| Pabon v Nouveau El. Indus., Inc. |
| 2008 NY Slip Op 02564 [49 AD3d 702] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Ismael Pabon et al., Respondents, v Nouveau ElevatorIndustries, Inc., Appellant. (Action No. 1.) Cilyn Li, Respondent, v Berdar Equities Co. et al.,Respondents, and Nouveau Elevator Industries, Inc., Appellant. (Action No.2.) |
—[*1] Pollack, Pollack, Isaac & DiCicco, New York, N.Y. (Brian J. Isaac and Jillian K. Rosen ofcounsel), for respondents. McCarthy & Kelly LLP, New York, N.Y. (William P. Kelly of counsel), forplaintiff-respondent. Lawrence, Worden & Rainis, P.C., Melville, N.Y. (Roger B. Lawrence, Mary Beth Reilly,and Jeremy Honig of counsel), for defendants-respondents.
In two related actions to recover damages for personal injuries, etc., which were joined fortrial, the defendant Nouveau Elevator Industries, Inc., appeals from an order of the SupremeCourt, Kings County (Kurtz, J.), dated September 25, 2006, which denied its motion forsummary judgment dismissing the complaints in both actions insofar as asserted against it.[*2]
Ordered that the order is affirmed, with costs.
On October 3, 2002 Cilyn Li, the plaintiff in action No. 2, was a passenger in a freightelevator operated by Ismael Pabon, a plaintiff in action No. 1. As that elevator was descending, itallegedly suddenly sped up and, traveling at three times its normal speed, plunged into thebasement of a building owned by Berdar Equities Co., a defendant in action No. 2 (hereinafterthe owner). Earlier that day, Pabon and other freight elevator operators allegedly noticed that theelevator was, at times, moving faster than usual. At his deposition, Pabon testified that hecomplained about the condition to the superintendent of the building, who told him to continueusing the elevator.
Since December 2001, at the latest, Nouveau Elevator Industries, Inc. (hereinafter Nouveau),the defendant in action No. 1 and a defendant in action No. 2, had maintained the subject elevatorunder a service agreement with the owner. Nouveau moved for summary judgment dismissingthe complaints in both actions insofar as asserted against it on the ground, among others, thatPabon's continued operation of the elevator after he noticed it traveling faster than normal was anintervening and superseding cause, relieving it of any liability. The Supreme Court denied themotion, and we affirm.
Nouveau failed to establish, prima facie, its entitlement to judgment as a matter of law. Evenassuming that Pabon had, in fact, previously observed the elevator traveling faster than normal,that by itself is not, as a matter of law, an unforeseeable superseding cause which severed anycausal connection between Nouveau's negligence and the plaintiffs' injuries, precluding liability(see Bell v Board of Educ. of City of N.Y., 90 NY2d 944, 946-947 [1997]; Kush vCity of Buffalo, 59 NY2d 26 [1983]; Derdiarian v Felix Contr. Corp., 51 NY2d 308,315-317 [1980]; Torres v New York City Hous. Auth., 270 AD2d 100 [2000]; cf. Buchholz v Trump 767 Fifth Ave.,LLC, 5 NY3d 1, 9 [2005]; Weingarten v Windsor Owners Corp., 5 AD3d 674, 677 [2004];Wright v New York City Tr. Auth., 221 AD2d 431, 431-432 [1995]). In light of thisdetermination, we need not examine the sufficiency of the opposition papers (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Kelly v Rehfeld, 26 AD3d 469 [2006]). Lifson, J.P., Ritter, Florioand Carni, JJ., concur.