Malota v Tishman Speyer Props.
Annotate this CaseDecided on October 7, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: MAY 2004 TERM McCOOE, J.P., DAVIS, SCHOENFELD, JJ.
04-053-055Gjystina Malota, Plaintiff-Respondent, NY County Clerk's
against
Tishman Speyer Properties, Tishman Speyer #570925/03Properties, Inc., Tishman Speyer Properties, L.P., Parson & Brown, LLP, Donald P. Parson, Paul Brown, Anderson Kill & Olick, P.C., Anderson Russell Kill & Olick, P.C., Defendants-Appellants, Hodgson Russ Andrews Woods & Goodyear, LLP, and Hodgson Russ, LLP, Defendants. Tishman Speyer Properties, L.P. and Tishman Speyer Properties, Inc., Third-Party Plaintiffs-Appellants, Arcade Cleaning, Ltd., d/b/a Arcade Building Services, Third-Party Defendant-Respondent.
Defendants appeal and cross-appeal from an order of Civil Court, New York County, entered July 9, 2003 (Geoffrey D. Wright, J.) which denied their respective motions for summary judgment dismissing the complaint.
PER CURIAM:
Order entered July 9, 2003 (Geoffrey D. Wright, J.) modified to grant the cross motion by the Anderson defendants for summary judgment dismissing the complaint against them; as modified, order affirmed, without costs. The Clerk is directed to enter judgment in favor of said defendants dismissing the complaint as against them. [*2]
Plaintiff allegedly was injured in the course of her employment as an office cleaner when, while vacuuming a ninth floor hallway in the Chrysler Building, she opened a hallway door and was struck by a wooden ladder positioned behind the door. She commenced this negligence action against the building owner/managing agent (Tishman Speyer), the prime tenant (Anderson Kill & Olick), and the subtenants of the premises (Parson & Brown and their two principals).
Defendants' respective motions for summary judgment offered denials of ownership of the ladder or any knowledge of its placement behind the door. Plaintiff opposed, asserting that further disclosure was needed because the ownership and placement of the ladder were matters within the defendants' knowledge. The motions were denied without prejudice to renewal upon completion of discovery.
The defendant prime tenant's submission in support of its motion for summary judgment demonstrated prime facie that it had removed the only ladder that it ever kept on the premises when it relocated its offices approximately four years before the accident and that the only portion of the demised office space retained by it for storage purposes was far removed from the sublet portion of the premises where the accident is alleged to have occurred. In view of the plaintiff's failure to refute this detailed factual showing, the defendant prime tenant was entitled to summary judgment dismissing the complaint as against it. With respect to the remaining defendants, however, the record so far developed raises factual issues concerning the manner in which the plaintiff was injured and who, if anyone, bears responsibility for the falling ladder (see Kowalski v Boar of Educ., 260 AD2d 546, 548 [1999]). The open questions of the remaining defendants' ownership of the ladder or knowledge as to its precarious placement may not properly be resolved on the papers submitted. Nor can it presently be determined whether the third-party defendant will be required to contractually indemnify defendant third-party plaintiff Tishman Speyer, in view of the unresolved factual issues as to Tishman Speyer's negligence (see Branch v Yonkers Constr. Co., 306 AD2d 508, 510 [2003]).
This constitutes the decision and order of the court.
APPELLATE TERM, SUPREME COURT, FIRST DEPARTMENTMAY 2004
McCOOE, J.P., DAVIS, SCHOENFELD, JJ.
CONCURRING MEMORANDUM
William P. McCooe, J.
I concur in the result but write separately to advance an additional ground for denial because this motion may be renewed after the completion of disclosure. [*3]
The principal unresolved factual issues should be the location of the accident and which defendant, or both, had control of that location. The plaintiff conceded at oral argument that the prime tenant was not liable and I do not address that issue. The two remaining defendants deny control of the accident site and will probably continue to deny ownership or positioning of the ladder.
Plaintiff is not required to establish ownership of the ladder. The determinative issue is who had control of the premises and whether the premises were in a reasonably safe condition if the ladder was positioned as claimed by the plaintiff (Basso v. Miller, 40 NY2d 233, 241 [1976]).
"It is settled that the proponent of a motion for summary judgment must establish that there are no material issues of fact in dispute and that it is entitled to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; 10 E. 70th St. v Gimbel, 309 AD2d 644 [1st Dept 2003]). Moreover, plaintiff may establish a prima facie case of negligence based wholly on circumstantial evidence as long as he/she demonstrates the existence of ' "facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred" '(Schneider v. King Highway Hosp. Ctr., 67 NY2d 743, 744 [1968] [citations omitted]" (Affenito v PJC 90th Street, 5 AD3d 243, 245 [1st Dept 2004]).
Accepting the manner of the alleged happening of the accident, which we must do on a summary judgment motion, the doctrine of res ipsa loquitur would apply to a falling ladder positioned behind an access door.
"A plaintiff seeking a charge on the theory of res ipsa loquitur must establish three elements: (1) the event must be of a kind that ordinarily would not occur absent negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not be due to any voluntary action or contribution on the part of the plaintiff" (Banca Di Roma v Mutual of Am. Life Ins. Co., Inc., 17 AD3d 119, 120 [1st Dept 2005]; Pavon v Rudin, 254 AD2d 143 [1st Dept 1998]). The plaintiff's version of the accident establishes the first and third elements.
As to the second element, "[T]he 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 AD3d 191, 193 [1st Dept 2005], quoting Wen-Yu Chang v. Woolworth Co., 196 AD2d 708, 708 [1st Dept 1993]). Control is dependent upon the location of the accident within the premises.
The Order should be modified to the extent indicated.
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