Plaintiff moves for partial summary judgment in this personal injury action arising from an elevator accident which occurred on August 22, 2003, at approximately 6:00 p.m. at 950 East 4 Walk, New York, New York. On entering the elevator, plaintiff pushed the button for the 12th floor and the metal cab door did not close completely behind her. The door left approximately three inches of space between the door and the elevator wall. Then the elevator's motor started to rumble and the elevator began to bounce up and down. The door then opened quickly and plaintiff attempted to leave, but the door closed on her right hand. Plaintiff's right hand was caught in between the door and the elevator wall for ten minutes, at which time the door opened on its own.

Plaintiff commenced this action on November 19, 2004. By order dated May 23, 2007, the court (Feinman, J.) dismissed the complaint and cross claims against defendant City of New York and continued the action against the remaining defendants. Plaintiff now seeks summary judgment on the issue of liability against defendants New York City Housing Authority ("NYCHA") and Alliance Elevator Company ("Alliance"), contending that: 1) there is no conflict in the evidence; 2) defendants' conduct falls below reasonable care; and 3) plaintiff's conduct is not causally involved.

NYCHA owns the building in which the subject elevator is located. In 2003, NYCHA contracted with Alliance to renovate the elevator. Part of the contract required Alliance to maintain the elevator both before the renovation commenced and after the renovation was [*2]completed. Plaintiff submits a copy of deposition testimony from David Martinez, an assistant superintendent employed by NYCHA, who testified as to the relationship between NYCHA and Alliance. Plaintiff also submits deposition testimony from Joseph Marrero, a supervisor at Alliance. Mr. Marrero testified that on the morning of the accident and prior thereto, Kirk Cottrell, a mechanic employed by Alliance, performed preventative maintenance on the subject elevator, which included cleaning and oiling the elevator pit at the bottom of the elevator shaft and cleaning the elevator car top. Mr. Cottrell also performed a visual check of the elevator's cam rollers, which are wheels that control the operation of the elevator's cab door.

On August 25, 2003, three days after the accident, Mr. Marrero and Mr. Cottrell went to the site and inspected the elevator. At that time, they discovered that a retiring cam cable was broken, a stopping roller was broken and a pick-up roller was worn. Plaintiff argues that Mr. Cottrell, in his inspection performed on the day of the accident, failed to notice the worn out cam roller. Subsequently, an inspector from the New York City Department of Buildings ("DOB") issued a violation for the damaged cable and worn roller.

Based on the testimony and the affidavit from an elevator engineer, Elmer Stiffler, who inspected the elevator on March 1, 2004, plaintiff argues that the motion must be granted. According to plaintiff, NYCHA's liability is predicated upon its violation of the New York Multiple Dwelling Law ("MDL"), which applies to multiple dwellings, and Title 27 of the New York City Administrative Code, entitled the "Building Code," which applies to all buildings in New York City. Alliance's liability is allegedly based on failure to properly maintain, specifically a failure to observe and replace the broken cam cable, the broken stopping roller and the worn pick-up roller prior to the accident. Plaintiff states that Alliance's liability for the elevator malfunction is also based on the theory of res ipsa loquitur.

NYCHA and Alliance oppose the motion, arguing that issues of fact exist. This was an unwitnessed accident and plaintiff allegedly stands to gain the most by a favorable decision. They state that plaintiff is a convicted cocaine dealer who is seeking over five million dollars in lost wages and future medical treatment. They argue that their expert witness disputes the significance and causative effects of the findings cited in plaintiff's supporting documents. They also assert that plaintiff cannot rely upon the res ipsa loquitur doctrine because it is inapplicable to elevator door strike cases such as the instant matter.

The defendants cite Cacciolo v Port Auth. of New York & New Jersey, 186 AD2d 528 (2d Dept 1992), where the court, on a similar fact pattern, held that the necessary exclusivity of control over the operation of the elevator doors by defendants was missing under the particular facts therein. Defendants contend that plaintiff, in this action, cannot show that the instrumentality that controls the door closure was within Alliance's exclusive control.

Defendants' expert witness, Bernard Hughes, contends that the damage to the door operating mechanism was caused by vandalism and not by Alliance's allegedly inadequate maintenance services. Mr. Hughes claims that the worn roller was not itself a danger, did not affect door function, and was not related to the breakage of other door components.

