An owner and managing agent of a building owe a non-delegable duty to persons on its premises to maintain the elevator in a reasonably safe condition and in good repair. Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 347 N.Y.S.2d 22 (Court of Appeals, 1973); Martinez v. Benau, 103 A.D.3d 545, 962 N.Y.S.2d 57 (1st Dept., 2013) (“It is uncontested that the owners had a non-delegable duty to maintain the premises, including its elevators, in a safe condition. The evidence also showed that the owners and their elevator contractor maintained exclusive control over the two elevators on the premises.”); and Multiple Dwelling Law §78.
The building owner and managing agent’s duty to maintain the premises extends to elevator repair which remains non-delegable as between the building owner or its managing agent and the injured party, “despite any contractual delegation of maintenance obligations by the owner to another party.” Wagner v. Grinnell Housing Development Fund Corporation, supra.
An owner or its managing agent has an obligation to plaintiff which is non-delegable; and therefore, are “powerless, as against plaintiff, to avoid liability no matter how extensively they delegate their responsibility to however independent a maintenance contractor.” Rogers v. Dorchester Assocs., supra.
A property owner has a non-delegable duty to passengers to maintain its building’s elevator in a reasonably safe manner and may be liable for elevator malfunctions or defects causing injury to plaintiff about which it has constructive or actual notice, or where, despite having an exclusive maintenance and repair contract with an elevator company, it fails to notify the elevator company about a known defect. Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 922 N.Y.S.2d 354 (1st Dept., 2011)
The doctrine or res ipsa loquitor may be invoked against the defendants in an action involving a malfunctioning elevator, if it is established that: (1) the event must be of the kind that normally does not occur in the absence of someone’s negligence; (2) it must be caused by an instrumentality within the exclusive control of defendant; and (3) plaintiff must not have effected the happening of the event by any voluntary action or contribution on the part of plaintiff. Weedon v. Armor Elevator Company, Inc., supra.
With respect to the second requirement of exclusive control, “exclusivity” is a relative term, and “is not an absolutely rigid concept.” Weedon, supra. In other words, res ipsa loquitur does not require sole physical access to the instrumentality causing the injury and can be applied in situations where more than one defendant could have exercised exclusive control. Chang v. F.W. Woolworth Co., 196 A.D.2d 708, 601 N.Y.S.2d 904 (1st Dept., 1993)
Moreover, Courts have held that “the doctrine of res ipsa loquitur can be applied even when more than one defendant is in a position to exercise exclusive control.” DiPilato v. H. Park Cent. Hotel, LLC, 17 A.D.3d 191, 795 N.Y.S.2d 518 (1st Dept., 2005) (“Although there is evidence that [hotel owner] and [elevator company] shared responsibilities with respect to the elevators, the IAS court erroneously concluded that the doctrine of res ipsa loquitur was inapplicable to these negligence claims because neither of these defendants had exclusive control of the elevator in question.”)
It is well established that Courts have imposed liability against a building owner or managing agent under the theory of res ipsa loquitur, irrespective of the contract it maintains with an elevator company with regards to maintenance of the elevators. Such a finding of co-existing control of the elevators in the premises must be found in this case and summary judgment should be denied. See, Felder v. Host Marriott Corporation, 276 A.D.2d 276, 714 N.Y.S.2d 259 (1st Dept., 2000) (affirming denial of building management company’s motion for summary judgment finding that plaintiff may assert the theory of res ipsa loquitur where there were factual questions as to the extent of the management company’s responsibility for the maintenance of the building’s elevator, despite the existence of a contract between the management company and an elevator company) and Bonifacio v. 910-930 Southern Boulevard LLC, 295 A.D.2d 86, 743 N.Y.S.2d 105 (1st Dept., 2002) (affirming denial of building owner’s motion for summary judgment upon showing that the elevator malfunction did not ordinarily occur in the absence of some negligence and since a fact question exists as to whether the building was within the exclusive control of defendant through an agent, the court could not exclude the possibility that an inference of negligence on the part of the building owner may be permissible through the application of res ipsa loquitur)