| Miguel v 41-42 Owners Corp. |
| 2008 NY Slip Op 09566 [57 AD3d 488] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Lidia Miguel, Respondent, v 41-42 Owners Corp., Appellant,and Arista Elevator Co., Inc., Respondent. |
—[*1] Sobel, Ross, Fliegel & Suss, LLP, New York, N.Y. (Michael Sieglitz of counsel), forplaintiff-respondent. Gottlieb Siegel & Schwartz, LLP, Bronx, N.Y. (Stuart D. Schwartz of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendant 41-42 OwnersCorp. appeals,as limited by its brief, from so much of an order of the Supreme Court, Queens County (Grays, J.),dated May 6, 2007, as denied its motion for summary judgment dismissing the complaint, and grantedthe cross motion of defendant Arista Elevator Co., Inc., for summary judgment dismissing the complaintand all cross claims insofar as asserted against it.
Ordered that the appeal from so much of the order as granted that branch of the cross motion ofthe defendant Arista Elevator Co., Inc., which was for summary judgment dismissing the complaintinsofar as asserted against it is dismissed, as the appellant is not aggrieved by that portion of the order(see CPLR 5511); and it is further,
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofgranting that branch of the cross motion of the defendant Arista Elevator Co., Inc., which was forsummary judgment dismissing all cross claims asserted against it, and substituting therefor a [*2]provision denying that branch of the motion; as so modified, the order isaffirmed insofar as reviewed, and the matter is remitted to the Supreme Court, Queens County, forfurther proceedings, including conversion of the cross claims asserted by the defendant 41-42 OwnersCorp. against the defendant Arista Elevator Co., Inc., into a third-party action against the defendantArista Elevator Co., Inc., and amendment of the caption accordingly; and it is further,
Ordered that one bill of costs is awarded to the appellant payable by the defendant Arista ElevatorCo., Inc., and one bill of costs is awarded to the plaintiff payable by the appellant.
The plaintiff allegedly was injured when a malfunctioning elevator door suddenly and unexpectedlyclosed on her leg. In her deposition testimony, the plaintiff stated that she and several other tenants hadcomplained to the building's superintendent that the elevator door was malfunctioning in a similar way atleast six months prior to her accident. The defendant 41-42 Owners Corp. (hereinafter Owners)submitted a notarized statement of the superintendent that he was never made aware of the plaintiff'saccident. The statement was silent, however, as to whether he had been informed of any priormalfunctioning.
The Supreme Court properly denied that branch of Owners' motion which was for summaryjudgment dismissing the complaint insofar as asserted against it. Owners failed to satisfy its prima facieburden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 324-325 [1986]), as it failed to establish the absence of notice of theallegedly defective condition (see Carrillo vPM Realty Group, 16 AD3d 611, 612 [2005]; Casanova v Hamilton-Sharp Props., LLC, 12 AD3d 632, 633 [2004];Kucera v Waldbaums Supermarkets, 304 AD2d 531, 532 [2003]).
Owners' contention that the defendant Arista Elevator Co., Inc. (hereinafter Arista), failed to offergood cause for its untimely cross motion for summary judgment, inter alia, dismissing the cross claimsinsofar as asserted against it was not raised in opposition to the cross motion and, therefore, is notproperly before this Court (see Losito v Cityof New York, 38 AD3d 854, 855 [2007]; Charles v Jamaica Hosp., 30 AD3d 459 [2006]; LaBella v AllstateIns. Co., 261 AD2d 367, 368 [1999]).
Nonetheless, the Supreme Court erred in granting that branch of Arista's cross motion which wasfor summary judgment dismissing all cross claims insofar as asserted against it. "An elevator companywhich agrees to maintain an elevator in safe operating condition may be liable to a passenger for failureto correct conditions of which it has knowledge or failure to use reasonable care to discover andcorrect a condition which it ought to have found" (Rogers v Dorchester Assoc., 32 NY2d 553,559 [1973]; see Fyall v Centennial El. Indus.,Inc., 43 AD3d 1103, 1104 [2007]; Oettinger v Montgomery Kone, Inc., 34 AD3d 969 [2006]; Oxenfeldt v 22 N. Forest Ave. Corp., 30AD3d 391, 392 [2006]; Hall v Barist El.Co., 25 AD3d 584, 585 [2006]). Contrary to the findings of the Supreme Court, themaintenance agreement between Owners and Arista included regular service and repair or replacementof the mechanism which controlled the speed and proper functioning of the elevator doors. Moreover,Arista's president stated in his deposition testimony that each month Arista would inspect the elevatorcar door and the device that should cause the door to retract upon closing on a person. This, coupledwith the plaintiff's deposition testimony, created a triable issue of fact as to whether Arista failed to usereasonable care to discover and correct a condition which it ought to have found. We note that theplaintiff has not appealed from the dismissal of the complaint as against Arista. Accordingly, only thatportion of the order which granted that branch of Arista's cross motion which was for summaryjudgment dismissing the cross claims asserted [*3]against it is before us.Mastro, J.P., Rivera, Covello and Leventhal, JJ., concur.