Ardolic v New Water St. Corp.

[*1] Ardolic v New Water St. Corp. 2010 NY Slip Op 50474(U) [26 Misc 3d 145(A)] Decided on March 19, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 19, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, J.
570050/09

Naslije Ardolic and Rasim Ardolic, Plaintiffs-Respondents,

against

New Water Street Corporation, Defendant-Appellant, 09/169-171 -and- Central Elevator, Defendant-Appellant. New Water Street Corporation, Third-party Plaintiff-Appellant, Arcade Building Services, Inc., Third-party Defendant-Appellant. Central Elevator, Inc., Second Third-party Plaintiff- Appellant, Paris Maintenance Company, Inc., Second Third-party Defendant- Appellant. Central Elevator, Inc., Third Third-party Plaintiff-Appellant, Gilbert International, Inc., and

[*2]Gilbert Intl. Maintenance, Inc., Third Third-party Defendants.

Defendants New Water Street Corporation and Central Elevator Inc. appeal from those portions of an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated July 1, 2008, which denied their respective motions for summary judgment dismissing the complaint and all cross claims asserted against them. Second third-party defendant Paris Maintenance Company, Inc. appeals from that portion of the aforesaid order which denied its motion for summary judgment dismissing the impleader complaint asserted against it.

Per Curiam.

Order (Manuel J. Mendez, J.), dated July 1, 2008, insofar as appealed from, reversed, without costs, motions of New Water Street Corporation ("New Water") and Central Elevator Inc. ("Central") granted, and complaint and cross claims asserted against those defendants dismissed; and motion of second third-party defendant Paris Maintenance Company, Inc. ("Paris") granted, and impleader complaint asserted against it dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff, employed as an office cleaner by third-party defendant Arcade Building Services, tripped and fell as she was in the process of or had just exited elevator #70, a freight elevator, in a commercial building owned by defendant New Water. Plaintiff alleged that she was caused to trip because the elevator misleveled three to four inches. The elevators in the building were maintained and serviced by defendant Central pursuant to an "all-inclusive" "preventative maintenance and full coverage service contract" between Central and New Water.

Plaintiff commenced this action to recover damages against New Water and Central, asserting causes of action for common law negligence and negligence premised upon the doctrine of res ipsa loquitur. In turn, Central impleaded, among other parties, Paris, a cleaning contractor at the building premises whose employees operated elevator #70. Civil Court denied the respective motions of New Water, Central and Paris for summary judgment dismissing the claims asserted against them, and this appeal ensued.

New Water, which did not owe plaintiff a nondelegable duty because the building premises was commercial not residential in nature (cf. Rogers v Dorchester Assoc., 32 NY2d 553 [1973]; Camaj v E. 52nd Partners, 215 AD2d 150 [1995]), made a prima facie showing of entitlement to judgment as a matter of law on the ground that it neither created nor had notice of the alleged misleveling condition (see Gjonaj v Otis El. Co., 38 AD3d 384 [2007]; Santoni v Bertelsmann Prop., Inc., 21 AD3d 712 [2005]). In opposition, plaintiff, whose proof of New Water's purported notice of the alleged misleveling condition was speculative, failed to raise a triable issue (see Narvaez v New York City Hous. Auth., 62 AD3d 419 [2009]; see also Lapin v Atl. Realty Apt. Co., LLC, 48 AD3d 337 [2008]). The doctrine of res ipsa loquitur does not avail plaintiff against New Water since it ceded all responsibility for maintenance and repair of its elevators to Central (see Levine v City of New York, 67 AD3d 510 [2009]; see also Hodges v Royal Realty Corp., 42 AD3d 350 [2007]; cf. Singh v United Cerebral Palsy of New York City, ___AD3d___, 2010 NY Slip Op 01602 [Feb. 25, 2010]). Therefore, New Water's motion for [*3]summary judgment should have been granted.

Summary judgment dismissal of the complaint as against Central was also warranted. Central established prima facie that it was not negligent by showing that it was mechanically impossible for the accident to have occurred in the manner alleged by plaintiff, i.e., as a result of the elevator misleveling three to four inches (see Santoni v Bertelsmann Prop., Inc., 21 AD3d 712 [2005]; Williams v Port Auth. of New York & New Jersey, 247 AD2d 296 [1998]; see also Cortes v Cent. El., Inc., 45 AD3d 323 [2007]). Specifically, Central presented uncontradicted expert evidence that safety features of the elevator would have, among other things, prevented the elevator's doors from opening if the elevator misleveled by more than one inch.

In opposition, plaintiff failed to raise a triable issue. Plaintiff's expert did not address, let alone refute, Central's expert evidence that it was mechanically impossible for plaintiff's accident to have occurred in the manner alleged by plaintiff (see Braithwaite v Equit. Life Assur. Soc. of U.S., 232 AD2d 352 [1996]). Moreover, neither the deposition testimony of McCoy, a mechanic formerly employed by Central, nor the unsworn statement of Kolovic, who was operating the elevator at the time of the accident, is sufficient to raise a triable issue regarding Central's liability. Although plaintiff points to a snippet of McCoy's testimony in an effort to raise a triable issue regarding whether the accident as alleged by plaintiff was mechanically impossible, McCoy's testimony, viewed in its entirety and in context, does not suggest the existence of such a triable issue (see Brown v Muniz, 61 AD3d 526 [2009], lv denied 13 NY3d 715 [2010]; Mitchell v Route 21 Assoc., 233 AD2d 485 [1996]). Similarly, the isolated portion of the unsworn statement of Kolovic in which Kolovic stated that plaintiff "claimed that the elevator had stopped unevenly" is hearsay and insufficient to preclude summary judgment.

Central is also entitled to summary judgment dismissing the complaint on the alternative ground that it neither created nor had notice of the alleged misleveling condition, plaintiff having failed to submit sufficient evidence to raise a triable issue on this point (see Lapin, supra; Gjonaj, supra; see also Santoni, supra). Nor is a proper basis shown to impose liability on Central under the doctrine of res ipsa loquitur since, as outlined above, plaintiff's fall could have occurred in the absence of negligence (see Cortes, supra; Braithwaite, supra).

With respect to the second third-party action, defendant Paris demonstrated entitlement to summary judgment dismissal by establishing prima facie that it owed no duty of care to the plaintiff in the main action (see Ardolaj v Two Broadway Land Co., 276 AD2d 264, 265 [2000]) and, further, that it neither created nor had notice of the alleged misleveling condition. In opposition, second third-party plaintiff Central, which did not address in its appellate briefs its impleader claims against Paris, failed to raise a triable issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 19, 2010