Meza v 509 Owners LLC

Meza v 509 Owners LLC 2011 NY Slip Op 01576 Decided on March 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2011
Saxe, J.P., Sweeny, Catterson, Freedman, Román, JJ.
4397 111212/07

[*1]Doris Meza, Plaintiff-Appellant,

v

509 Owners LLC, et al., Defendants-Respondents.




Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac
of counsel), for appellant.
Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Joel M. Simon of counsel), for 509 Owners LLC
and Emmes Realty Services, LLC, respondents.
Raven & Kolbe, LLP, New York (George S. Kolbe of
counsel), for Nouveau respondents.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 28, 2010, which, in an action for personal injuries allegedly sustained when plaintiff tripped and fell while exiting an elevator, granted the motion of defendants Nouveau Elevator Industries, Inc. and Donald Speranza, Sr. and the cross motion of 509 Owners LLC and Emmes Realty Services, LLC for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

Defendants building owners and elevator service contractors
established their prima facie entitlement to judgment as a matter of law. Defendants submitted evidence demonstrating that they did not have notice of any defective condition of the subject elevator and that the elevator was regularly inspected and maintained (see Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 713-714 [2005]).

In opposition, plaintiff failed to produce evidence of a prior problem with the elevator that would have provided notice of the specific defect alleged. Although there had been a misleveling problem with the elevator almost three weeks before plaintiff's accident, the evidence established that the condition had been resolved and that a different condition with the elevator was observed the day after the accident (see Gjonaj v Otis El. Co., 38 AD3d 384, 385 [2007]). Furthermore, plaintiff's reliance on the doctrine of res ipsa loquitur is misplaced under the circumstances. "[P]laintiff's fall could have occurred in the absence of negligence and could have been caused by a misstep
on [her] part" (Cortes v Central El., Inc., 45 AD3d 323, 324 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2011

CLERK