Maholland v Schindler El. Corp.

[*1] Maholland v Schindler El. Corp. 2009 NY Slip Op 50142(U) [22 Misc 3d 1115(A)] Decided on January 20, 2009 Supreme Court, New York County Madden, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2009
Supreme Court, New York County

Diana Maholland, Plaintiff,

against

Schindler Elevator Corp. and CIRCUIT CITY STORES, INC., Defendants.



116583/06

Joan A. Madden, J.

In this action for damages for personal injuries, defendant Schindler Elevator Corp. ("Schindler") moves and defendant Circuit City Stores, Inc. ("Circuit City") cross-moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint. Plaintiff opposes the motion and cross-motion.

Plaintiff alleges she was injured on November 16, 2004, when she riding the down escalator inside the Circuit City retail store on East 86th Street in Manhattan, and the escalator shook and suddenly stopped, causing her to fall. It is not disputed that defendant Circuit City had an agreement with defendant Schindler for maintenance of the escalator.

In support of the motion and cross-motion for summary judgment, defendants submit attorneys affirmations, the pleadings, documents, various discovery orders, requests and responses, plaintiff's deposition testimony, and the deposition testimony of the witness for Circuit City, Rene Francis, and the witness for Schindler, Charles Novak. Defendants seek summary judgment the ground that the record fails to establish notice of any prior, similar incidents. Defendants also assert that the doctrine of res ipsa loquitur is not applicable to facts of this case.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medical Center, 64 NY2d 851, 852 (1985). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).

On defendant's motion for summary judgment dismissing the complaint, the court must view the evidence in the light most favorable to plaintiff. See Golden v. Coinmach Industries, Inc., 273 AD2d 4, 5 (1st Dept 2000). A defendant seeking summary judgment based on lack of notice is required to "make a prima facie showing affirmatively establishing the absence of notice as a matter of law." Carrillo v. PM Realty Group, 16 AD3d 611, 612 (2nd Dept 2005); accord Fox v. Kamal Corp., 271 AD2d 485 (2nd Dept 2000). In other words, defendant has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had [*2]actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. See Totten v. Cumberland Farms, Inc., ___ AD3d ___, 2008 WL 5171849 (2nd Dept 2008); Cox v. Huntinton Quadrangle No. 1 Co, 35 AD3d 523 (2nd Dept 2006). "The burden of establishing lack of notice cannot be satisfied merely by pointing out gaps in the plaintiff's case." Id at 524.

Here, defendants fail to submit sufficient evidentiary proof to satisfy their initial burden to make a prima facie showing affirmatively establishing the absence of notice as matter of law. While defendants assert that there were no prior complaints or similar incidents involving the subject escalator, the evidence they rely on, i.e. the maintenance and repair records, and the deposition testimony of the witnesses for Circuit City and Schindler, Rene Francis and Charles Novak, respectively, is inconclusive at best.

First, as to the deposition testimony, Rene Francis, testified that as the operations manager for the Circuit City store, she was the "main person" on behalf of Circuit City responsible for reporting to Schindler any problems with the escalators, and that she would "basically, call in a claim to Schindler, letting them know what the issue was." When asked whether prior to November 16, 2004, she personally called Schindler for any reason, she responded, "most likely, yes," but could not recall the purpose of such calls or the number of times she had done so. Francis explained that Schindler made monthly maintenance calls for the escalators, and if there was a problem, "we would call to say this is the problem that needs to be repaired."

When Francis was asked, "do you recall prior to November 16, 2004, there being any problems with the escalators," she answered, "I don't recall." When asked if she ever saw Schindler make a repair to the escalators prior to November 16, 2004, she answered "yes," and explained that"the plate at the top of the escalator was slightly off." Francis, however, could not remember exactly when or which of the two escalators was involved, or even if it was actually before the date of plaintiff's accident. When asked "did you ever see any of the escalators shake at all," she responded "no." When asked if prior to November 16, 2004, "did anyone ever get injured on the escalators," she answered, "not that I recall." She acknowledged, however, that if someone were injured at the store, the incident would have to reported to her, and that part of her duties was to follow up and investigate such incidents.

When asked if the escalators had ever "stopped out of nowhere at any time," Francis responded "not that I can recall." When asked if she was "aware of any complaints made with regard to any of the escalators," Francis initially responded that she did not understand the question and eventually said, "I am not sure." Counsel then rephrased the question, and asked "prior to November 16, 2004, did anyone make any complaints about the escalators?" Francis's appeared not to understand the question, and counsel asked, "Are your personally aware of any problems with the escalators or any complaint made with the escalators that was made prior to November 16, 2004?" After a recess, Francis answered, "I am not sure," and explained that if an issue came up and one of her sales managers handled it, she would not have actually known about it. Counsel then asked if "prior to November 16, 2004, did any of the other managers at the store advise you there had been some type of issue with the escalators," and she responded, "I can't recall."

