American Motorists Insurance v. Schindler Elevator Corp.

Appellate Division of the Supreme Court of New York

American Motorists Insurance v. Schindler Elevator Corp.

250 A.D.2d 791, 673 N.Y.S.2d 212, 1998 N.Y. App. Div. LEXIS 6043

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 26, 1998

StatusPublished

This text of 250 A.D.2d 791 (American Motorists Insurance v. Schindler Elevator Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Motorists Insurance v. Schindler Elevator Corp., 250 A.D.2d 791, 673 N.Y.S.2d 212, 1998 N.Y. App. Div. LEXIS 6043 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), entered September 23, 1997, as granted the plaintiff’s cross motion for summary judgment.

Ordered that the order is reversed insofar as appealed from, with costs, and the cross motion is denied.

The plaintiff has not met its burden of showing that, as a matter of law, the defendant breached the subject contract (see, CPLR 3212). The defendant correctly contends that the Supreme Court improperly engaged in issue determination when it decided that the defendant had not complied with its contractual obligation to “[r]egularly and systematically” maintain the escalator system of the plaintiffs subrogee when the defendant failed to distribute its maintenance guide to its employees and when one of its employees admitted to cleaning the escalator pit only once a year (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Contrary to the plaintiffs assertion, what constitutes regular and systematic [792]*792maintenance in the escalator industry is a question of fact for the trier of fact. Also, the defendant’s employee testified that he lubricated the escalator mechanism and entered the internal portion of the escalator during his bi-monthly maintenance visits, which raises a question of fact about the continuous servicing of the escalator mechanism. Therefore, because there is evidence that the defendant may have complied with the contract, summary judgment should not have been granted to the plaintiff. Mangano, P. J., Thompson, Santucci and Altman, JJ., concur.

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—In an action to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), entered September 23, 1997, as granted the plaintiff’s cross motion for summary judgment.

Ordered that the order is reversed insofar as appealed from, with costs, and the cross motion is denied.

The plaintiff has not met its burden of showing that, as a matter of law, the defendant breached the subject contract (see, CPLR 3212). The defendant correctly contends that the Supreme Court improperly engaged in issue determination when it decided that the defendant had not complied with its contractual obligation to “[r]egularly and systematically” maintain the escalator system of the plaintiffs subrogee when the defendant failed to distribute its maintenance guide to its employees and when one of its employees admitted to cleaning the escalator pit only once a year (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Contrary to the plaintiffs assertion, what constitutes regular and systematic [792]*792maintenance in the escalator industry is a question of fact for the trier of fact. Also, the defendant’s employee testified that he lubricated the escalator mechanism and entered the internal portion of the escalator during his bi-monthly maintenance visits, which raises a question of fact about the continuous servicing of the escalator mechanism. Therefore, because there is evidence that the defendant may have complied with the contract, summary judgment should not have been granted to the plaintiff. Mangano, P. J., Thompson, Santucci and Altman, JJ., concur.

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Bluebook (online)

250 A.D.2d 791, 673 N.Y.S.2d 212, 1998 N.Y. App. Div. LEXIS 6043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-motorists-insurance-v-schindler-elevator-corp-nyappdiv-1998.

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