| Gutierrez v Broad Fin. Ctr., LLC |
| 2011 NY Slip Op 04372 [84 AD3d 648] |
| May 26, 2011 |
| Appellate Division, First Department |
| Esther Gutierrez, Respondent-Appellant, v Broad FinancialCenter, LLC, Respondent, and Schindler Elevator Corporation,Appellant-Respondent. |
—[*1] Pazer, Epstein & Jaffe, P.C., New York (Matthew J. Fein of counsel), forrespondent-appellant. Callan, Koster, Brady & Brennan LLP, New York (David A LoRe of counsel), forrespondent.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about November 9,2009, which, insofar as appealed from, in this action for personal injuries allegedly sustainedwhen plaintiff tripped and fell while exiting an elevator that had misleveled three inches belowthe floor of the building, granted the motion of defendant building owner Broad Financial Center,LLC (BFC) for summary judgment dismissing the complaint as against it, and for summaryjudgment on its first and second cross claims against defendant Schindler Elevator Corporationfor common-law indemnification, and denied defendant Schindler's motion for summaryjudgment dismissing the complaint and all cross claims as against it, unanimously affirmed,without costs.
BFC made a prima facie showing that it neither created nor had actual or constructive noticeof the misleveling of the subject elevator. Indeed, the record demonstrates that there were noprior complaints as to the defective condition of the elevator (see Gjonaj v Otis El. Co., 38 AD3d 384 [2007]; Santoni v Bertelsmann Prop., Inc., 21AD3d 712 [2005]). In opposition, plaintiff failed to raise a triable issue of fact and thus, thecomplaint was properly dismissed as against BFC.
Plaintiff likewise failed to rebut Schindler's prima facie showing that it too neither creatednor had notice of the misleveling. However, the record presents a viable negligence claim asagainst Schindler under the doctrine of res ipsa loquitur. The alleged misleveling of the elevatorwas not an event that ordinarily occurs in the absence of negligence; deposition testimony and anelevator maintenance agreement established that Schindler had exclusive control over theinspection, maintenance and repair of the subject elevator; and the record is devoid of anyevidence that plaintiff contributed to the misleveling of the elevator (see generallyDermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]; see Dickman vStewart Tenants Corp., 221 AD2d 158 [1995]). Concur—Gonzalez, P.J., Mazzarelli,Richter, Manzanet-Daniels and RomÁn, JJ.