In Parris v. Port of New York Authority and Otis Elevator, 2008 NY Slip Op 00197, AD and New York Co. Index 121678/03, plaintiff claims to have suffered injuries when the escalator at the Port Authority Bus Terminal he was riding suddenly “jerked” and “pulled” causing him to fall backwards and hit his head. Defendants moved for summary judgment arguing that even if a mechanical defect existed, there were no records of prior complaints and service maintenance records equally reflected no problems. Plaintiff opposed this motion by submitting an affidavit of an expert engineer. This expert, who never conducted an on-scene inspection, averred that plaintiff’s accident could have been due to warn parts. While the trial court denied summary judgment, finding a question of fact was raised by this expert, the Appellate Division – First Department disagreed, finding the expert’s findings to be factually unsupported and too speculative.

On an awkward note, the trial judge, Justice Rolando T. Acosta, was recently promoted to the Appellate Divison – First Department and now sits with the very judges that reversed him.

http://www.nycourts.gov/reporter/3dseries/2008/2008_00197.htm