Lopez v. New York City Housing Authority

159 A.D.2d 236

Opinion

Order, Supreme Court, Bronx County (Hansel McGee, J.), entered on or about Decernher 21, 1988, which denied the parties’ cross motions for summary judgment, is unanimously affirmed, without costs.

The infant plaintiff was injured when she fell down an elevator shaft after the elevator doors opened and she then attempted to jump from the stalled elevator to the nearest floor, approximately 4V£ feet below. She argues that defendant’s negligent maintenance of the elevator and the foreseeability of an infant jumping from a stalled elevator combine to make defendant liable as a matter of law; defendant counters that even if it was negligent, the infant plaintiff’s act of jumping was not a foreseeable event. Because the record raises issues of fact concerning, inter alia, the actual experience of the infant plaintiff with elevators and the prior history and frequency of this elevator’s malfunctioning, it cannot be said, as a matter of law, that defendant’s negligence in maintaining the elevator was, as plaintiffs claim, the cause of the accident, or, as defendant claims, superseded by an unforeseeable cause (compare, Boltax v Joy Day Camp, 67 NY2d 617). Concur—Kupferman, J. P., Asch, Kassal, Wallach and Rubin, JJ.