| Lapin v Atlantic Realty Apts. Co., LLC |
| 2008 NY Slip Op 01624 [48 AD3d 337] |
| February 26, 2008 |
| Appellate Division, First Department |
| Toni Lapin, Appellant, v Atlantic Realty Apts. Co., LLC, etal., Respondents. |
—[*1] Thomas D. Hughes, New York City (Richard C. Rubinstein of counsel), for Atlantic RealtyApts. Co., LLC, respondent. Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Smithtown (James V. Derenze ofcounsel), for Century Elevator, respondent.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered March 26, 2007,which granted defendant Century Elevator's motion and defendant Atlantic Realty's cross motionfor summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff was allegedly injured when her dog's leash slipped into the two-inch gap at theelevator door tread, causing her hand to be pulled into the closing doors. Defendantsdemonstrated their prima facie entitlement to summary judgment as a matter of law by showingthere had been no prior complaints about the elevator, from plaintiff or anyone else, since itsrenovation and modernization three months prior to the accident. Evidence established thatCentury, which serviced the elevator on a twice-monthly basis, had recorded no problems withthe elevator's electronic eye door sensors in the three months since their installation (see Gjonaj v Otis El. Co., 38 AD3d384 [2007]). The property owner's marginally untimely cross motion for summary judgmentwas properly considered by the court because it raised nearly identical issues, inter alia, of lack ofproof of defect and notice, as asserted in Century's timely motion; the court properly searched therecord to grant appropriate relief (seeAltschuler v Gramatan Mgt., Inc., 27 AD3d 304 [2006]).
Plaintiff's opposition papers, including affidavits by herself and an expert safety engineer,failed to raise an issue of fact as to the existence of a defect, and whether defendants had actualor constructive notice. The expert, who inspected the elevator four years after the incident,offered an unsubstantiated conclusion that the elevator doors would not have closed on plaintiff'shand had the electronic sensors been working properly. Plaintiff's averments that defendants hadprior notice of the elevator's malfunctioning through prior complaints constituted inadmissiblehearsay, absent firsthand evidence. To the extent plaintiff averred that she had seen priorcomplaints recorded in the building's lobby logbook, she failed to move for its production.Further, there was no evidence from plaintiff that the alleged prior incidents involved the same orsimilar defects as those that caused her accident (see Gjonaj, 38 AD3d at 385). On thisrecord, [*2]plaintiff's proof of notice was entirely speculative andinsufficient to raise a triable issue of fact. Concur—Lippman, P.J., Tom, Nardelli,Catterson and Moskowitz, JJ. [See 2007 NY Slip Op 30324(U).]