Law Offices, New York (Gerald N. Swartz of counsel), for
Fischer LLP, New York (Brian P. McLaughlin of counsel), for
Platta Law Firm, PLLC, New York (Brian J. Vannella of
counsel), for respondent.
Renwick, J.P., Manzanet-Daniels, Gische, Kahn, Singh, JJ.
Supreme Court, New York County (Cynthia S. Kern, J.), entered
November 21, 2016, which, to the extent appealed from as
limited by the briefs, denied defendant 400 E. 84th Street
Associates, LP's motion for summary judgment, and denied
defendant Fujitec America Inc.'s cross motion for summary
judgment, unanimously affirmed, without costs.
Court correctly denied 400 E. 84th Street (the owner) summary
judgment dismissing the complaint, as issues of fact exist as
to whether the owner of the apartment building where
plaintiff fell while entering an elevator had notice of a
misleveling/releveling condition of the elevator (see
Isaac v 1515 Macombs, LLC, 84 A.D.3d 457, 458 [1st Dept
2011], lv denied 17 N.Y.3d 708');">17 N.Y.3d 708 ; Bonifacio
v 910-930 S. Blvd., 295 A.D.2d 86, 91 [1st Dept 2002]).
The record contained ample evidence from which a jury could
find that the owner had actual notice of a recurring,
misleveling problem with the elevator, based on prior similar
incidents shown in the building's logbook and based on
service records of Fujitec, which had contracted to maintain
the elevator (see Martin v Kone, Inc., 94 A.D.3d
446, 447 [1st Dept 2012]; Gjonaj v Otis El. Co., 38
A.D.3d 384, 385 [1st Dept 2007]). Fujitec's servicing of
the elevator in response to those prior complaints raises an
issue of fact as to notice (see Ardolaj v Two Broadway
Land Co., 276 A.D.2d 264, 265 [1st Dept 2000]).
Court correctly denied the owner conditional summary judgment
on its cross claim for common-law indemnification against
Fujitec, as there is an issue of fact as to whether the
owner's liability, if any, is vicarious (see Linares
v Fairfield Views, 231 A.D.2d 418, 420 [1st Dept 1996],
lv dismissed in part and denied in part 89 N.Y.2d
978 ). Due to the adverse inference charge the court
previously granted against the owner, a jury might find that
the owner had actual notice of the misleveling defect on the
day of the accident, before plaintiff's injury. In
addition, given the adverse inference charge, a jury could
find that the owner was negligent in either failing to timely
notify Fujitec of the misleveling defect, or in failing to
remove the elevator from service. Such negligence would bar
the owner from obtaining common-law indemnification from
Fujitec (see Martins v Little 40 Worth Assoc., Inc.,
72 A.D.3d 483, 484 [1st Dept 2010]).
Court correctly denied Fujitec's motion for summary
judgment. Given the disputed issues of fact as to notice of
the misleveling/releveling condition of the elevator, and the
fact that the accident occurred less than a week after
Fujitec had serviced the elevator for releveling, an issue of
fact exists as to whether Fujitec failed to maintain the
elevator in a reasonably safe operating condition (see
Rogers v Dorchester Assoc., 32 N.Y.2d 553, 559 ).
addition, the doctrine of res ipsa loquitur precludes summary
judgment (Dermatossian v New York City Tr. Auth., 67
N.Y.2d 219, 226 ; see Ezzard v One E. Riv. Place
Realty Co., LLC, 129 A.D.3d 159, 162 [1st Dept 2015]).
"The misleveling of an elevator does not ordinarily
occur in the absence of negligence" (Rojas v New
York El. & Elec. Corp., 150 A.D.3d 537, 537-538 [1st
Dept 2017]). Further, the misleveling was apparently caused
by an instrumentality within Fujitec's exclusive control
and was not due to any voluntary action on plaintiff's
part. The application of res ipsa loquitur is not
"overcome by [Fujitec's] evidence that the elevator
was regularly inspected and maintained"
(Ardolaj, 276 A.D.2d at 265). Given the