Elder v New York El. Co., Inc.

[*1] Elder v New York El. Co., Inc. 2004 NY Slip Op 51245(U) Decided on October 20, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
2003-1456 K C

GORDON ELDER, Respondent,

against

NEW YORK ELEVATOR CO., INC., Appellant, -and- SEALANTIC FUND INC., Defendant.

Appeal by defendant New York Elevator Co., Inc. from an order of the Civil Court, Kings County (A. Shack, J.), dated August 11, 2003, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Order unanimously affirmed with $10 costs.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case . . . . Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers . . ." (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). In the instant case, in support of its motion for summary judgment, defendant New York Elevator Co., Inc. (NYE) relies, in part, upon deposition testimony given by Frank Pugliese, one of its field supervisors. Pugliese testified that [*2]movement of the gate which fell and struck plaintiff was governed by the elevator's controller. Pugliese's testimony that the controller was installed by another company about one or two months prior to the accident, that there had been numerous problems with the controller after it was installed, that the building repeatedly called the other company to fix the controller and that the other company had attempted to do so, was not based on personal knowledge of these facts. As a result, they did not constitute evidence in admissible form. Consequently, NYE's motion for summary judgment was properly denied without regard to whether plaintiff demonstrated the existence of a material issue of fact (see Winegrad, 64 NY2d at 853).

In any event, even if NYE had tendered the same evidence in admissible form, viewing said evidence in the light most favorable to plaintiff, the non-moving party (see Corvino v Mount Pleasant Cent. School Dist., 305 AD2d 364 [2003]; Torres v Jeremias,
283 AD2d 484 [2001]), NYE's motion would still fail to establish its entitlement to summary judgment because there is an issue of fact as to whether NYE had become responsible, pursuant to the elevator maintenance agreement between NYE and the building's management company, for repairs on the subject elevator which were attributable to the elevator's controller. In addition, also unresolved is whether the safety device at the bottom of the gate worked properly and, if not, whether NYE was responsible for its maintenance.
Decision Date: October 20, 2004