New York State Court of Claims

New York State Court of Claims

HARRINGTON v. STATE OF NEW YORK, #2006-015-089, Claim No. 109521, Motion No. M-71288


Court granted defendant's motion for summary judgment dismissing the claim for personal injuries occasioned by doors of elevator closing too quickly. Claimant failed to raise issue of fact regarding State's notice of defect or dangerous condition.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Friedman and Molinsek, P.C.By: Stephen L. Molinsek, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: McNamee, Lochner, Titus & Williams, P.C.Scott C. Paton, Esquire, appearing
Third-party defendant’s attorney:

Signature date:
May 23, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment dismissing the claim is granted. On April 29, 2003 the claimant was attending a conference at the Empire State Plaza and was in the Legislative Office Building (LOB) with several colleagues when she attempted to enter an elevator. Although she does not recollect on which floor the alleged incident occurred nor to which floor of the LOB she and her associates were headed, she does recall that she was returning from lunch and was the last person in her group to enter the elevator. In her affidavit in opposition to the defendant's motion she described the happening of the accident in the following manner: "At the time I first entered the elevator, both doors were fully opened; however, as I crossed the threshold of the elevator, both doors rapidly closed, pinning my left and right shoulders and arms. A woman in the elevator to my right, repeatedly pushed the open door button, but it did not immediately respond. I was completely pinned by these doors for approximately 5 to 10 seconds before the doors finally opened."

In paragraph 2 of the claim (see defendant's Exhibit B) the claimant alleged as follows:
It is the plaintiff's contention that the State of New York failed to properly maintain Elevator No. 5 at the New York State Legislative Offices located at the Empire State Plaza, Albany, New York or in the alternative, it is plaintiff's contention that the State of New York allowed said Elevator No. 5 to remain in a dangerous and defective condition notwithstanding it's actual and/or constructive notice of the alleged defect. Please note that this claim is based, in part, on res ipsa loquitur and, therefore, the facts which allow a more particularized statement of the alleged negligence are in the exclusive possession of the defendant.

Defendant has moved for summary judgment asserting that under these circumstances the doctrine of res ipsa loquitur does not apply since one or more of the essential elements required for application of the doctrine are absent. Defendant also asserts that without proof of actual or constructive notice that elevator no. 5 was dangerous or defective the State cannot be held liable in negligence for claimant's injury. Claimant opposed the motion alleging, inter alia, that the State had received 19 complaints concerning the subject elevator over a two year period immediately preceding the claimant's accident (see claimant's opposition papers, Exhibit A).

Numerous appellate level decisions have addressed the application of the doctrine of res ipsa loquitur in the context of cases involving closing elevator doors including Feblot v New York Times Co., (32 NY2d 486); LoTruglio v Saks Fifth Ave. (281 AD2d 399); Graham v Wohl (283 AD2d 261); Wiener v Court Street Investors (2005 WL 742803 [NY SupApp Term]); Chiesa v Citibank, N.A. (2001 WL 1803322 [NY SupApp Term]) and Cacciolo v Port Auth. of N.Y.& N.J., (186 AD2d 528).

In Cacciolo (supra) the Appellate Division, Second Department succinctly related the quantum of proof required to support a cause of action premised upon res ipsa loquitur (at pp 528-529):
Submission of a case to a jury on the theory of res ipsa loquitur is appropriate when a plaintiff establishes that (1) the event was of a kind which ordinarily does not occur in the absence of someone's negligence, (2) the agency or instrumentality which caused the event is within the exclusive control of the defendant, and (3) the event was not due to any voluntary action or contribution on the part of the plaintiff (see, Dermatossian v New York City Tr. Auth., 67 NY2d 219; Weeden v Armor El. Co., 97 AD2d 197). Application of the doctrine may be warranted if "upon 'a common sense appraisal of the probative value' of the circumstantial evidence, measured in part by the test of whether it is the best evidence available [an] inference of negligence is justified" (Foltis, Inc. v City of New York, 287 NY 108, 115).

