| Fyall v Centennial El. Indus., Inc. |
| 2007 NY Slip Op 06947 [43 AD3d 1103] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Marva Fyall, Appellant, v Centennial Elevator Industries,Inc., Respondent, et al., Defendant. |
—[*1] Steven R. Sundheim & Associates, LLC, White Plains, N.Y. (Deborah Summers of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Hurkin-Torres, J.), dated May 2, 2006, which granted themotion of the defendant Centennial Elevator Industries, Inc., for summary judgment dismissingthe complaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantCentennial Elevator Industries, Inc., for summary judgment dismissing the complaint insofar asasserted against it is denied.
The plaintiff allegedly was injured when the elevator she was riding in descended rapidly andcame to an abrupt stop, out of alignment with the floor. The plaintiff commenced this actionagainst, among others, Centennial Elevator Industries, Inc. (hereinafter Centennial), the companyretained to service and maintain the elevator, claiming that the elevator malfunctioned due toCentennial's negligent failure to maintain it in a safe condition.
"An elevator company which agrees to maintain an elevator in safe operating condition maybe liable to a passenger for failure to correct conditions of which it has knowledge or failure touse reasonable care to discover and correct a condition which it ought to have found" (Rogersv Dorchester Assoc., 32 NY2d 553, 559 [1973]; see Hall v Barist El. Co., 25 AD3d 584, 585 [2006]). Centennialestablished, prima facie, that it had no actual or constructive notice of a defective condition in thesubject elevator that might cause it to descend rapidly and stop abruptly (see Carrasco vMillar El. Indus., 305 AD2d 353, 354 [2003]). In opposition, the plaintiff failed to raise atriable issue of fact as to Centennial's actual or constructive notice of such defect (id.).
However, proof that the rapid descent and abrupt, misaligned stop of the elevator was anoccurrence that would not ordinarily occur in the absence of negligence, that the maintenance andservice of the elevator was within the exclusive control of Centennial, and that no act ornegligence on the plaintiff's part contributed to the happening of the accident, is a basis forliability under the doctrine of res ipsa loquitur (see Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006];Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]; Garrido v International Bus. Mach. Corp.[IBM], 38 AD3d 594, 596-597 [2007]). Here, Centennial did not negate the applicabilityof that doctrine. Therefore, the Supreme Court erred in granting Centennial's motion forsummary judgment dismissing the complaint insofar as asserted against it. Crane, J.P., Goldstein,Skelos and Carni, JJ., concur.