| Casey v New York El. & Elec. Corp. |
| 2011 NY Slip Op 02451 [82 AD3d 639] |
| March 29, 2011 |
| Appellate Division, First Department |
| Barbara Casey, as Administratrix of the Goods, Chattels andCredits of Kieran Casey, Deceased, Respondent, v New York Elevator & ElectricalCorporation, Appellant, and Winoker Realty Co., Inc., Respondent. |
—[*1] Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York (Richard M.Steigman of counsel), for Barbara Casey, respondent. Patrick J. Crowe, Melville, for Winoker Realty Co., Inc., respondent.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered March 12,2010, which denied New York Elevator's motion for dismissal pursuant to CPLR 3211 (a) (1)and (7) and/or CPLR 3211 (c), unanimously affirmed, without costs.
On September 12, 2008, plaintiff's decedent, Kieran Casey, fell to his death in an elevatorshaft at a building managed by defendant Winoker and for which defendant New York Elevatorallegedly maintained the elevator.
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 (Rogersv Dorchester Assoc., 32 NY2d 553, 559 [1973]; Burgess v Otis El. Co., 114 AD2d784, 785 [1985], affd 69 NY2d 623 [1986]). That duty is limited, however, to caseswhere, pursuant to contract, the elevator company has assumed "exclusive control" of theelevator at the time of the accident and no duty can be imparted by a "piecemeal oral contract"(see Verdi v Top Lift & Truck Inc.,50 AD3d 574 [2008]; Karian v G & L Realty, LLC, 32 AD3d 261, 263-264[2006]). There is no evidence in this record that New York Elevator was under contract such toimpart a duty upon it to third persons (see Rogers, 32 NY2d at 559).
However, even in the absence of a contract, an elevator company can be liable in tort, whereit negligently services and/or inspects an elevator (see Alejandro v Marks WoodworkingMach. Co., 40 AD2d 770 [1972], affd 33 NY2d 856 [1972]; Alsaydi v GSLEnters., 238 AD2d 533 [1997]). The documentary evidence proffered by New York Elevator,at this stage, does not, as a matter of law, prove that it did not negligently inspect, service ormaintain the freight elevator prior to the accident (Bartee v D & S Fire Protection Corp., 79 AD3d 508 [2010]).
Questions of fact also exist as to whether New York Elevator was negligent when it [*2]performed prior Department of Buildings inspections (seeSanzone v National El. Inspection Serv., 273 AD2d 94 [2000]; Alsaydi, 238 AD2d at534). The affidavit submitted by New York Elevator's field supervisor was not based on personalknowledge, was otherwise conclusory, and therefore was insufficient to satisfy New YorkElevator's prima facie burden on the motion (see CPLR 3211 [d]; 3212 [f];Bartee, 79 AD3d at 508). There are also questions of fact as to what the owner andmanaging agent knew about the condition of the elevator, preventing a finding at this stage, thatany action or inaction of New York Elevator could not have been the proximate cause of theaccident (see McLaughlin v Mine Safety Appliances Co., 11 NY2d 62 [1962];O'Connor v 595 Realty Assoc., 23 AD2d 69 [1965], appeal dismissed 17 NY2d493 [1966]). Concur—Mazzarelli, J.P., Saxe, Renwick, DeGrasse and Richter, JJ.[Prior Case History: 2010 NY Slip Op 30502(U).]