Practice point: Defendant denied that it had actual or constructive notice of a dangerous
condition at the premises, and established that, before the accident, plaintiff's
decedent did not make any complaints about problems with the elevator's
shaking. However, plaintiff raised a triable issue of fact by coming forward with what are called trouble site reports
indicating that, in the year before the accident, there had been two
reported problems with the guide rollers on the elevators. According to the deposition testimony of the elevator company's witness,
these guide rollers are what allow an elevator car to move smoothly and
travel shake free. The witness also testified that the company had
recommended replacement of those rollers and that, at or about the time
of the accident, there was a recurring problem with low
voltage which may have affected how smoothly the elevators functioned.
Student note: In calculating whether more than 120 days had passed since the filing of the note of issue, the reference-point is the date on which the motion was served, not the date on which it was filed.
Case: Derouen v. Savoy Park Owner, L.L.C., NY Slip Op 05779 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Judicial review of a school's disciplinary determination.
