Sanchez v. New Scandic Wall Ltd. Partnership , 145 A.D.3d 643 ( 2016 )

Sanchez v New Scandic Wall Ltd. Partnership (2016 NY Slip Op 08962)

Sanchez v New Scandic Wall Ltd. Partnership

2016 NY Slip Op 08962

Decided on December 29, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 29, 2016
Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels, Feinman, JJ.

2584 300374/09 83940/09

[*1]Dilenia Sanchez, Plaintiff-Appellant,

v

New Scandic Wall Limited Partnership, et al., Defendants/Third-Party Plaintiffs-Respondents, Schindler Elevator Corp., Third-Party Defendant-Respondent.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for New Scandic Wall Limited Partnership and 40 Wall Limited Partnership, respondents.

McMahon, Martine & Gallagher, LLP, Brooklyn (Kristina M. Scotto of counsel), for Schindler Elevator Corp., respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 8, 2015, which, inter alia, granted third-party defendant's motion and defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants and third-party defendant demonstrated their prima facie entitlement to summary judgment by presenting evidence showing that the elevators were regularly inspected, and the door of the subject elevator was operating properly before and after plaintiff was struck in the shoulder by the closing door, while attempting to enter it. Moreover, even if a defect existed, they demonstrated that they did not create or have actual or constructive notice of it (see Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 713 [1st Dept 2005]; Lasser v Northrop Grumman Corp., 55 AD3d 561, 562 [2d Dept 2008]). The doctrine of res ipsa loquitur is inapplicable in this case, as defendant had ceded all maintenance and repair to third-party defendant Schindler Elevator Corp. (see Ebanks v New York City Tr. Auth.,70 NY2d 621, 623 [1987]; Fasano v Euclid Hall Assoc., L.P., 136 AD3d 478, 479 [1st Dept 2016]; Hodges v Royal Realty Corp., 42 AD3d 350 [1st Dept 2007]). Moreover, plaintiff admits that she was not aware of the door closing until it hit her (see Graham, 283 AD2d 261), and she offers no expert affidavit or other evidence of any malfunction in the door, which would cause it to close [*2]unusually quickly. She also admits that the elevator door opened immediately after it hit her, and, as noted above, that the elevator operated properly before and after the incident (see Lasser, 55 AD3d at 562).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 29, 2016

CLERK