Opinion
10276 Index 21591/15E 43100/17E
11-07-2019
Elizabeth CHAMBERS, Plaintiff–Appellant, v. TILDEN TOWERS HOUSING CO. Section II, Inc., et al., Defendants–Respondents, Tilden Towers II, et al., Defendants. [And A Third–Party Action]
Burns & Harris, New York (Jason Steinberg of counsel), for appellant. Morris, Duffy, Alonso & Faley, New York (Iryna S. Krauchanka and Kevin G. Faley of counsel), for Tilden Towers Housing Co. Section II, Inc., Tudor Realty Services Corp. and Tony Rookard, respondents. Gottlieb Siegel & Schwartz, LLP, New York (Laura R. McKenzie of counsel), for Eli–Tech Industries, Inc., respondent.
Burns & Harris, New York (Jason Steinberg of counsel), for appellant.
Morris, Duffy, Alonso & Faley, New York (Iryna S. Krauchanka and Kevin G. Faley of counsel), for Tilden Towers Housing Co. Section II, Inc., Tudor Realty Services Corp. and Tony Rookard, respondents.
Gottlieb Siegel & Schwartz, LLP, New York (Laura R. McKenzie of counsel), for Eli–Tech Industries, Inc., respondent.
Richter, J.P., Webber, Gesmer, Oing, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 31, 2018, which granted the motion of defendants Tilden Towers Housing Co. Section II, Inc., Tudor Realty Services Corp., and Tony Rookard (collectively owner defendants) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Owner defendants established their prima facie entitlement to judgment in this action for personal injuries plaintiff allegedly sustained when an elevator in the building in which she lived suddenly dropped five floors. Owner defendants showed that they had no notice of a problem with elevators in the building suddenly dropping (see Meza v. 509 Owners LLC, 82 A.D.3d 426, 427, 918 N.Y.S.2d 78 [1st Dept. 2011] ).
In opposition, plaintiff failed to raise a triable issue of fact. Her reliance on the doctrine of res ipsa loquitur to impute notice to owner defendants is misplaced. Exclusive control of the instrumentality bringing about the injury, which is necessary for the doctrine to apply, is absent where, as here, an owner has ceded all responsibility for maintenance and repair to its elevator service contractor (see Hodges v. Royal Realty Corp., 42 A.D.3d 350, 351–352, 839 N.Y.S.2d 499 [1st Dept. 2007] ).
Furthermore, defendant Rookard was additionally entitled to summary judgment dismissing the complaint as against him where plaintiff does not contest that he acted solely in his capacity as defendant Tudor's representative (see Mendez v. City of New York, 259 A.D.2d 441, 441–442, 687 N.Y.S.2d 346 [1st Dept. 1999] ).