Opinion
2001-03029, 2001-09842
Argued September 9, 2002
October 1, 2002
In two related actions to recover damages for personal injuries, which were consolidated for trial under a consolidated caption, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Beisner, J.), dated March 19, 2001, which granted those branches of the separate motions of the defendants Poughkeepsie Galleria Company and Marc A. Malfitano, and the defendant Midstate Elevator Company, which were for summary judgment dismissing the complaint insofar as asserted against them, and granted that branch of the motion of the defendant Montgomery Kone, Inc., successor, a/k/a Montgomery Elevator Company, which was for summary judgment dismissing the complaint, and (2) an order of the same court, dated November 7, 2001.
Steven M. Melley, Rhinebeck, N.Y., for appellant.
Cerussi Spring, White Plains, N.Y. (Richard D. Bentzen and Louis F. Eckert of counsel), for respondents Poughkeepsie Galleria Company and Marc A. Malfitano.
Susan B. Owens, Valhalla, N.Y. (Joseph M. Zeccah of counsel), for respondent Midstate Elevator Company.
Bouck, Holloway, Kiernan and Casey, LLP, Albany, N.Y. (Mark R. Sonders of counsel), for respondent Montgomery Kone, Inc., successor, a/k/a Montgomery Elevator Company.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
ORDERED that the appeal from the order dated November 7, 2001, is dismissed as abandoned (see 22 NYCRR 670.8[e][1]); and it is further,
ORDERED that the order dated March 19, 2001, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.
The plaintiff brought this action to recover damages for injuries she sustained while she was a passenger on a downward escalator at the Poughkeepsie Galleria. The escalator stopped abruptly and her lower back made contact with a baby stroller held by the passenger behind her. Subsequently, the plaintiff sued Poughkeepsie Galleria Company and Marc A. Malfitano, the owners of the property, Midstate Elevator Company, the company that maintained the escalator, and Montgomery Kone, Inc., successor, a/k/a Montgomery Elevator Company, the manufacturer of the escalator.
The defendants made a prima facie showing of their respective entitlements to judgment as a matter of law by showing that they did not have notice of the alleged dangerous condition which caused the plaintiff's injury (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557). Contrary to the plaintiff's contention, a general awareness that customers rode on the escalator with baby strollers is not sufficient to establish constructive notice of the particular condition which caused the plaintiff's injury (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967). Furthermore, the affidavit of the plaintiff's expert did not contain sufficient allegations regarding what caused the escalator to stop abruptly to demonstrate that his conclusions were more than mere speculation (see Romano v. Stanley, 90 N.Y.2d 444, 451-452).
The plaintiff's remaining contentions are without merit.
RITTER, J.P., KRAUSMAN, McGINITY and LUCIANO, JJ., concur.