Opinion
2012-02-28
Ivonne CRUZ, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant,The City of New York, Defendant.
Herzfeld & Rubin, P.C., New York (Neil R. Finkston of counsel), for appellant. William J. Rita, New York (Wayne M. Rubin of counsel), for respondent.
Herzfeld & Rubin, P.C., New York (Neil R. Finkston of counsel), for appellant. William J. Rita, New York (Wayne M. Rubin of counsel), for respondent.
MAZZARELLI, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered June 13, 2011, which denied 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 granted. The Clerk is directed to enter judgment accordingly.
Plaintiff was riding in an elevator when it stopped halfway between the eleventh and twelfth floors of her building. When she jumped out of the elevator to the eleventh floor several feet below, she fell and sustained injuries to her right side. The misleveling of the elevator was attributed to a metal bed frame that had apparently been discarded down the elevator shaft. The frame impacted the roof of the elevator car and damaged the mechanism responsible for causing the car to properly level at each floor.
Defendant NYCHA established its entitlement to judgment as a matter of law by showing there had been no complaints about the misleveling condition prior to the accident. The record shows that NYCHA, which serviced the elevator on a regular basis, had recorded no problems with the elevator misleveling ( see Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 458, 922 N.Y.S.2d 354 [2011], lv. denied 17 N.Y.3d 708, 2011 WL 4030048 [2011]; Parris v. Port of N.Y. Auth., 47 A.D.3d 460, 461, 850 N.Y.S.2d 53 [2008] ). Nor did it have notice of the misleveling of the elevator due to debris being discarded down the elevator shaft.
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff did not provide evidence demonstrating that there were prior accidents involving a similar malfunctioning of the elevator at issue ( see Narvaez v. New York City Hous. Auth., 62 A.D.3d 419, 878 N.Y.S.2d 724 [2009], lv. denied 13 N.Y.3d 703, 2009 WL 2779372 [2009]; Lapin v. Atlantic Realty Apts. Co., LLC, 48 A.D.3d 337, 338, 851 N.Y.S.2d 543 [2008] ).