| Nye v Putnam Nursing & Rehabilitation Ctr. |
| 2009 NY Slip Op 03880 [62 AD3d 767] |
| May 12, 2009 |
| Appellate Division, Second Department |
| Martha Nye, Appellant, v Putnam Nursing &Rehabilitation Center et al., Respondents. |
—[*1] Steinberg, Symer & Platt, LLP, Poughkeepsie, N.Y. (Robert R. Haskins of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Dutchess County (Dolan, J.), dated November 19, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly sustained personal injuries when an elevator door closed on her handas she attempted to reopen the closing door. The elevator was located at the premises owned bythe defendant Putnam Nursing & Rehabilitation Center, which had retained the defendantThyssen Krupp Elevator to perform elevator maintenance services. The plaintiff commenced thisaction, and the defendants moved for summary judgment dismissing the complaint contending,inter alia, that they did not create or have actual or constructive notice of any problem with theelevator doors. The Supreme Court granted the motion. We reverse.
"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 Cox v Pepe-Fareri One, LLC, 47AD3d 749 [2008]). In a premises liability case, a defendant moving for summary judgmenthas the initial burden of establishing that it did not create the defective condition or have actualor constructive notice of its [*2]existence for a sufficient lengthof time to discover and remedy it (seeSmith v New York City Hous. Auth., 52 AD3d 808 [2008]; McKeon v Town ofOyster Bay, 292 AD2d 574, 574-575 [2002]).
Here, the defendants failed to meet their initial burden of establishing their prima facieentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). The conflict between the original deposition testimony of an employee of thedefendant Thyssen Krupp Elevator and the corrections he submitted in the errata sheets raised anissue of credibility which could not be resolved on the motion for summary judgment (see Breco Envtl. Contrs., Inc. v Town ofSmithtown, 31 AD3d 359, 360 [2006]; Surdo v Albany Collision Supply, Inc., 8 AD3d 655, 655 [2004];Williams v O & Y Concord 60 Broad St. Co., 304 AD2d 570, 571 [2003]). Additionally,the defendant Putnam Nursing & Rehabilitation Center failed to eliminate all triable issues offact as to whether it had actual or constructive notice of the allegedly defective condition (seeAlvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]). Since the defendants failed to meet their burden of establishingtheir prima face entitlement to judgment as a matter of law, it is unnecessary to consider thesufficiency of the plaintiff's papers in opposition (see Winegrad v New York Univ. Med. Ctr.,64 NY2d at 853; Soomaroo vMainco El. & Elec. Corp., 41 AD3d 465 [2007]). Rivera, J.P., Covello, Dickerson andChambers, JJ., concur.