Galante v. New York City Housing Authority , 146 A.D.3d 640 ( 2017 )

Galante v New York City Hous. Auth. (2017 NY Slip Op 00430)

Galante v New York City Hous. Auth.

2017 NY Slip Op 00430

Decided on January 24, 2017

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 January 24, 2017
Sweeny, J.P., Renwick, Andrias, Kahn, Gesmer, JJ.

2835 15645/06

[*1]Anthony Galante, et al., Plaintiffs-Respondents,

v

New York City Housing Authority, Defendant-Appellant.

Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for appellant.

Coiro, Wardi, Chinitz & Silverstein, Bronx (Joseph T. Coiro of counsel), for respondents.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 16, 2015, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly concluded that the doctrine of res ipsa loquitur precludes the award of summary judgment in defendant's favor in this action where plaintiff was injured when the elevator in which he was riding came to a sudden and abrupt stop. Elevator malfunctions ordinarily do not occur in the absence of negligence (see e.g. Ezzard v One E. Riv. Place Realty Co., LLC, 129 AD3d 159, 163 [1st Dept 2015]), and defendant has failed to demonstrate as a matter of law that it lacked exclusive control over the subject elevator at the time of the accident. Defendant's argument that vandalism was the cause of the elevator's malfunction, lacks support in the record, and there is no evidence that plaintiff's actions played a role in the cause of the accident.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2017

CLERK