Francis also testified that she maintained a record of calls to Schindler, including the date [*3]of and reason for the call, which she kept in a "personal file" at the store. She explained that this "personal file" was her own "log" of things she did and issues she addressed at the store, and that when she relocated to another Circuit City store, her personal file remained at the 86th Street store. When asked "who has your personal file now," she answered, "no one I would assume."Francis also testified that after plaintiff's accident, she completed a "Risk Management Customer Injury" form which she placed in her personal file. Francis explained that the information she recorded on the form included plaintiff's name, phone number, her statement as to what happened, and the name of a witness. Circuit City submits an affidavit that a search was undertaken for Francis's personal file and "it was determined that no such records exist."[FN1]

With respect to the day of the accident, Francis testified that the store's security guard informed her that a customer "fell" on the escalator and was injured. Francis explained that she went over to the customer, who said she "was going up the escalator, it stopped and she fell." When asked if the customer said "how quickly" the escalator stopped and "did it stop suddenly," Francis responded "suddenly." When asked "did she tell you that the escalator shaked [sic] in any way," Francis answered, "not that I can recall." When asked "did the woman tell you how she fell, in what direction," "did the woman tell you on what portion of the escalator she was on when she started to fall," and "did the woman specifically say she was on the up escalator when she fell," Francis responded each time, "not that I can recall." When asked about visible signs of injury such as bleeding or bruising, Francis stated that the customer "had a scratch," but could not remember if it was on her arm or leg. Francis testified that she offered the customer medical assistance and to call an ambulance, but she said "she did not need it and she was visiting." Francis said that she then took the customer's statement, and that she and another employee "took pictures of where she was injured and just basically let her leave."

When asked "prior to you learning about the incident, had you been notified there were any problems with the escalator," Francis answered, "no, not that I can recall." Francis testified that when she arrived at the scene, the escalators were both stopped, and that after the accident, someone from Circuit City called Schindler, but she could not recall if she made the call. She also testified that Schindler responded and "came out to do whatever inspection on the escalator was necessary," but could not recall if Schindler came on the day of the accident. When asked "is it fair to say that when they [Schindler] did come, some type of invoice was generated by Schindler," Francis responded "yes," but she wasn't sure if the invoice was placed in her personal file. When asked if "is it fair to say following the incident, Circuit City closed the escalator until Schindler arrived to look at the escalator," she answered "yes," but wasn't "sure" what, if anything, Schindler did to the escalators following the incident. The attorney for Schindler then questioned Francis if she had "a specific recollection of anyone from Circuit City calling about this incident" and a "specific recollection of them responding to any calls about this incident," and she answered "no" to both questions.

Charles Novak, an elevator/escalator mechanic employed by Schindler at the time of the [*4]accident (he is no longer employed by Schindler), testified that he would be called to the Circuit City store only when the escalator was "shut-down," but he could not recall if he ever performed preventive maintenance or repair work on the escalator. Novak testified that when the store first opened (he was not sure of the year), he went there "approximately five to seven times within maybe a six-month period."He explained that he "didn't make repairs" but was "answering calls" to see why the escalator was shut down, and would "try to reset it and see what the problem was." He also explained that a shut down could be caused in "many ways," such as someone dropping change in the steps which would cause a "comb to trip," someone sitting on a handrail which would cause the handrail to stop, or someone dropping water in the escalator. He testified that the escalator has "twenty something" safety devices, and that the tripping of any one device would cause a shut down. He also testified that if "someone kicked a skirt swish [sic]," the store personnel could try restarting the escalator by turning a key, but if a safety device tripped, the store could not restart the escalator on its own. He further testified that shut downs were recorded in a computer in the escalator, which retained information as to the last 16 shut downs.

