Appellate Division Reverses Denial of Summary Judgment in Elevator Misleveling Case
The Appellate Division has reversed an order of the Supreme Court, New York County, which denied the summary judgment motion of a building owner/manager in a case arising from a building resident’s claim that she tripped and fell upon leaving an elevator because the elevator misleveled when she attempted to step out of it.
The building owner moved for summary judgment asserting that it had no notice that there was anything wrong with the elevator based on two inspection of the elevator shortly before the incident and one shortly after the incident. The building owner argued that an elevator misleveling is not a transient condition but that once an elevator mislevels it continues to mislevel until the elevator is adjusted or repaired. In this case, when an elevator mechanic was summoned, he found no problem with the elevator after the incident.
The Appellate Division rejected plaintiff’s claim that there had been other incidents of misleveling at other unspecified times and at other elevators as “vague, speculative and conclusory.” The Appellate Division also rejected the opinion of plaintiff’s expert as to possible causes of the misleveling as “speculative and conclusory and lack[ing] evidentiary foundation.”
Plaintiff could not invoke the doctrine of res ipsa loquitur to avoid summary judgment, the Appellate Division held, because the building owner had ceded all responsibility to its elevator contractor. Plaintiff could not invoke res ipsa loquitur against the elevator contractor because the accident could have happened even in the absence of negligence.
The appeal was written by Steven B. Prystowsky and argued by Harry Steinberg. Congratulations to them both.
Fasano v. Euclid Hall Associates, ___ A.D.3d ___, ___ N.Y.S.2d ___ (1st Dep’t January 9, 2015)
