- March 12, 2018
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP,
New York, NY (Samantha E. Quinn of counsel), for appellant.
Ahmuty, Demers & McManus, Albertson, NY (Nicholas M.
Cardascia and Glenn A. Kaminska of counsel), for respondents.
E. CHAMBERS, J.P. SHERI S. ROMAN BETSY BARROS LINDA
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from (1) an order of the Supreme Court,
Queens County (Robert J. McDonald, J.), dated February 4,
2016, and (2) an order of the same court dated May 26, 2016.
The order dated February 4, 2016, in effect, granted the
defendants' separate motions for summary judgment
dismissing the complaint. The order dated May 26, 2016,
insofar as appealed from, upon renewal and reargument,
adhered to the determination in the order dated February 4,
that the appeal from the order dated February 4, 2016, is
dismissed, as that order was superseded by the order dated
May 26, 2016, made upon renewal and reargument; and it is
further, ORDERED that the order dated May 26, 2016, is
affirmed insofar as appealed from; and it is further, ORDERED
that one bill of costs is awarded to the defendants.
September 17, 2013, the plaintiff allegedly was injured when
a freight elevator door closed on her at the New York Hilton
Midtown hotel, where she had been employed as a coatroom
attendant. The plaintiff commenced this action against Hilton
Worldwide, Inc. (hereinafter Hilton), which owned the hotel,
and Otis Elevator Company (hereinafter Otis, together with
Hilton, the defendants), the elevator maintenance company
that had a contract to maintain and repair the elevators at
the hotel. After discovery was completed, the defendants
separately moved for summary judgment dismissing the
complaint. By order dated February 4, 2016, the Supreme
Court, in effect, granted the defendants' separate
motions. The plaintiff moved for leave to renew and reargue
her opposition to the defendants' motions. By order dated
May 26, 2016, the Supreme Court granted the plaintiff's
motion and, upon renewal and reagrument, adhered to its
original determination. The plaintiff appeals from both
property owner can be held liable for an elevator-related
injury where there is a defect in the elevator, and the
property owner has actual or constructive notice of the
defect, or where it fails to notify the elevator company with
which it has a maintenance and repair contract about a known
defect'' (Goodwin v. Guardian Life Ins. Co. of
Am., 156 A.D.3d 765, 766 [internal citations omitted];
see Nunez v. Chase Manhattan Bank, 155 A.D.3d 641,
643; Cilinger v. Arditi Realty Corp., 77 A.D.3d 880,
882). "An elevator company which agrees to maintain an
elevator in safe operating condition can also be held liable
to an injured 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'" (Tucci v. Starrett City,
Inc., 97 A.D.3d 811, 812, quoting Rogers v.
Dorchester Assoc., 32 N.Y.2d 553, 559).
to the plaintiff's contention, the defendants made a
prima facie showing of their entitlement to judgment as a
matter of law. In support of their motions, the defendants
submitted, inter alia, a video recording of the incident, a
transcript of the plaintiff's deposition testimony, and
transcripts of the deposition testimony of Winston Matthias,
a security officer employed by Hilton, and Vincent Colon, an
elevator mechanic employed by Otis. This evidence established
that the elevator operated properly and was not defective,
and that the defendants lacked actual or constructive notice
of any alleged defective condition that caused the
plaintiff's injuries (see Goodwin v. Guardian Life
Ins. Co. of Am., 156 A.D.3d at 766; Vilardi v. Jones
Lang LaSalle, Inc., 145 A.D.3d 711, 711; Little v.
Kone, Inc., 139 A.D.3d 678, 679; Reed v. Noveau El.
Indus., Inc., 123 A.D.3d 1102, 1103). The evidence in
the record demonstrated that the elevator door was programmed
to close after a delay of approximately 20 seconds, that the
plaintiff entered the elevator and pressed the button twice
for the sub-basement, that the elevator door remained open
for approximately 20 seconds, that the plaintiff started to
exit the elevator at the exact moment that the door began to
close, and that after the door struck the plaintiff, it
immediately retracted upon detecting an obstruction.
opposition, the plaintiff failed to raise a triable issue of
fact. The affidavit of the plaintiff's expert was
insufficient to raise a triable issue of fact because it was
conclusory, lacking in foundation, and speculative (see
Goodwin v. Guardian Life Ins. Co. of Am., 156 A.D.3d
at 766; Little v. Kone, Inc., 139 A.D.3d at 679;
Forde v. Vornado Realty Trust, 89 A.D.3d 678, 679;
Santoni v. Bertelsmann Prop., Inc., 21 A.D.3d 712).
Accordingly, we agree with the Supreme Court's
determination to, upon reargument, adhere to its original
determination, in effect, granting the defendants'
separate motions for summary judgment dismissing the
we agree with the Supreme Court's determination to, upon
renewal, adhere to its original determination. The new
evidence submitted by the plaintiff, which consisted of
records from the New York City Department of Buildings,
failed to raise a triable issue of fact as to whether prior
problems with the elevator provided the defendants with
actual or constructive notice of the specific defect that
allegedly caused her injuries (see Nunez v. Chase
Manhattan Bank,155 A.D.3d 641; Reed v. Noveau El.
Indus., Inc., 123 A.D.3d at 1103; cf. Papapeitro v.
Kone, Inc.,123 A.D.3d 894, 895). Furthermore, contrary
to the plaintiffs contention, the deposition testimony of
Matthias and Colon did not raise a triable issue of fact as
to whether the elevator ...