With regard to the instant matter, the claimant has failed to establish both that the instrumentality which caused the event complained of was within the defendant's exclusive control and that she did not contribute to the happening of the event. First, "[t]he requirement of exclusive possession and control is not an absolutely rigid concept. It implies that the possession and control of the defendant over the instrumentality are of such a character that the probability that the negligent act was caused by someone other than the defendant is so remote that it is fair to permit an inference that the defendant is the negligent party. It is under these circumstances that 'the thing speaks for itself' and that the trier of the facts may draw an inference of negligence against the defendant. If this characteristic of possession and control is absent, the doctrine is not applicable" (Cameron v Bohack Co., 27 AD2d 362, 364). According to claimant's examination before trial testimony Elevator No. 5 was equipped with a control panel which contained a button which when pressed caused the elevator doors to open. Upon the proof presented on the motion it is entirely plausible that the elevator also contained a "close door" button which, if activated by a fellow passenger, could have caused the doors to close and prevented their re-opening until released. The potential for outside intervention relative to the closing of the elevator doors prevents a finding that application of the doctrine of res ipsa loquitur is appropriate under the facts of this case.

According to her examination before trial, claimant was the last person of a group of approximately 10 people to enter the elevator. Claimant determined how and when she entered the elevator. As the Court of Appeals observed in Feblot v New York Times Co., 32 NY2d 486, 496 "[e]ven if the doors started to close while she was partially in and partially out of the elevator, as she claimed at the trial, she still had it within her power to cause them to instantly reopen automatically by merely touching the rubber safety edge on the inside of the door with her hand, as countless people entering and leaving elevators routinely do every day when the door of an automatic self-service door starts to close before they are completely inside or outside the elevator, as the case may be." This same rationale leads the Court to conclude that with regard to the elevator herein, which the proof establishes was equipped with an infrared beam which caused the doors to open any time the beam was interrupted, claimant's "version of the incident, accepted as true, does not rule out the possibility that her injury was caused by her own voluntary actions, notwithstanding that the door closed on her quickly and did not retract before or immediately upon contact " (Graham v Wohl, supra).

Under these circumstances, the Court finds that res ipsa loquitur does not apply to the facts related in the proof submitted on the instant motion.

A claimant injured by closing elevator doors may still be able to recover against a building owner such as the State of New York where he or she can demonstrate that the owner failed "to correct conditions of which [it] [had] knowledge or 'for failure to use reasonable care to discover and correct a condition which [it] ought to have found' (Rogers v Dorchester Assoc., 32 NY2d 553, 559)" (Chiesa v Citibank, N.A., 2001 WL 1803322, supra).

On its motion the defendant offered copies of the pleadings and an affirmation of defense counsel; transcripts of examinations before trial of the claimant and Martin Gilroy (the State's Director of Real Property Management); and affidavits with attachments of Dennis L. Williams (Assistant Director of the Empire State Plaza), Matthew Robbins (Area Manager of Schindler Elevator Company which held the contract to maintain the LOB elevators on the date of claimant's accident) and Thomas Helmstadt (Schindler's Field Supervisor).

The affidavit of Mr. Williams alleges that "all of the records available to the State demonstrate that the elevator doors were operating in a safe and proper manner at the time of the claimed incident, and throughout the three-year period prior thereto." Mr. Robbins alleges in his affidavit that from the effective date of Schindler's contract (January 1, 2003) through the date of claimant's accident (April 29, 2003) there was never "a problem with the doors of Elevator No. 5 shutting unexpectedly, or closing on passengers." Mr. Helmstadt avers that "[t]he records maintained by Schindler reveal no indication that Elevator No. 5 of the LOB was operating improperly at or about the time of the incident, or that here [sic] was any history of the doors of Elevator No. 5 shutting unexpectedly, or closing upon passengers". Helmstadt further refuted the assertion set forth in claimant's bill of particulars (Exhibit F) that the elevator doors may have malfunctioned due to dirty door sensors stating that dirt on the sensors would have interrupted the infrared beam causing the doors to remain in an open position rather than closing as the claimant contends.

Following the receipt of claimant's opposition papers the defendant submitted a reply affidavit from James Sickles, a Field Technician with Schindler who had been previously employed in the same capacity with the prior elevator service contractor, Montgomery Kone[1]. Sickles, like Mr. Helmstadt, denied that dirty door sensors could have contributed in any way to claimant's accident. He explained that in 2003 the LOB elevators were equipped with infrared beams that controlled the opening and closing of the doors much like rubber safety bumpers on older elevators. Mr. Sickles claimed that once the beam was interrupted the doors to the elevator open automatically.

