| Parris v Port of N.Y. Auth. |
| 2008 NY Slip Op 00197 [47 AD3d 460] |
| January 15, 2008 |
| Appellate Division, First Department |
| Matthew Marlon Parris, Respondent, v Port of New YorkAuthority, Defendant, and Otis Elevator Company, Appellant. |
—[*1] Krinsky & Musumeci, New York City (Carmine V. Musumeci of counsel), forrespondent.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered July 24, 2007,which denied defendant Otis Elevator's motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed toenter judgment in favor of defendant Otis Elevator Company dismissing the complaint against it.
Plaintiff alleges he was injured when the escalator he was riding at the Port Authority BusTerminal suddenly and violently "jerked" and "pulled," causing him to fall backward and strikehis head. Although the escalator had safety devices designed to cause it to stop in the event ofmechanical malfunction, this escalator did not stop but continued to carry plaintiff to the bottom,where he was found unconscious and having a seizure.
On their motion for summary judgment, defendants met their prima facie burden withevidence that, even assuming a mechanical defect, they were not negligent because there was norecord of prior complaints about the escalator, Otis performed regular bimonthly preventativemaintenance, and no problems were indicated in the service maintenance records it kept (see Gjonaj v Otis El. Co., 38 AD3d384 [2007]; Kelly v Old Navy,11 AD3d 345 [2004]). However, the court did err in finding that plaintiff raised an issue offact as to Otis's negligence by submitting an affidavit of a certified mechanical engineer. Withouteven conducting an on-scene inspection, this expert asserted that the escalator could have jerkeddue to deterioration or wearing of various parts, and inferred that Otis had not performednecessary maintenance by replacing certain parts. These suggestions were speculative andunsupported by any evidentiary foundation, thus rendering the expert's opinion of no probativeforce and insufficient to withstand summary judgment (Diaz v New York DowntownHosp., 99 NY2d 542, 544 [2002]; see Vale v Poughkeepsie Galleria Co., 297 AD2d800, 801 [2002]).
Plaintiff's reliance on the doctrine of res ipsa loquitur is unavailing because he failed to [*2]demonstrate that the escalator, which was subject to extensivepublic contact on a daily basis, was in defendant's exclusive control (see Ebanks v New YorkCity Tr. Auth., 70 NY2d 621 [1987]). Concur—Lippman, P.J., Buckley, Gonzalez andSweeny, JJ.