The elevator's here and it's safe to get on.

The First Department dismissed a complaint seeking damages allegedly suffered when plaintiff tripped and fell while exiting an elevator at work, in Cortes v. Central Elevator, Inc., which was decided on November 8, 2007. The court found that defendant offered submissions sufficient to establish that the elevator was working properly and that there was no misleveling problem on the day of the accident. Among other things, the court pointed to plaintiff's deposition testimony that he did not see the elevator in a misleveled state after his fall, and an affidavit from an elevator consultant who inspected the elevator and concluded that its doors would not have opened if the elevator was more than one-half inch below the hallway floor.

The court noted that plaintiff's expert's affidavit was conclusory and unsupported by the anything in the record. The court gave short shrift to plaintiff's res ipsa argument, noting that the accident could have occurred in the absence of negligence and could have been caused by a misstep on plaintiff's part.

In light of its determination, plaintiff's cross-motion to compel production of post-accident maintenance records was academic, but, the court opined that it was improper because neither control nor defective manufacture were at issue.