negligence by proving the specific cause of the failure of the elevator and showing either that the maintenance company had prior knowledge of the condition which caused the accident and failed to act with reasonable care to correct it, or that, upon actual inspection, it failed to use reasonable care to discover and then correct the condition which ...

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