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Narvaez v. New York City Housing Authority

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 5, 2009

YESENIA NARVAEZ, AN INFANT BY HER GUARDIAN, RUTH OSORIO, ET AL., PLAINTIFFS-APPELLANTS,
v.
NEW YORK CITY HOUSING AUTHORITY, DEFENDANT-RESPONDENT.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered June 17, 2008, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Saxe, Moskowitz, DeGrasse, JJ.

25383/98

Infant plaintiff was allegedly injured when the elevator door closed too quickly, causing her head to be pinched by the closing door. Defendant NYCHA demonstrated its prima facie entitlement to summary judgment as a matter of law by showing there had been no prior complaints about this condition prior to the accident. Evidence established that NYCHA, which serviced the elevator on a regular basis, had recorded no problems with the elevator door closing too quickly (see Gjonaj v Otis El. Co., 38 AD3d 384 [2007]).

Plaintiffs' opposition papers failed to raise an issue of fact as to the existence of a defect and whether defendant had actual or constructive notice of it. Plaintiffs failed to submit any expert testimony supporting their contention that the elevator was defective and that such defect caused the accident. Moreover, on this record, plaintiffs' proof of notice was entirely speculative (see Lapin v Atlantic Realty Apts. Co., LLC, 48 AD3d 337 [2008]). Neither plaintiffs' deposition testimony nor an affidavit by a neighbor sufficiently established that anyone made any complaint to NYCHA or that NYCHA knew of any complaints concerning the elevator doors. Plaintiffs offered insufficient detail as to when and how often the elevator door closed too quickly and made unsubstantiated conclusions that there were prior accidents involving a similar malfunctioning of the door (see Gjonaj, 38 AD3d at 385).

The circumstances of this case do not warrant the application of the doctrine of res ipsa loquitur (see Feblot v New York Times Co., 32 NY2d 486, 495 [1973]; Parris v Port of N.Y. Auth., 47 AD3d 460, 461 [2008].

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090505

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