LOTRUGLIO v. SAKS FIFTH AVENUE


281 A.D.2d 399 (2001)

721 N.Y.S.2d 551

JOANN LOTRUGLIO, Respondent, v. SAKS FIFTH AVENUE, Appellant, et al., Defendant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 5, 2001.


Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained on February 6, 1994, when she was crushed by rapidly-closing elevator doors while entering an elevator on the first floor of a department store owned by the defendant Saks Fifth Avenue (hereinafter Saks). Saks had contracted with the defendant Millar Elevator Service Company to provide exclusive maintenance of the elevator. Saks moved for summary judgment dismissing the complaint insofar as asserted against it, arguing, inter alia, that it did not have notice, actual or constructive, of any problem with the function of the elevator doors. The Supreme Court denied the motion, stating that the doctrine of res ipsa loquitur applies.

Although we agree with Saks that the doctrine of res ipsa loquitur is inapplicable (cf., Dermatossian v New York City Tr. Auth., 67 N.Y.2d 219; Feblot v New York Times Co., 32 N.Y.2d 486), we affirm on a different ground. As the proponent of a motion for summary judgment, Saks had the burden of establishing its prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman v City of New York, 49 N.Y.2d 557, 562). Saks failed to make such a showing, thus warranting the denial of its motion (cf., Feblot v New York Times Co. supra; Cacciolo v Port. Auth., 186 A.D.2d 528; Altman v Broadway Realty Co., 101 A.D.2d 83).


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