Recitation, as required by CPLR §§2219(a) and/or 3212(b) of the Papers considered on review of this Motion: NYSCEF Doc#s 26-45 by D Schindler El NYSCEF Doc #s 55-61 Plaintiff’s Oppo’n DECISION/ORDER Upon the foregoing cited papers and arguments on January 18, 2023, pursuant to CPLR §3212, the Decision and Order on Defendant Schindler Elevator Corporation’s (“Schindler”) Motion for Summary Judgment is as follows: Defendant’s motion is GRANTED. Plaintiff claims that Defendant Schindler’s failure to supervise, operate, inspect, maintain and/or repair an elevator resulted in its door closing on Plaintiff’s left side before she fully entered the elevator, resulting in the alleged injuries. Defendant Schindler claims that there are no triable issues of fact and summary judgment is warranted since Plaintiff previously used the elevator without any problems. Defendant Schindler further noted that Plaintiff claimed that she heard of a prior unspecified incident involving the elevator (NYSCEF Doc. #s 34, 37) but there was no evidence that Plaintiff or anyone else had reported such incident to Defendant Schindler prior to Plaintiff’s accident (NYSCEF Docs. # 34, 36). Defendant also provided proof that it had inspected and serviced the elevator regularly before the accident (NYSCEF Doc. #s 36, 38, 41), that the elevator had stayed in-service that day and afterwards (NYSCEF Doc. # 34), that Plaintiff’s accident had not been reported to Defendant Schindler at the time or shortly thereafter, and it had not been requested to perform any repairs as a result of the alleged defect. An elevator company which agrees to maintain an elevator in safe operating condition may be liable to passenger for failure to correct defects of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found. Rogers v. Dorchester Assoc., 32 N.Y.2d 533; see Lanzillo v. 4 World Trade Ctr., 195 A.D.3d 907, 908 (2nd Dep’t 2021). If an elevator company is seeking summary judgment it must submit sufficient evidence it lacked actual or constructive notice of the defect and that it did not fail to use reasonable care to correct any such condition. Plaintiff reliance on Cox v. Pepe-Fareri One, 47 A.D.3d 749 (2nd Dep’t 2008) in support of its argument that Defendant is not entitled to summary judgment is misplaced. In Cox, the plaintiff was allegedly injured when an elevator door closed on her. See id. at 749. The Appellate Division affirmed the lower court’s denial of summary judgment for the defendant because the evidence provided failed to establish that defendant had maintained the elevator in a safe operating condition and had no actual or constructive notice of a defective condition. See id.; see also Sanchez v. City of New York., 211 A.D.3d 1065, 1066 (2nd Dep’t 2022) (freight-elevator passenger was struck in head without warning by the downward movement of the door, neither elevator company awarded summary judgment where maintenance records were “vague and unspecific”); Nye v. Putnam Nursing & Rehab. Ctr., 62 A.D.3d 767, 768 (2nd Dep’t 2009) (elevator door allegedly closed on the passenger’s hand and defendant failed to support summary judgment its motion with evidence that it did not create defective condition or have notice of it because its employee’s deposition conflicted with corrections in his errata sheet, creating an issue of fact in the case). The facts in the above-cited cases are distinguishable from the instant matter. Here, Defendant inspected and serviced the elevator regularly before the accident, the alleged defect had not been reported to Defendant prior to the accident,1 the elevator continued in use after the accident without incident, the elevator was not removed from service after the accident, the accident was not reported to Defendant at the time of the accident or shortly thereafter, and no repairs were needed for the alleged defect. The evidence submitted by Defendant established it did not create the alleged defective condition of the elevator door nor had notice of said alleged defect. See, e.g., Lanzillo v. 4 World Trade Ctr., 195 A.D.3d 907, 908 (2nd Dep’t 2021)2 (no liability for elevator maintenance company where it submitted sufficient evidence that it lacked actual or constructive notice of a defective condition that would have caused the doors to close on her when she entered elevator, no evidence of any such prior malfunction nor that it failed to use reasonable care to correct a condition of which it should have been aware); Yousefi v. Rudeth Realty, LLC, 61 A.D.3d 677, 678 (2nd Dep’t 2009). The Court is aware that summary judgment is a drastic remedy that can deprive a litigant of his or her day in court. See Kolivas v. Kirchoff, 14 A.D.3d 493 (2nd Dep’t 2005). The Court also recognizes that in deciding such a motion, it must construe the evidence in the light most favorable to the opposing party. See Benincasa v. Garrubbo, 141 A.D.2d 636 (2nd Dep’t 1988). But that does not mean that the relief sought by the movant for summary judgment is always unavailing. A party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law and must affirmatively demonstrate the merit of its claim or defense. See Nunez v. Chase Manhattan Bank, 16 A.D.3d 637 (2nd Dep’t 2005). In the instant case, Defendant has done this. While the Court acknowledges Plaintiff’s argument that evidence of the absence of prior accidents is but one factor to be considered (see Noskewicz v. City of New York, 155 A.D.2d 646 [2nd Dep't 1989]) and the assertion that a number of people safely used the elevator on the same day as Plaintiff is just another factor (see Brunoz v. Port Authority of New York, 157 A.D.3d 444 [1st Dep't 2018]), the factors have accumulated here to a threshold sufficient to warrant summary judgment when combined with Defendant’s production of evidence to show lack of notice, and its performance of regular inspections and maintenance and records supporting such inspections and maintenance. In addition, to the extent that Defendant’s motion for summary judgment preemptively raised the issue of res ipsa loquitor to preclude any argument by Plaintiff that she was entitled to summary judgment, this Court does not find that Plaintiff has shown that the instrumentality that controls the elevator door closure was within Defendant’s exclusive control. See Cox, 47 A.D.3d at 750; see also Lanzillo, 195 A.D.3d at 909; Yousefi, 61 A.D.3d at 678 (evidence of alleged defective condition of store exit door did not warrant application of res ipsa loquitor against defendants and in any event, it was too late in the case to apply the doctrine against defendants). This constitutes the Decision and Order of the Court. Date: March 29, 2023
