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Barkley v. Plaza Realty Investors Inc.

Supreme Court of New York, First Department

March 7, 2017

Christine Barkley, Plaintiff-Appellant,
Plaza Realty Investors Inc., et al., Defendants-Respondents.

         Plaintiff 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.

          McGaw, 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, respondents.

          John W. Sweeny, Jr, J.P., Rolando T. Acosta, Angela M. Mazzarelli, Sallie Manzanet-Daniels, Troy K. Webber, JJ.



         Plaintiff 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.

         Infinity's 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.

         Infinity's 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 old.

         Plaintiff 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.

         The 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 court's rulings.

         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.

         Res 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 [1986]). "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 [1997]).

         The 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 [1973] [testimony that an elevator door had malfunctioned in the six months preceding the ...

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