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ELEVATOR MAINTENANCE COMPANY DID NOT DISPLACE THE BUILDING OWNER’S AND MANAGER’S DUTY TO KEEP THE ELEVATORS SAFE AND DID NOT LAUNCH AN INSTRUMENT OF HARM; IT’S MOTION FOR SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE SHOULD HAVE BEEN GRANTED; A VIOLATION OF THE NYC BUILDING CODE IS NOT NEGLIGENCE PER SE (FIRST DEPT).

The First Department, modifying Supreme Court in this elevator accident case, noted that violation of the NYC Building Code is some evidence of negligence but not negligence per se, and held that Dunwell’s (the elevator maintenance company’s) motion for summary judgment should have been granted. Dunwell had demonstrated two Espinal factors did not apply (it did not displace the building defendants’ obligation to keep the elevators safe and it did not launch an instrument of harm, i.e., it did not exacerbate or create the defects in the elevator):

Dunwell’s motion for summary judgment dismissing all claims against it should be granted. Dunwell cannot be held liable to plaintiff, because it did not owe the decedent any duty. There is no evidence in the record that Dunwell created or exacerbated any of the alleged elevator defects, including the missing door rollers and link arms, even if it were found to have wrongfully failed to diagnose or correct them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 142-143 [2002] … ). Moreover, Dunwell in fact did recommend that these parts be replaced, but its proposal was not accepted by the Building Defendants, and the governing maintenance agreement did not allow Dunwell to replace them without authorization … . The maintenance agreement was not comprehensive and exclusive and therefore did not displace the Building Defendants’ obligations to maintain the elevators in a safe condition … . Plaintiff does not argue that the decedent detrimentally relied on Dunwell’s continued performance of its duties … . Baez v 1749 Grand Concourse LLC, 2019 NY Slip Op 08948, First Dept 12-12-19

 

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