McMurray v. P.S. Elevator, Inc.McMurray v. P.S. Elevator, Inc.
—In a negligence action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Kitzes, J.), dated September 20, 1994, as, upon a jury verdict finding it 39% at fault in the happening of the accident аnd awarding the plaintiffs the sum of $3,515,231.30, is in favor of the plaintiffs and against it, and the third-party defendant separately appeals from so much of the judgment as, upon the jury verdict finding it 55% at fault in the happening of thе accident is in favor of the defendant third-party plaintiff and against it directing the defen
Ordеred that the judgment is reversed, on the law, and the complaint and third-party complaint are dismissed; аnd it is further,
Ordered that the appellants are awarded one bill of costs.
On the morning of September 21, 1985, the plaintiff Kevin McMurray, a porter employed by One Sutton Placе South Corp. (hereinafter Sutton Place), was injured while operating a freight elevator inside his emрloyer’s building. According to McMurray, the accident occurred when the freight elevator suddenly shifted аs he was reaching out to close its accordion style inner gate. The sudden movement caused McMurray to fall, and one of his legs became trapped between floors. Although inspectiоns were performed shortly after the accident by both the defendant P.S. Elevator, Inc. (hereinafter P.S. Elevator), and the New York City Buildings Department, these inspections revealed no mechanicаl defects which could have permitted the elevator to move with its inner gate open, and thus сause the accident. The plaintiffs theorize, however, that the gate switch which should have prevented the elevator from operating unless the inner gate was closed must not have been wоrking properly at the time of the accident, and as a result, the vibration caused when McMurray entered the elevator caused it to shift. In contrast, P.S. Elevator maintains that Sutton Place employees overrode the gate switch with rubber bands in order to allow the elevator to operаte with its gate open.
On appeal, P.S. Elevator contends that the trial court erred in submitting the case to the jury on the theory of res ipsa loquitur because the plaintiffs failed to establish that the subjеct freight elevator was in P.S. Elevator’s exclusive control. We agree. Although it is well settled that "in a рroper case circumstantial evidence of an elevator door malfunction might be suffiсient to permit the inference of negligent maintenance as to some mechanical dеvice controlling the operation of the door over which only the defendant has control” (Cacciolo v Port Auth.,
Furthermore, the plaintiffs failed to prove that P.S. Elevator was negligent in making any requested reрairs to the elevator, and that this negligence was a proximate cause of the accident. Although P.S. Elevator responded to a complaint that the subject freight elevator was running slowly аpproximately one month before the accident, its employees made a minor repair to correct this acceleration problem, which was unrelated to the alleged malfunction of the gate switch which allegedly caused the accident. In the absence of a сontract requiring P.S. Elevator to routinely inspect and maintain the elevator, it had no duty, as an independent repairer / contractor, to inspect the elevator for defects unrelated to the problem it was summoned to correct, and to warn the building’s owner of any such defects (see, Giustino v Hollymatic Corp.,