Defendants further rely on Schindler's service call work reports for the Circuit City store, which Schindler produced to the one-year period prior to the accident. Novak was questioned about one work report dated May 22, 2004, indicating that he responded to a call from the store for a problem with a handrail. He explained that the handrail needed a repair and as a safety procedure, he shut off the power so the escalator could not be started again. When asked if Schindler repaired the handrail, he responded, "I don't recall." Novak was also questioned about seven additional work reports for service calls by other Schindler employees to the Circuit City store on June 8, 2004 (install handrail), June 23, 2004 (down escalator making strange noise), August 2, 2004 (down escalator will not work), August 4, 2004 (down escalator won't go down, only works as an up escalator), August 5, 2004 (replaced handrail drive chain), September 27, 2004 (performed handrail repair), October 10, 2004 (down escalator, handrail not running, steps are running).[FN2] [*5]

The record also includes an incident report prepared by Circuit City's insurance company. Francis testified that she spoke to the insurance company on the telephone and provided the information contained in the report. The report states that the incident occurred on November 16, 2004 at 12:15 p.m. and identifies "Diana Maholland" as a "customer." Under "injury description," the report states "Escalator- multiple exterior multiple injuries." The "incident" is described as follows: "The customer states while riding up the escalator, the escalator stopped. The customer states when the escalator stop [sic], it jerked her body. The customer sustained multiple injuries." The report also lists a witness, "John Fisher" with a home telephone number. Francis testified that this witness told her that the escalator "stopped all of sudden," but when she was asked "did he say he saw the woman fall," she answered, "not that I can recall."

During discovery, Schindler was ordered to produced records pertaining to the down escalator for the one-year period prior to and including the date of the accident, and the two-week period following the accident. While Schindler provided documents for the one-year period prior to the accident, it prepared an affidavit that a search did not reveal any information as to calls or complaints from Circuit City from November 16, 2004 through November 30, 2004, or any records as to maintenance or repairs during the same period.[FN3] [*6]

Contrary to defendants' assertions, the foregoing testimony and documentary evidence does not affirmatively establish the absence of notice as a matter of law.

Defendants mischaracterize the substance of Francis's testimony. The fact that Francis could "not recall" any prior problems with the escalator, does not show that such problems did not occur. Rather, Francis's response "I don't recall," on its face, implies merely that she did not remember whether or not there were prior problems, incidents or injuries involving the escalator. When asked if the escalators had ever "stopped out of nowhere at any time," Francis again responded "not that I can recall." Also, her testimony that she did not "see" the escalator shake, simply means that she did not observe any shaking, which does not establish that the escalator did not shake.

Francis's testimony, therefore, has little probative value as to the issue of notice, as, at best, she could not remember or "recall" whether or not there were any issues, complaints, problems, repairs or injuries involving the escalator prior to the date of plaintiff's accident. Francis remembered only a single incident in which the plate on one of the escalators was repaired, but she could not recall when or which escalator.

Novak's testimony is likewise insufficient to establish the lack of notice. Defendants point to Novak's testimony describing the general safety features of the escalator, i.e. that the escalator is equipped with "twenty-something" safety devices, that the activation of any one device can cause the escalator to shut down, and that a shut down could be caused in "many ways," such as someone dropping change in the steps, sitting on a handrail or dropping water in the escalator. While such testimony may be material to issues relating to the cause of the accident and the applicability of res ipsa loquitur, it is not relevant to the issue of notice based on prior similar complaints or incidents.

Notably, Novak specifically testified that he was not the regular maintenance person for the Circuit City store, and that he only responded to calls when the escalator was shut down. The work reports produced by Schindler show that for the one-year period prior to the accident, Schindler performed maintenance or repairs at the Circuit City store on 20 separate occasions, and Novak is listed as the "technician" on just one of those reports. Defendants have not produced an affidavit or any testimony from Edward Nemeth, the technician named on 18 of the work reports, who appears to have regularly maintained and repaired the escalators during that period.

Significantly, Schindler's work reports demonstrate that from December 16, 2003 through October 10, 2004, Circuit City consistently reported a number of problems with the operation of the down escalator, which is the escalator at issue in this case. While none of the reports indicates a specific problem of the down escalator shaking and suddenly stopping, the notations on the reports as to the "problem reported" and the "work description" are somewhat cryptic and technical. Also, several work reports do not even indicate which escalator was involved. As [*7]noted in the affidavit of plaintiff's expert, the "work report's descriptions of the work performed were vague, and it was sometimes unclear exactly what work was done to the escalator on any given date."According to plaintiff's expert, Schindler's October 10, 2004 work report

states that the problem reported was "Handrail not running, steps are running." The description of work performed by the mechanic was "hr shaft bad shutdown." The handrail was not operating, and the cause was a bad handrail shaft. The mechanic left the escalator shut down for repairs. The work report dated November 8, 2004 is for preventive maintenance. There are no work reports showing that the handrail shaft was repaired or replaced. If the problem with the handrail shaft was not corrected prior to the accident on November 16, 2004, it could have caused the escalator to shut down, causing plaintiff Diana Maholland's accident. In addition, there are several work reports prior to the accident with problems to the handrails and handrail drives of this escalator.