As the proponent of a summary judgment motion, the State has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In the Court's view defendant has met its burden of establishing it did not have actual or constructive notice of a dangerous condition or defect which may have caused the doors of the subject elevator either to close too quickly or fail to retract (see Clark v New York City Hous. Auth., 7 AD3d 440; DeSanctis v Montgomery El. Co., 304 AD2d 936; Tashjian v Strong & Assocs., 225 AD2d 907).

In opposition to the defendant's motion claimant submitted, inter alia, 12 pages of monthly complaints and a page entitled Elevator Fireman's Service Test related to the subject elevator. Despite the allegation of claimant's attorney that such records[2] include complaints of "banging doors" and "doors not shutting" the Court's review of claimant's Exhibit A has failed to disclose any such complaints regarding this elevator[3].

Claimant also relies upon an Albany Times Union article dated February 7, 2005 which was more than 21 months after the claimant's April 29, 2003 accident. While hearsay may be used to defeat a motion for summary judgment if the party offering the hearsay tenders an acceptable excuse for its failure to supply evidence in admissible form (Baker v City of Elmira, 271 AD2d 906; Kwong On Bank Ltd. v Monrose Knitwear Corp., 74 AD2d 768) no such excuse has been offered by the claimant. In any event, the newspaper article is insufficient to defeat the defendant's motion as "the existence of a factual issue may not be established by the hearsay information of one who had no personal knowledge of the facts" (Young v Fleary, 226 AD2d 454, 455; see also Borough Hall-, Oxford Tobacco Corp. v Central Office Alarm Co., 35 AD2d 523). In addition, the article is both conclusory and irrelevant (P & N Tiffany Props., Inc. v Maron, 16 AD3d 395).

In her bill of particulars the claimant specifies that the defendant's negligence consisted of failing to properly "clean elevator sensors despite its actual knowledge that same regularly malfunctioned due to being dirty" (Exhibit F). Not only is there no proof that the door sensor on the elevator at issue herein was dirty at the time of the alleged incident involving the claimant, there is no proof of notice to the State of any problems with the elevator's sensor in the form of prior maintenance issues or complaints. Furthermore, as referenced earlier herein, the unrefuted affidavits of Messrs. Helmstadt and Sickles establish that a dirty sensor would cause the elevator doors to open and remain in that position rather than close in the rapid manner described by the claimant. As a result, the Court finds that the claimant has failed to demonstrate the existence of a material issue of fact with regard to defendant's actual or constructive notice of a defect affecting elevator no. 5 which might have caused or contributed to claimant's injury (see Tashjian v Strong & Assocs., supra). Defendant's motion to dismiss the claim is, therefore, granted.

May 23, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The court considered the following papers:
  1. Notice of motion dated February 8, 2006;
  2. Affirmation of Scott C. Paton dated February 8, 2006 with exhibits;
  3. Affidavit of Dennis L. Williams sworn to February 2, 2006 with exhibits;
  4. Affidavit of Matthew Robbins sworn to February 7, 2006 with exhibits;
  5. Affidavit of Thomas Helmstadt sworn to February 7, 2006 with exhibit;
  6. Affidavit of Stephen L. Molinsek sworn to February 21, 2006 with exhibits;
  7. Affidavit of Kerriann Harrington sworn to February 21, 2006;
  8. Affidavit of Elizabeth Jayne Putman sworn to February 21, 2006;
  9. Affidavit of James Sickles sworn to February 28, 2006 with exhibit;
  10. Letter dated March 6, 2006 from Stephen L. Molinsek.

[1].Although in a letter dated March 6, 2006 claimant's attorney objected to the Court's consideration of the Sickles' reply affidavit on due process grounds claimant appears to have invited the submission (see Molinsek affidavit [para 5] in opposition). Claimant failed to request permission to submit a sur-reply and the Court has therefore considered the Sickles' reply affidavit as a proper submission.
[2].These records while neither certified nor otherwise authenticated appear to be business records of either Montgomery Kone or Schindler Elevator Co., elevator service contractors hired by the State of New York to maintain its elevators including elevator #5 in the LOB.
[3].To the extent some entries were difficult to read the Court is not required to decipher unreadable documents.