Wiener v Court St. Invs. LLC

[*1] Wiener v Court St. Invs. LLC 2005 NYSlipOp 50430(U) Decided on March 31, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: March 31, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2004-684 K C

DIANE WIENER, Appellant,

against

COURT STREET INVESTORS LLC, ROSE J. WOHL a/k/a RONNIE WOHL, LARRY A. WOHL, ELINOR W. COHEN, as executors under the Last Will and Testament of Joseph S. Wohl, Deceased and JOSEPH P. DAY REALTY CORP. and MILLAR ELEVATOR INDUSTRIES, INC., Respondents.

Appeal by plaintiff from an order of the Civil Court, Kings County (D. Waltrous, J.), entered February 24, 2004, which granted defendants' motions for summary judgment.

Order unanimously affirmed with $10 costs.

Plaintiff commenced this action to recover damages for injuries she allegedly sustained when she fell after struggling to free her foot from an elevator door which she
claims closed upon it. After depositions were held, defendants moved for summary judgment dismissing the complaint. Defendants made a prima facie showing of their entitlement to summary judgment by establishing that they exercised reasonable care and that they lacked notice of any alleged defect with respect to the elevator door in question (see Rogers v Dorchester Assoc., 32 NY2d 553 [1973]; Chiesa v Citibank, N.A., 2001 NY Slip Op 40647[U] [App Term, 2d & 11th Jud Dists]). In opposition thereto, plaintiff submitted an affirmation by her attorney which asserted that the doctrine of res ipsa loquitur could be used to establish defendants' negligence. However, inasmuch as plaintiff failed to establish that she was not negligent and that the elevator was within defendants' exclusive control, the doctrine of res ipsa loquitur was inapplicable (see Feblot v New York Times Co., 32 NY2d 486 [1973]; Graham v Wohl, 283 [*2]AD2d 261 [2001]; LoTruglio v Saks Fifth Ave., 281 AD2d 399 [2001]; [*3]
Cacciolo v Port Auth. of N. Y. & N. J., 186 AD2d 528 [1992]; Chiesa, 2001 NY Slip Op 40647[U]). As a result, the court properly awarded defendants summary judgment dismissing the complaint.
Decision Date: March 31, 2005