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Maxwell v A & Z Realty
2015 NY Slip Op 50602(U) [47 Misc 3d 140(A)]
Decided on April 16, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2011-1828 K C

Ruby Maxwell, Appellant,

against

A & Z Realty, a Partnership, and BROOKLYN QUEENS ELEVATOR CORP., Respondents.


Appeal from a judgment of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered October 23, 2009. The judgment, upon a jury verdict, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action, plaintiff seeks to recover for injuries sustained as a result of defendants' alleged negligence in the ownership and maintenance, respectively, of an elevator in her apartment building. At a jury trial, plaintiff testified that her apartment is on the fourth floor and that, on about three dozen occasions prior to the incident at issue, the elevator would either not go up from the first floor, or would stop and its doors would open between floors. On February 19, 1997, when she returned to her building, plaintiff entered the elevator to take it to the fourth floor. The elevator went up and down several times, each time passing her floor. She began pushing the alarm button until the elevator stopped and the doors opened. She did not look to see if the elevator was level with the floor. She exited the elevator and tripped, as the elevator was three feet above the floor level, thereby suffering injuries.

The jury found that defendants had no notice of the defect in the elevator, and judgment was subsequently entered dismissing the complaint.


Contrary to plaintiff's contention, the jury's determination that defendants lacked notice of the defective condition was based upon a fair interpretation of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978]; Nicastro v Park, 113 AD2d 129, 134 [1985]). Plaintiff testified that the elevator had been working properly earlier in the evening when she had left the building, and defendants' expert witnesses testified that the defect in the elevator could not be discovered ahead of time. In addition, plaintiff's expert testified that the failure of the elevator to function properly was unforeseeable.

With respect to plaintiff's remaining contentions, including her claim that it was error for the court to exclude certain evidence and to not poll the jury after the verdict, we find that these contentions are either unpreserved for appellate review or without merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.


Decision Date: April 16, 2015