Promenade v. Schindler Elevator Corp.

Appellate Division of the Supreme Court of New York

Promenade v. Schindler Elevator Corp.

1 A.D.3d 240, 768 N.Y.S.2d 435, 2003 N.Y. App. Div. LEXIS 12195

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

DecidedNovember 20, 2003

StatusPublished

This text of 1 A.D.3d 240 (Promenade 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

Promenade v. Schindler Elevator Corp., 1 A.D.3d 240, 768 N.Y.S.2d 435, 2003 N.Y. App. Div. LEXIS 12195 (N.Y. Ct. App. 2003).

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Opinion

[241]*241Order, Supreme Court, New York County (Edward Lehner, J.), entered June 25, 2003, which denied defendant-appellant elevator company’s motion for partial summary judgment dismissing plaintiff condominium’s claims for breach of the parties’ 1989 maintenance contract and for personal injuries sustained by building residents, guests and employees, unanimously modified, on the law, to dismiss the claims for personal injuries, and otherwise affirmed, without costs.

Although the complaint does not assert a separate claim against appellant for personal injuries sustained by building residents, guests and employees, and although plaintiff represents that it makes no such claims, its discovery responses do cite such injuries as an element of its damages. As plaintiff does not have standing to raise such claims (Real Property Law § 339-dd; see Koatz v 1776 Second Ave. Assoc., 244 AD2d 201 [1997]), we modify to clarify that any such claims are dismissed.

While the complaint does not specifically recite the 1989 maintenance contract, it does allege that appellant “fail[ed] to make repairs and provide proper servicing of its equipment.” Furthermore, plaintiffs first set of interrogatories alleges that appellant failed not only to resolve certain specified construction or design-related defects but also “to make appropriate repairs from October 5, 1988 and continuing.” Together, these allegations gave appellant fair and timely notice that plaintiff was putting in issue not only the installation and one-year maintenance components of the 1985 installation contract between appellant and the building’s general contractor, but also the 1989 maintenance contract between appellant and plaintiff. Dismissal of plaintiffs claims based on the 1989 contract is not required simply because plaintiffs property manager testified that he does not “understand” plaintiffs claims to be based thereon. Concur—Buckley, P.J., Rosenberger, Ellerin, Williams and Gonzalez, JJ.

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[241]*241Order, Supreme Court, New York County (Edward Lehner, J.), entered June 25, 2003, which denied defendant-appellant elevator company’s motion for partial summary judgment dismissing plaintiff condominium’s claims for breach of the parties’ 1989 maintenance contract and for personal injuries sustained by building residents, guests and employees, unanimously modified, on the law, to dismiss the claims for personal injuries, and otherwise affirmed, without costs.

Although the complaint does not assert a separate claim against appellant for personal injuries sustained by building residents, guests and employees, and although plaintiff represents that it makes no such claims, its discovery responses do cite such injuries as an element of its damages. As plaintiff does not have standing to raise such claims (Real Property Law § 339-dd; see Koatz v 1776 Second Ave. Assoc., 244 AD2d 201 [1997]), we modify to clarify that any such claims are dismissed.

While the complaint does not specifically recite the 1989 maintenance contract, it does allege that appellant “fail[ed] to make repairs and provide proper servicing of its equipment.” Furthermore, plaintiffs first set of interrogatories alleges that appellant failed not only to resolve certain specified construction or design-related defects but also “to make appropriate repairs from October 5, 1988 and continuing.” Together, these allegations gave appellant fair and timely notice that plaintiff was putting in issue not only the installation and one-year maintenance components of the 1985 installation contract between appellant and the building’s general contractor, but also the 1989 maintenance contract between appellant and plaintiff. Dismissal of plaintiffs claims based on the 1989 contract is not required simply because plaintiffs property manager testified that he does not “understand” plaintiffs claims to be based thereon. Concur—Buckley, P.J., Rosenberger, Ellerin, Williams and Gonzalez, JJ.

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Bluebook (online)

1 A.D.3d 240, 768 N.Y.S.2d 435, 2003 N.Y. App. Div. LEXIS 12195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/promenade-v-schindler-elevator-corp-nyappdiv-2003.

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