Martinez v Otis El. Co.

[*1] Martinez v Otis El. Co. 2013 NY Slip Op 51728(U) Decided on October 8, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3229 K C.

William Martinez, Respondent,

against

Otis Elevator Company, Appellant. OTIS ELEVATOR COMPANY, Third-Party Plaintiff, WYCKOFF HEIGHTS MEDICAL CENTER, Third-Party Defendant. WYCKOFF HEIGHTS MEDICAL CENTER, Second Third-Party Plaintiff, UNITEX TEXTILE RENTAL SERVICES, Second Third-Party Defendant.

Appeal from an order of Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered June 8, 2010. The order denied a motion by defendant Otis Elevator Company for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff was a worker in the environmental services division of Wyckoff Heights Medical Center (Wyckoff). His responsibilities included going from floor to floor and picking up the dirty linens from patients' beds, putting them into a large cart, and then transporting that cart to the basement. On September 12, 2005, plaintiff was performing his normal duties, transporting dirty linens to be cleaned. After clearing the linens from one floor, plaintiff entered into elevator number 12, part of a bank of elevators used only or mostly by hospital personnel. While exiting the elevator, plaintiff positioned himself so that he would exit the elevator and then pull the cart out after him. As he tried to exit the elevator, the first wheel of the cart turned and became stuck in the crevice between the elevator and the floor. Plaintiff attempted to lift the cart and dislodge the wheel. To do so, he placed his right hand on the middle of the cart, along the right side, and his left hand on the bottom of the cart, and tried to pull the cart up and out of the [*2]elevator. As he was struggling to get the wheel free, the elevator doors closed, trapping his right hand between the side of the cart and the right elevator doors. Plaintiff commenced this action against Otis Elevator Company (defendant) to recover for his injuries. Defendant moved for summary judgment dismissing the complaint, which motion the Civil Court denied. Defendant appeals.

"An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found" (Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]). A trial is necessary to determine, among other things, whether defendant had sufficient notice to impose liability upon it. Defendant did not establish that it had no notice of possible problems with the elevator prior to the accident (compare Santoni v Bertelsmann Prop., Inc., 21 AD3d 712 [2005]). Instead, there is evidence both of complaints about the doors on that elevator closing improperly (see Gjonaj v Otis El. Co., 38 AD3d 384 [2007]), and that an Otis technician was called in to check elevator 12 for such door- closing problems not long before the accident in question. Furthermore, there is a disagreement between the experts of both sides which cannot be properly determined without a trial (see De Sanctis v Montgomery El. Co., 304 AD2d 936 [2003]).

Because there are triable issues of fact, we find that defendant's motion for summary judgment was properly denied. In light of our determination, we reach no other issue.

Accordingly, the order is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 08, 2013