Schwab Katz & Dwyer, LLP, New York, NY (Harry Steinberg
and Stewart G. Milch of counsel), for appellants Lexreal
Associates Limited Partnership, Boston Properties, Inc., and
Boston Properties Limited Partnership.
Ahmuty, Demers & McManus, Albertson, NY (Glenn A.
Kaminska and Nicholas M. Cardascia of counsel), for appellant
Otis Elevator Company.
J. Rayo, P.C., Brooklyn, NY (Elizabeth Mark Meyerson of
counsel), for respondents.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
defendants Lexreal Associates Limited Partnership, Boston
Properties, Inc., and Boston Properties Limited Partnership
appeal, and the defendant Otis Elevator Company separately
appeals, as limited by their respective briefs, from so much
of an order of the Supreme Court, Kings County (Walker, J.),
dated January 23, 2015, as denied their respective motions
for summary judgment dismissing the complaint insofar as
asserted against each of them.
that the order is affirmed, with one bill of costs payable by
the appellants appearing separately and filing separate
plaintiff Fadil Orahovac (hereinafter the injured plaintiff)
was employed as a freight elevator operator at a building
owned by the defendants Lexreal Associates Limited
Partnership, Boston Properties, Inc., and Boston Properties
Limited Partnership (hereinafter collectively the Boston
Properties defendants). The defendant Otis Elevator Company
(hereinafter Otis) was the elevator maintenance company that
serviced the elevators in the building. On November 5, 2004,
the injured plaintiff allegedly sustained physical injuries
while operating a freight elevator when it suddenly dropped
from the 27th to the 23rd floor, coming to an abrupt stop.
injured plaintiff, and his wife suing derivatively, commenced
this action against the Boston Properties defendants, Otis,
and others. The Boston Properties defendants and Otis
separately moved for summary judgment dismissing the
complaint insofar as asserted against each of them, and the
Supreme Court denied their respective motions. We affirm.
elevator company which agrees to maintain an elevator in safe
operating condition may be liable to a passenger for failure
to correct conditions of which it has knowledge or failure to
use reasonable care to discover and correct a condition which
it ought to have found" (Rogers v Dorchester
Assoc., 32 N.Y.2d 553, 559; see Reed v Nouveau El.
Indus., Inc., 123 A.D.3d 1102, 1103; Papapietro v
Kone, Inc., 123 A.D.3d 894, 895; Green v City of New
York, 76 A.D.3d 508, 509). Similarly, a building owner
that hires an elevator maintenance company to maintain the
elevator may be found liable if the owner received notice of
a defect and failed to notify the elevator company about it
(see Tucci v Starrett City, Inc., 97 A.D.3d 811,
812; Oxenfeldt v 22 N. Forest Ave. Corp., 30 A.D.3d
both Otis and the Boston Properties defendants failed to
establish their respective prima facie entitlement to
judgment as a matter of law. The evidence offered in support
of their respective motions, which included a transcript of
the injured plaintiff's deposition testimony and the bill
of particulars describing the accident, failed to
demonstrate, prima facie, that the elevator operated properly
and was not defective, or that they had no actual or
constructive notice of any alleged defective condition
(see Papapietro v Kone, Inc., 123 A.D.3d at 895;
Dykes v Starrett City, Inc., 74 A.D.3d 1015, 1016;
Kucevic v Three Park Ave. Bldg. Co., L.P., 55 A.D.3d
792, 793; Gilbert v Kingsbrook Jewish Ctr., 4 A.D.3d
392, 392-393). These failures to make a prima facie showing
of entitlement to judgment as a matter of law required the
denial of the motions, regardless of the sufficiency of the
opposition papers (see Winegrad v New York Univ. Med.
Ctr., 64 N.Y.2d 851, 853).
remaining contention of Otis and the Boston Properties
defendants is improperly ...