| Cilinger v Arditi Realty Corp. |
| 2010 NY Slip Op 07715 [77 AD3d 880] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Stephen Cilinger, Individually and as Father and Natural Guardianof Dogukan Cilinger, et al., Appellants, v Arditi Realty Corp., et al.,Respondents. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), for respondentsArditi Realty Corp. and Mayerhauser Realty, Inc. Goldberg Segalla LLP, White Plains, N.Y. (William T. O'Connell of counsel), for respondentD&D Elevator Maintenance & Repair, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.),entered June 29, 2009, as granted that branch of the motion of the defendant D&D ElevatorMaintenance & Repair, Inc., which was for summary judgment dismissing the complaint insofaras asserted against it, and granted that branch of the cross motion of the defendants Arditi RealtyCorp. and Mayerhauser Realty, Inc., which was for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe defendants appearing separately and filing separate briefs.
The defendants Arditi Realty Corp. (hereinafter Arditi) and Mayerhauser Realty, Inc.(hereinafter Mayerhauser), own and manage a building located on Glover Avenue in Yonkers.The building's elevator was maintained by the defendant D&D Elevator Maintenance & Repair,Inc. (hereinafter D&D), pursuant to a contract with Arditi and Mayerhauser. The plaintiffsStephen Cilinger and Nazlihan Cilinger, and their 2½-year-old son, Dogukan Cilinger(hereinafter Dogukan), lived in the building. On March 8, 2000, at about 8:30 p.m., the familyentered the building's elevator in order to get to its apartment. Dogukan's foot became wedgedbetween the floor of the elevator cab and the exterior wall. The elevator doors closed, and theelevator began moving. Ultimately, the Yonkers Fire Department freed Dogukan's foot. City ofYonkers senior elevator inspector Louis Giovannetti inspected the elevator that night and thenext day, and found it to be functioning properly. He concluded that the child's foot was so smallthat the interior elevator door was able to close enough so as to allow contact between the doorand the gate switch at the top of the door, which caused the elevator to begin moving.
The plaintiffs commenced this action against Arditi, Mayerhauser, and D&D in May [*2]2000, alleging that the elevator had been negligently maintained.D&D moved, and Arditi and Mayerhauser cross-moved, inter alia, for summary judgmentdismissing the complaint insofar as asserted against them. In opposition, the plaintiffs submittedthe affidavit of C. Stephen Carr, a practicing engineer with 40 years of experience in the elevatorindustry, who stated that the accident occurred because the gap between the elevator cab and thefloor was excessive, and because the gate switch needed to be adjusted. Carr did not inspect theelevator itself, and based his conclusions on violations found with respect to the elevator almost1½ years after the accident.
The Supreme Court awarded summary judgment to the defendants. The plaintiffs appeal.
To establish that a building owner is liable for an elevator-related injury, a plaintiff mustestablish that there was a defect in the elevator, and that the building owner had actual orconstructive notice of the defect (seeLee v City of New York, 40 AD3d 1048, 1049 [2007]). If the owners hire an elevatormaintenance company to maintain the elevator, liability can be found against the owners if theyreceived notice of a defect and failed to notify the elevator company about it (see Oxenfeldt v 22 N. Forest Ave.Corp., 30 AD3d 391, 391-392 [2006]).
Here, Arditi and Mayerhauser demonstrated their prima facie entitlement to judgment as amatter of law dismissing the complaint insofar as asserted against them by submitting the recordand affidavit of Giovannetti, who inspected the subject elevator the day after the accident andfound it to be functioning properly. In opposition, the plaintiffs submitted Carr's affidavit.However, Carr did not inspect the elevator, and based his opinion on an inspection by a thirdparty that took place almost 1½ years after the accident. Furthermore, Carr failed toarticulate exactly how the cab switch had been misadjusted. He merely stated, in a conclusoryfashion, that it was misadjusted and that this misadjustment was a cause of the accident. Carr didnot state what the proper adjustment would have been, or how the defendants deviated from thatproper adjustment. Conclusory expert opinions are insufficient to raise a triable issue of fact inopposition to a motion for summary judgment (see Brady v Bisogno & Meyerson, 32 AD3d 410 [2006]).
D&D also demonstrated, prima facie, its entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against it. "An elevator company which agrees tomaintain an elevator in safe operating condition may be liable to a passenger for failure to correctconditions of which it has knowledge or failure to use reasonable care to discover and correct acondition which it ought to have found" (Rogers v Dorchester Assoc., 32 NY2d 553, 559[1973]; see Hudson v Tower El., 60AD3d 906, 907 [2009]). Here, the evidence established that there was no defective conditionthat D&D could have discovered through the exercise of reasonable care (see Lee v City ofNew York, 40 AD3d at 1049). The plaintiffs failed to raise a triable issue of fact inopposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Moreover, the Supreme Court properly ruled that the plaintiffs could not rely on the doctrineof res ipsa loquitur, as the plaintiffs failed to demonstrate that either defendant had exclusivecontrol of the elevator (see generally Dermatossian v New York City Tr. Auth., 67 NY2d219 [1986]), or that the accident was one that would not ordinarily occur in the absence ofsomeone's negligence (cf. DiPilato v H.Park Cent. Hotel, L.L.C., 17 AD3d 191, 192 [2005]; Gurevich v Queens Park Realty Corp., 12 AD3d 566, 567 [2004];Coku v Millar El. Indus., Inc., 12AD3d 340 [2004]).
Therefore, the Supreme Court properly awarded summary judgment dismissing thecomplaint to the defendants. Covello, J.P., Leventhal, Hall and Roman, JJ., concur.