Opinion
6472 Index 113800/10
05-08-2018
Anthony LILLY, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants, New York City Housing Authority, Defendant–Respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for respondent.
Sweeny, J.P., Renwick, Mazzarelli, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered January 27, 2016, which granted the motion of defendant New York City Housing Authority for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.
Summary judgment was improperly granted in this action where plaintiff was injured when the elevator door in defendant's building unexpectedly closed on him as he attempted to enter the elevator. Contrary to the finding of the motion court, the evidentiary doctrine of res ipsa loquitur is applicable under the circumstances presented since plaintiff testified that the elevator door, which was closed by electronic sensors and did not have rubber safety bumpers, suddenly and unexpectedly closed (see Barkley v. Plaza Realty Invs. Inc. , 149 A.D.3d 74, 77–78, 49 N.Y.S.3d 105 [1st Dept. 2017] ; Ianotta v. Tishman Speyer Props., Inc. , 46 A.D.3d 297, 298–299, 852 N.Y.S.2d 27 [1st Dept. 2007] ; compare Feblot v. New York Times Co. , 32 N.Y.2d 486, 496, 346 N.Y.S.2d 256, 299 N.E.2d 672 [1973] ).
In addition, plaintiff testified that the elevator door was malfunctioning for several months and proferred an affidavit by a tenant who averred to the elevator doors malfunctioning. This is sufficient evidence of constructive notice to defeat defendant's showing that the elevator was regularly maintained (see Ardolaj v. Two Broadway Land Co. , 276 A.D.2d 264, 714 N.Y.S.2d 12 [1st Dept. 2000] ).