In reply, plaintiff argues that referring to her criminal record is an irrelevant way of attacking her credibility. Specifically, the incident involving the criminal activity occurred when plaintiff was twenty years old, resulting in a sentence of five years' probation which expired five years ago. [*3]

Plaintiff contends that the case law defendants cite with respect to res ipsa loquitur does not preclude application of that doctrine to elevator door strike accidents. Specifically, she asserts that: 1) there is an inference of negligence; 2) Alliance had exclusive control of the instrumentality; and 3) there was no causation by plaintiff's voluntary actions.

As for the cause of the accident, plaintiff avers that there is sufficient proof that the failure to maintain the elevator and to properly inspect and replace defective parts contributed to the elevator malfunctioning. The conclusions Mr. Hughes makes are purportedly inaccurate and speculative. Plaintiff states that Mr. Stiffler, unlike Mr. Hughes, inspected the elevator, which enabled him to reach his conclusions.^[FN1]

An award of summary judgment is appropriate when no issues of fact exist. See CPLR 3212(b); Sun Yau Ko v. Lincoln Sav. Bank, 99 AD2d 943 (1st Dept.), aff'd 62 NY2d 938 (1984); Andre v. Pomeroy, 35 NY2d 361 (1974). In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Indeed, the moving party has the burden to present evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 790 (1979).

While the moving party has the initial burden of proving entitlement to summary judgment (Winegrad v. NY Univ. Med. Ctr., supra), once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Freedman v. Chemical Const. Corp., 43 NY2d 260 (1977); Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., supra.

Plaintiff argues that defendants are liable for negligence and are also liable under the res ipsa loquitur doctrine. In order to be entitled to a res ipsa loquitur instruction, plaintiff must establish that: 1) this type of accident ordinarily does not occur in the absence of negligence; 2) the instrumentality causing the accident was in defendant's exclusive control; and 3) the accident was not due to any voluntary action or contribution by plaintiff. Rountree v Manhattan & Bronx Surface Transit Operating Auth., 261 AD2d 324, 326 (1st Dept), lv. den. 94 NY2d 754 (1999). Res ipsa loquitur creates a permissible inference of negligence and causation from an occurrence which does not ordinarily happen without negligence. Nesbit v New York City Transit Auth., 170 AD2d 92, 96-97 (1st Dept 1991).

The evidence plaintiff proffers affords a reasonable basis for concluding that it was more likely than not that the accident resulted from Alliance's negligence. However, defendants' claim that vandalism might have occurred raises an issue of fact as to whether or not defendants had exclusive control over the instrumentality. Thus, the inference of negligence under the res ipsa [*4]loquitur doctrine is open to question and plaintiff has not established entitlement to summary judgment on this point.

Similarly, an issue of fact exists with regard to plaintiff's common law negligence claim. In this regard, plaintiff and defendants submit conflicting expert affidavits. Plaintiff's expert concludes that the subject elevator was not properly maintained, while defendant's expert concludes that the type of damage to the elevator's door closing mechanism is consistent with vandalism rather than improper maintenance and could have been caused at the time plaintiff was removed from the elevator doors. With regard to plaintiff's claim that defendants' expert, unlike plaintiff's, never inspected the subject elevator, in this case the distinction is of no import. Both experts relied upon their review of the parties' deposition testimony and other documentation exchanged during discovery. Plaintiff's expert inspected the elevator on March 1, 2004, approximately six (6) months after the accident and his affidavit is silent as to what he observed during his inspection and how any such observations impacted his subsequent conclusions.

Finally, plaintiff's motion refers to NYCHA's alleged violation of MDL §78. As a rule, a violation of a state statute that imposes a specific duty constitutes negligence per se. See Elliott v City of New York, 95 NY2d 730, 734 (2001). While defendants have not disputed or discussed this part of the motion, nonetheless, MDL §78 does not impose any specific duty on NYCHA. Rather, the statute refers to a general duty to keep the premises in a safe condition. As such, plaintiff does not establish negligence per se as against NYCHA. For all of the foregoing reasons, it is

ORDERED that plaintiff's motion for partial summary judgment is denied.

The foregoing constitutes this court's decision and order.

Dated: February 8, 2010

Martin Shulman, J.S.C.