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Fahim Rahman v. Cushman & Wakeman

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 7, 2010

FAHIM RAHMAN,
PLAINTIFF-APPELLANT,
v.
CUSHMAN & WAKEMAN, INC., SCHINDLER ELEVATOR CORPORATION AND RECKSON COURT SQUARE, LLC,
DEFENDANTS-RESPONDENTS,
AND CITIBANK, N.A.,
DEFENDANT.

Per curiam.

Rahman v Cushman & Wakeman, Inc.

Appellate Term, First Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2010

PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), dated November 12, 2009, which granted the motion of defendants Cushman & Wakeman, Inc., Schindler Elevator Corporation and Reckson Court Square, LLC, for summary judgment dismissing the complaint as against them.

Order (Jose A. Padilla, Jr., J.), dated November 12, 2009, modified to deny that branch of the motion of defendants Cushman & Wakeman, Inc., Schindler Elevator Corporation and Reckson Court Square, LLC, seeking summary judgment dismissing the complaint as against Schindler Elevator Corporation, and the complaint reinstated as against that defendant; as modified, order affirmed, without costs.

The moving defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint as against them by demonstrating that they neither created nor had actual or constructive notice of a defective condition in the subject elevator (see Gjonaj v Otis El. Co.,38 AD3d 384 [2007]). In opposition, plaintiff failed to raise a triable issue as to the liability of defendants Cushman & Wakeman, Inc. (the managing agent of the premises) and Reckson Court Square, LLC (the owner of the premises). However, plaintiff raised a triable issue in connection with the applicability of the doctrine of res ipsa loquiturwith respect to defendant Schindler Elevator Corporation, the elevator maintenance company responsible for maintaining the subject elevator (see Fyall v Centennial El. Indus., Inc., 43 AD3d 1103 [2007]; Miller v Schindler El. Corp., 308 AD2d 312 [2003]; Carrasco v Millar El. Indus., Inc., 305 AD2d 353 [2003]; see also Garrido v Intl. Bus. Mach. Corp., 38 AD3d 594 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 07, 2010

20101207

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