Mallilo & Grossman, Flushing, NY (Francesco Pomara, Jr.,
of counsel), for appellants.
M. Begley, New York, NY (Juan M. Barragan of counsel), for
respondent Port Authority of New York and New Jersey.
Sabatini & Associates (Steve S. Efron, New York, NY, of
counsel), for respondent Schindler Elevator Corporation.
C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal, as limited by their brief, from so much of
an order of the Supreme Court, Queens County (Dufficy, J.),
entered September 10, 2015, as granted those branches of the
separate motions of the defendants Port Authority of New York
and New Jersey and Schindler Elevator Corporation which were
for summary judgment dismissing the complaint insofar as
asserted against each of them.
that the order is modified, on the law, by deleting the
provision thereof granting that branch of the motion of the
defendant Port Authority of New York and New Jersey which was
for summary judgment dismissing the complaint insofar as
asserted against it, and substituting therefor a provision
denying that branch of the motion; as so modified, the order
is affirmed insofar as appealed from, with one bill of costs
to the defendant Schindler Elevator Corporation payable by
the plaintiffs and one bill of costs to the plaintiffs
payable by the defendant Port Authority of New York and New
plaintiff Afrose Ramjohn (hereinafter the injured plaintiff),
who worked at LaGuardia Airport, was walking up a stopped
escalator that normally traveled in an upward direction and
was near the top when it suddenly began to move in a downward
direction. As a result, she allegedly fell and sustained
injuries. Prior to the incident, the injured plaintiff did
not see anyone working on the escalator or anyone standing
near the top or the bottom of the escalator. However,
approximately 30 seconds after the incident, she encountered
an employee of the defendant Port Authority of New York and
New Jersey (hereinafter the Port Authority) near the top of
the escalator. She identified him by virtue of the Port
Authority emblem on his shirt. The Port Authority employee
was carrying "some sort of tool" and informed the
injured plaintiff that he was going to lock the escalator.
injured plaintiff, and her husband suing derivatively,
commenced this action against the Port Authority and its
escalator maintenance contractor, the defendant Schindler
Elevator Corporation (hereinafter Schindler). Schindler and
the Port Authority separately moved, inter alia, for summary
judgment dismissing the complaint insofar as asserted against
each of them. The Supreme Court granted those branches of the
motions. The plaintiffs appeal.
established its prima facie entitlement to judgment as a
matter of law by demonstrating that the escalator was
regularly inspected and maintained, and that Schindler did
not have actual or constructive notice of a prior similar
incident or an ongoing condition that would have caused the
escalator to start without warning or travel in the
opposition direction (see Vilardi v Jones Lang LaSalle,
Inc., 145 A.D.3d 711, 711; Forde v Vornado Realty
Trust, 89 A.D.3d 678, 679; Bazne v Port Auth. of
N.Y. & N.J., 61 A.D.3d 583, 583; Parris v Port
of N.Y. Auth., 47 A.D.3d 460, 460-461). In opposition,
the plaintiffs failed to raise a triable issue of fact.
Contrary to the plaintiffs' contention, Schindler could
not be held liable pursuant to the doctrine of res ipsa
loquitur because the injury-causing incident was not caused
by an agency or instrumentality within the exclusive control
of Schindler (see Kambat v St. Francis Hosp., 89
N.Y.2d 489, 494). Accordingly, the Supreme Court properly
granted that branch of Schindler's motion which was for
summary judgment dismissing the complaint insofar as asserted
the Supreme Court should have denied that branch of the Port
Authority's motion which was for summary judgment
dismissing the complaint insofar as asserted against it.
Although the Port Authority, like Schindler, established its
prima facie entitlement to judgment as a matter of law
(see Vilardi v Jones Lang LaSalle, Inc., 145 A.D.3d
at 711; Forde v Vornado Realty Trust, 89 A.D.3d at
679), the plaintiffs raised a triable issue of fact as to the
applicability of the doctrine of res ipsa loquitur with
respect to the Port Authority (see generally Hall v
Barist El. Co., 25 A.D.3d 584, 585).
the actual or specific cause of an accident is unknown, under
the doctrine of res ipsa loquitur a jury may in certain
circumstances infer negligence merely from the happening of
an event and the defendant's relation to it"
(Kambat v St. Francis Hosp., 89 N.Y.2d at 494). In
order to rely on the doctrine of res ipsa loquitur, a
plaintiff must show that the event was of a kind that
ordinarily does not occur in the absence of someone's
negligence, that it was caused by an agency or
instrumentality within the exclusive control of the
defendant, and that it was not due to any voluntary act or
contribution on the part of the plaintiff (see id.;
Coku v Millar El. Indus., Inc., 12 A.D.3d 340;
Bonura v KWK Assoc., 2 A.D.3d 207, 208). "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
defendant's negligence" (Kambat v St. Francis
Hosp., 89 N.Y.2d at 494, quoting Restatement [Second] of
Torts § 328D, Comment e; see Rondeau v
Georgia Pac. Corp., 29 A.D.3d 1066, 1069).
the plaintiffs pointed to evidence that, once this particular
escalator is stopped, it will not reset itself or otherwise
restart on its own. Someone has to restart the escalator by
physically using a specific key at the top or bottom of the
escalator in order for the escalator to start moving again.
Similarly, there was evidence that the only possible way to
reverse the direction of the escalator was to use that
specific key. Only Port Authority employees had access to the
key, which was kept in a locked cabinet in the office of a
unit maintenance supervisor. The fact that the escalator was
open to the public does not remove it from the exclusive
control of the Port Authority because the mechanism for
controlling the escalator was locked and accessible only by a
specific key (cf. Bazne v Port Auth. of N.Y. &
N.J., 61 A.D.3d at 583-584; Parris v Port of N.Y.
Auth., 47 A.D.3d at 461). Further, approximately 30
seconds after the accident, the injured plaintiff observed a
Port Authority employee at the top of the escalator with a
"tool" to lock the escalator. Under these
circumstances, the plaintiffs raised a triable issue of fact
as to whether this incident was the kind that ordinarily does
not occur in the absence of someone's negligence, that it
was caused by an instrumentality within the exclusive ...