appeals from the judgment of the Supreme Court, New York
County (Nancy M. Bannon, J.), entered September 21, 2015,
after a jury trial, in favor of defendants.
Albert, Slobin & Rubenstein, LLP, Garden City (Lisa M.
Comeau and Morton Alpert of counsel), for appellant.
Alventosa & Zujac, Jericho (Joseph Horowitz of counsel),
for Infinity Elevator Co., respondent.
Mischel & Horn, P.C., New York (Scott T. Horn and Naomi
M. Taub of counsel), for Plaza Realty Investors Inc., Algin
Management Co., LLC and Laurence Towers Company, LLC,
W. Sweeny, Jr, J.P., Rolando T. Acosta, Angela M. Mazzarelli,
Sallie Manzanet-Daniels, Troy K. Webber, JJ.
was struck by the door of a service elevator in a building
owned by defendant Plaza Realty and managed by defendant
Infinity pursuant to an agreement with the owner. Plaintiff,
a tenant in the building, was injured when the door of the
elevator forcibly closed upon her as she was attempting to
enter the elevator, striking her on the right side of her
body, and propelling her to the ground. Plaintiff observed
that the inner and outer doors of the elevator were
separated; she testified that only one of the doors hit her.
She pressed the button to exit the elevator and the doors
went back into position. Plaintiff testified that she had
experienced a similar problem with the same elevator the week
before. At that time, the door "slammed" into her
laundry cart as she was entering the elevator. She notified
the doorman of the prior incident.
service manager described the elevator in question as having
a single-slide door, meaning that it had an outside and
inside door that moved in tandem when the elevator was
operating properly. The movement of the doors was controlled
by a door operator and controller located on top of the
elevator car. The elevator also had an electric eye on the
edge of the car door that would detect if the door
encountered an obstacle, and cause the door to retract. The
electric eye was not "foolproof, " but was
"pretty close." There was no rubber edging on the
moving door of the elevator. The service manager identified
possible causes of a fast-closing door as a resistor or diode
malfunction or a malfunction in the door operator.
service manager testified that the inner and outer doors
would not have moved separately in the manner described by
plaintiff in the absence of a malfunction. The evidence
showed that Infinity had in fact repaired a problem with the
door operator controller the very day before the accident.
The service manager described the elevator equipment as being
"on its last legs, " and in need of replacement.
The elevators in the building were approximately 30 years
sought to have the case submitted to the jury on a theory of
res ipsa loquitur. Plaintiff also asked the trial court to
charge section 78 of the Multiple Dwelling Law, pursuant to
which an owner has a nondelegable duty to maintain the
premises in safe condition. The trial court refused to charge
either res ipsa or Multiple Dwelling Law § 78. The court
found that plaintiff's failure to offer expert testimony
precluded her from establishing that she did not contribute
to the happening of the accident, and that the event was of a
kind that ordinarily does not occur in the absence of
negligence. The court found that the evidence supported the
conclusion that the elevator was within defendants'
exclusive possession and control.
court refused to admit into evidence an elevator log that
multiple witnesses testified was kept contemporaneously and
in the ordinary course of business and which detailed
multiple problems with the service elevator. The log
indicated, inter alia, that in the months preceding the
accident the service elevator had been stuck on various
floors; that the door was not opening on various floors; that
the elevator had been stuck and unleveled on the 30th floor;
that the elevator had been stuck on the 22nd floor, with the
door staying open; and that on April 2, 2008, the door
"slamm[ed] hard." Plaintiff took exception to the
jury returned a verdict unanimously finding that neither
defendants nor plaintiff had been negligent in connection
with the happening of the accident. Plaintiff's motion to
set aside the verdict was denied, and this appeal ensued. We
now reverse and remand for a new trial.
ipsa loquitur is an evidentiary doctrine which "permits
the inference of negligence to be drawn from the
circumstances of the occurrence" when a plaintiff can
establish that (1) the event is of a kind that ordinarily
does not occur in the absence of negligence; (2) the event
was caused by an agency or instrumentality within the
exclusive control of defendant; and (3) the event was not
caused by the plaintiff's actions (Dermatossian v New
York City Tr. Auth., 67 N.Y.2d 219, 226 ).
"To rely on res ipsa loquitur a plaintiff need not
conclusively eliminate the possibility of all other causes of
the injury. It is enough that the evidence supporting the
three conditions afford a rational basis for concluding that
it is more likely than not' that the injury was caused by
the defendant's negligence" (Kambat v St.
Francis Hosp., 89 N.Y.2d 489, 494 ).
doctrine of res ipsa loquitur has frequently been applied in
cases involving elevator malfunctions, including those
involving doors which unexpectedly closed upon and injured
plaintiffs while attempting to enter and exit an elevator
(see e.g. Ianotta v Tishman Speyer Props., Inc., 46
A.D.3d 297, 298-299 [1st Dept 2007] [res ipsa applicable in a
case in which elevator door with an electric eye unexpectedly
closed upon the plaintiff, even in the absence of prior
incidents of a similar nature noted in the service log];
see also Rogers v Dorchester Assoc., 32 N.Y.2d 553,
557-559  [testimony that an elevator door had
malfunctioned in the six months preceding the ...