Plaintiff appeals from an order of Civil Court, New York County entered September 11, 2003 (Jose A. Padilla, Jr., J.), which granted defendants' motion for summary judgment dismissing the complaint, and from an order of the same court and Judge entered December 24, 2003, which denied plaintiff's motion for leave to renew and reargue the aforesaid order.

PER CURIAM:

Order entered December 24, 2003 (Jose A. Padilla, Jr., J.) reversed, with $10 costs, plaintiff's motion granted to the extent it sought renewal, and upon renewal, summary judgment denied and the complaint reinstated. Appeal from order entered September 11, 2003 (Jose A. Padilla, Jr., J.) dismissed, without costs, as superceded by the appeal from the renewal motion.

This action seeks damages for injuries sustained by plaintiff when the vertically closing doors of a freight elevator serviced by defendants suddenly closed on her head. On defendants' motion for summary judgment, the parties submitted affidavits from their experts offering conflicting views as to whether certain provisions of safety code regulations ("ASMI/ANSI" of the National Elevator Safety Code) were in effect at the time of the accident and whether there were any code violations which proximately caused the accident. The motion court's initial decision erroneously stated that plaintiff's expert did not personally examine the elevator and that the particular sections of the safety code cited by plaintiff were not in effect at the time of the accident. The plaintiff's motion for renewal/reargument, which would have clarified these points, was summarily denied.

The law is well settled that "(a)n elevator company which agrees to maintain an elevator in safe operating condition may be liable . . . for failure to correct conditions of which it [*2]has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found" (Rogers v Dorchester Assocs., 32 NY2d 553, 559 [1973]). It is also well settled that a violation of ASME/ANSI safety standards constitutes some evidence of negligence (see Love v New York City Hous. Auth., 251 AD2d 553, 554 [1998]). The record before us, which contains evidence tending to indicate that the elevator doors previously malfunctioned, does not conclusively establish that defendants were free from negligence in the maintenance or repair of the elevator (see Fanelli v Otis El. Co., 278 AD2d 362 [2000]). Among the triable issues raised by the parties' conflicting expert affidavits are whether defendants knew or should have known of any elevator defect(s) that may have existed and whether any safety code violation(s) proximately caused the elevator to malfunction. Summary judgment dismissal of the action was unwarranted.

This constitutes the decision and order of the Court.
Decision Date: October 21, 2005