Although Elevator Company Which Agrees to Maintain Elevator May Be Liable to an Injured Passenger, Here the Passenger Was Unable to Raise a Question of Fact About the Company’s Notice of a Potential Problem

The Second Department determined Supreme Court should have granted the elevator company's motion for summary judgment. Plaintiff alleged he was injured when the elevator suddenly stopped between floors but was unable to raise a question fact whether the elevator company had notice of the problem which caused the elevator to stop:

“An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” … . Nouveau established its prima facie entitlement to judgment as a matter of law by showing that it did not have actual or constructive notice of an ongoing condition that would have caused the elevator to abruptly stop, and that it did not fail to use reasonable care to correct a condition of which it should have been aware … .

In opposition, the plaintiff failed to raise a triable issue of fact as to whether a prior problem with the elevator provided notice of the specific defect that allegedly caused the elevator to stop on the date of the subject incident. In addition, the affidavit of the plaintiff's expert was conclusory, lacking in foundation, and speculative … . Further, the plaintiff could not rely on the doctrine of res ipsa loquitur because he failed to demonstrate that the accident was one that would not ordinarily occur in the absence of someone's negligence … . Reed v Nouveau El Indus Inc, 2014 NY Slip Op 09116, 2nd Dept 12-31-14