Opinion
2001-02458
Argued June 17, 2002.
September 18, 2002.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hall, J.), dated January 29, 2001, as granted the motion of the defendant Elo Group, Inc., inter alia, for summary judgment dismissing the complaint insofar as asserted against it.
Gary B. Pillersdorf Associates, P.C. (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellants.
Bruce A. Lawrence, Brooklyn, N.Y. (Corwin Del Toro of counsel), for defendant third-party plaintiff-respondent.
A. Joseph Giannini, New York, N.Y., for third-party defendant-respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion and the cross motion are denied, and the complaint insofar as asserted against the defendant Elo Group, Inc., and the third-party complaint are reinstated.
On August 26, 1996, the plaintiff Myriam Fuchs allegedly sustained injuries while attempting to climb out of an elevator that was stuck between floors in a building owned by the defendant Elo Group, Inc. (hereinafter Elo Group). Pursuant to a contractual agreement between Elo Group and the third-party defendant, Flynn-Hill Elevator Corp. (hereinafter Flynn-Hill), that was in existence at the time of the accident, Flynn-Hill was responsible for elevator maintenance and repair services at the subject building. Elo Group moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, and Flynn-Hill cross-moved, inter alia, for summary judgment dismissing the third-party complaint. The Supreme Court granted the motion and cross motion.
A building owner has a nondelegable duty to maintain and repair the elevators on its premises (see Rogers v. Dorchester Assocs., 32 N.Y.2d 553; O'Neill v. Mildac Props., 162 A.D.2d 441). In the case at bar, issues of fact exist as to whether the subject elevator was improperly serviced or maintained. Accordingly, the Supreme Court erred in granting the motion and cross motion.
The respondent's remaining contentions are without merit.
FLORIO, J.P., S. MILLER, TOWNES and COZIER, JJ., concur.