NEW YORK (Legal Newsline) - A New York appellate court granted the motions of a property owner, management company and consultant to dismiss a complaint, and all cross claims against them, stemming from an alleged elevator injury at a Fifth Avenue property in 2012.
In its Dec. 8 ruling, the Supreme Court's Appellate Division, First Judicial Department reversed a 2019 decision by the Bronx Supreme Court that the defendants were “collectively in control” of the elevator where the injury allegedly occurred and that John A. Van Deusen & Associates (VDA), the consultant, “had the authority to remove the elevator from service if it was unsafe and, under the principle of res ipsa loquitur, could be held liable.”
In the case, plaintiff Sylvia Sanchez alleged that on Oct. 5, 2012, the inner gate of a service elevator at 1067 Fifth Avenue closed on her right shoulder as she was getting ready to exit. The elevator then descended to the first floor with her shoulder still trapped in the door.
The building superintendent testified in Supreme Court that he had received no other complaints about the elevator. A mechanic with VDA, with whom American Elevator & Machine Corp. had contracted for modernization of the building’s elevators, testified that he had inspected the elevator prior to the date the alleged injury occurred, and made certain that the elevator did not move with the gate open.
In its opinion, the appellate court said that the plaintiff herself testified that “she had never seen the elevator move before the inner gate was shut.”
“Nevertheless,” the court said, “plaintiff could still establish an issue of fact on the issue of defendants' negligence under a theory of res ipsa loquitur.”
But, the court continued, that one of the requirements under res ipsa loquitur, “that the accident be caused by an agency or instrumentality within the exclusive control of the defendant, has not been met as to 1067 Fifth and Elliman [Elliman Property Management], since they had ceded all maintenance and repair responsibility to American.”
In addition, the court granted VDA’s motion to dismiss since the consultant had contracted with American for modernization not general maintenance.