You are here: / / ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE...
,

ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION.

The Second Department determined the company (Mainco) under contract with the Bronx Center (a nursing home) to maintain an elevator could be liable to plaintiff, who was injured when the elevator fell. The court explained the analytical criteria for liability in tort to third parties stemming from a contract:

Mainco failed to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the ground that it did not have a duty to the plaintiff. ” 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'” … . Further, “a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons . . . where the contracting party has entirely displaced the other party’s duty” of safe maintenance … .

Here, the maintenance agreement between Mainco and Bronx Center required Mainco to periodically “inspect” the elevator and to “perform the New York City Local Law #10 mandated annual inspection.” The evidence demonstrated that, if there were any problems with the elevator, Bronx Center called Mainco, and Mainco inspected the elevator to determine and report on the cause of the problem. The evidence further indicated that if the cause of the problem was not a repair covered by the maintenance contract, Mainco issued a repair proposal, and would perform the repair upon acceptance of its proposal. Under these circumstances, Mainco failed to demonstrate as a matter of law that it did not assume a duty to the plaintiff and that the plaintiff’s claims did not fall within the scope of that duty. Fajardo v Mainco El. & Elec. Corp., 2016 NY Slip Op 06678, 2nd Dept 10-12-16

 

NEGLIGENCE (ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION)/CONTRACT LAW (TORT LIABILITY STEMMING FROM CONTRACT, ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION)/TORT LIABILITY STEMMING FROM CONTRACT ELEVATOR MAINTENANCE COMPANY UNDER CONTRACT WITH NURSING HOME MAY BE LIABLE IN TORT TO THIRD PARTY INJURED BY ELEVATOR MALFUNCTION)

You might also like
PLAINTIFF DID NOT SHOW DUE DILIGENCE IN ASCERTAINING THE NAME OF THE PARTY REFERRED TO AS “JOHN DOE” IN THE COMPLIANT RENDERING THE ACTION TIME-BARRED; ALTHOUGH THE COURT PROPERLY DEEMED PROOF OF SERVICE OF THE COMPLAINT AGAINST THE NAMED PARTY TIMELY FILED NUNC PRO TUNC, THE DEFAULT JUDGMENT AGAINST THE NAMED PARTY SHOULD NOT HAVE BEEN GRANTED RETROACTIVELY ONCE THE DEFECT WAS CURED (SECOND DEPT).
QUESTION OF FACT WHETHER OBJECT THAT FELL WAS THE TYPE OF OBJECT WHICH SHOULD HAVE BEEN SECURED WITH A SAFETY DEVICE ENUMERATED IN THE LABOR LAW STATUTE.
Unduly Suggestive Line-Up Required a New Trial
PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT DRIVER WAS DEFENDANT COMPANY’S EMPLOYEE AND WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE ACCIDENT; DEFENDANT COMPANY FAILED TO DEMONSTRATE THE DRIVER WAS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THE FACT THAT THE EMPLOYMENT CONTRACT USES THE TERM “INDEPENDENT CONTRACTOR” IS NOT DISPOSITIVE OF THE ISSUE (SECOND DEPT). ​
NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW NOT DEMONSTRATED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED.
PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT).
BECAUSE THE DETERMINATION THAT THE PROPOSED CONSTRUCTION WAS ZONING COMPLIANT WAS NEVER FILED THE 30-DAY APPEAL PERIOD NEVER RAN, BECAUSE A NOTICED HEARING WAS NEVER HELD THE APPROVAL OF THE CONSTRUCTION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT).
Vacation of a Note of Issue Does Not Constitute Marking Off the Calendar/One Year Automatic Dismissal Did Not Apply

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF... ABUTTING PROPERTY OWNER NOT LIABLE IN NEGLIGENCE FOR INJURY TO POLICE OFFICER...