Fischer v. Crossard Realty Co.

63 A.D.3d 540, 880 N.Y.S.2d 479

Opinion

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered December 10, 2008, which, in an action for personal injuries allegedly caused by elevator misleveling, granted defendant building owner’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, defendant’s motion denied and the complaint reinstated.

An issue of fact as to whether defendant had notice of the claimed misleveling is raised by the elevator’s service records, as clarified by the testimony of the elevator maintenance company’s president and the affidavit of plaintiff’s expert. Defendant’s argument that plaintiffs testimony shows that she fell not because of any misleveling, but when she tried to quickly move out of the way of elevator doors that allegedly were closing prematurely and frightened her, was improperly raised for the first time in its reply papers before the motion court, and we decline to consider it (see Azzopardi v American Blower Corp., 192 AD2d 453, 454 [1993]). Concur—Saxe, J.E, Buckley, McGuire, Moskowitz and Acosta, JJ.