Notice of Recurring Problems in Elevator Cases
In Derouen v. Savor Park Owners, LLC (1st Dept. 2013) (2013 NY Slip Op 05779) the Appellate Division First Department affirmed the denial of summary judgment as to the building owner, finding that there were issues of fact regarding how the accident occurred, and modified the lower court’s decision by denying Guardsman’s attempt to have Savoy’s claim for Common Law indemnification dismissed.
Following an accident that occurred as plaintiff was exiting an elevator, plaintiff commenced an action against the building owner Savoy which in turn commenced a third-party action against the elevator maintenance company, Guardsman Elevator.
Of note, “Savoy and Guardsman each moved for summary judgment on Savoy’s contract and common-law indemnification claims in the third-party complaint”. Regarding notice “Although Guardsman was not in continuous control of the possession and operation of the elevator, just as there are triable issues of fact whether Savoy had notice of an alleged dangerous or defective condition in the elevator at issue, there are triable issues of fact whether Guardsman had notice of those same conditions (see Rogers v. Dorchester Associates, 32 NY2d 553 ), particularly since Guardsman had been to the premises for its monthly service call just three days before plaintiff’s accident. In addition, there are issues of fact about whether the scope of the repairs needed, if any, were within the duties delegated to Guardsman under the contract (see id. at 558-559)”. Thus given the issues of fact that it found abound the matter will proceed. This matter underscores the Court’s reluctance in an elevator case to restrict notice of a condition, particularly if the problem can arguably be claimed to be recurring.