| Hudson v Tower El. |
| 2009 NY Slip Op 02327 [60 AD3d 906] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Dorothy Hudson, Respondent, v Tower Elevator,Appellant. |
—[*1] Jeffrey Hirsch, Cedarhurst, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Harkavy, J.), dated October 31, 2007, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"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"(Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]; see Fyall v Centennial El.Indus., Inc., 43 AD3d 1103, 1104 [2007]; Oxenfeldt v 22 N. Forest Ave. Corp., 30AD3d 391, 392 [2006]). The defendant, an elevator company, established its prima facieentitlement to judgment as a matter of law on the issue of its responsibility for maintaining theelevator by proffering evidence that, at the time of the plaintiff's accident, it did not have acontract to maintain the elevator in which she was allegedly injured (see generally Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the plaintiff raised a triable issueof fact as to whether the defendant was contractually obligated to maintain the subject elevator ina safe operating condition on the date her accident occurred (see Rogers v Dorchester Assoc.,32 NY2d at 559).
Additionally, the defendant failed to establish its prima facie entitlement to judgment as amatter of law on the issue of the defect alleged by the plaintiff by showing either that theelevator was not in a defective condition at the time of the plaintiff's accident, or that it lackedconstructive notice of the defect which allegedly caused the plaintiff's injuries (see Gilbert vKingsbrook Jewish [*2]Ctr., 4 AD3d 392 [2004]; Proctorv Rensselaer Polytechnic Inst., 277 AD2d 536, 538 [2000]; cf. Lasser v NorthropGrumman Corp., 55 AD3d 561, 592-593 [2008]; Lee v City of New York, 40 AD3d1048, 1049 [2007]). Accordingly, we need not examine the sufficiency of the plaintiff's paperson this issue (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Rivera, J.P., Florio,Dickerson and Chambers, JJ., concur.