Additionally, while Schindler asserts that it did not perform any repairs or maintenance work at the Circuit City store on the day of the accident or during the subsequent two-week period, as evidenced by the absence of any work records, Rene Francis testified that the escalators were both shut down on the day of the accident, someone from the store called Schindler and the escalators remained shut down until Schindler "came out to do whatever inspection on the escalator was necessary." Schindler's position is also inconsistent with Novak's testimony that if a security device were triggered and a shut off occurred, the store on its own would be unable to restart the escalators, and Schindler would have to be called.

Based on the foregoing, the court is unable to conclude that the record affirmatively establishes the absence of notice as a matter of law, and therefore, defendants are not entitled to summary judgment dismissing the complaint on that ground.

Defendants, however, correctly assert that the doctrine of res ipsa loquitur is not applicable to the facts of this case, since plaintiff has not established that the accident was caused by an instrumentality within the escalator, such as an operating mechanism or safety device, that was in defendants' exclusive control.

"The doctrine of res ipsa loquitur represents an application of the ordinary rules pertaining to circumstantial evidence in negligence cases stemming from accidents having particular characteristics. When the doctrine is invoked, an inference of negligence may be drawn solely from the happening of the accident." Dermatossian v. New York City Transit Authority, 67 NY2d 219, 226 (1986). Submission of a case on the theory of res ipsa loquitur requires plaintiff to establish three elements: 1) the accident is of a kind that ordinarily does not occur in the absence of negligence; 2) the accident must be caused by an agency or instrumentality within defendants' exclusive control; and 3) the accident was not due to any voluntary action or contribution on plaintiff's part. See Ebanks v. New York City Transit Authority, 70 NY2d 621, 623 (1987).

The requirement of exclusive control "is not an absolutely rigid concept, but is subordinate to its general purpose, that of indicating that it was probably the defendant's negligence which cause the accident in question." Pavon v. Rudin, 254 AD2d 143, 145 (1st Dept 1998) (citations omitted). "It is not necessary for plaintiff to rule out all other possible causes, only to show that they are less likely." Id. For example, where as here, the accident involves an [*8]item "exposed to significant public traffic," courts have applied res ipsa loquitur "where the specific mechanism that malfunctioned was not handled by the general public." Id at 146.

Plaintiff fails to establish the exclusive control element necessary for the application of the res ipsa loquitur doctrine. Plaintiff merely asserts that "the escalator was within the defendants' exclusive control inside defendant, Circuit City's retail store," without identifying any specific mechanism within the escalator that malfunctioned and could not have been handled by the general public. Id.

Thus, since the escalators were located in the entrance to the Circuit City store and the use of the down escalator was necessary to gain access to the store located in the basement level of the building, the escalator was subject to extensive public contact on a daily basis and was not in defendants' exclusive control. See Ebanks v. New York City Transit Authority, supra at 623; Parris v. Port of New York Authority, 47 AD3d 460, 461 (1st Dept 2008); Braithwaite v. Equitable Life Assurance Society of U.S., 232 AD2d 352, 354 (2nd Dept 1996); Sepe v. Toys "R" Us, 17 Misc 3d 1108 (A) (Sup Ct, Richmond Co, 2007). For that reason, plaintiff will not be permitted, at trial, to rely on the doctrine of res ipsa loquitur to establish negligence.

Accordingly, it is hereby

ORDERED that defendants' motion and cross-motion for summary judgment are denied.

DATED: January 20, 2009ENTER:

/s

________________________

J.S.C.. Footnotes

Footnote 1:The affidavit further states that a search was undertaken for video surveillance of the escalators on November 16, 2004, and that "no recordings from that time exist as all video surveillance is automatically erased approximately 45 days after it is recorded."

Footnote 2:The Schindler work reports for the one-year period prior to the accident are as follows:

November 21, 2003 (maintenance on escalator; technician Edward Nemeth; 5 hours)

December 16, 2003 (down escalator still not working, "ft never showed up yesterday immed srv eta; safe brake replace cover key "sw"; technician Edward Nemeth; 1.5 hours)

January 13, 2004 (inspected both escalators; technician Edward Nemeth; 4 hours); February 17, 2004 (routine visual examination of equipment, perform preventive maintenance; technician Edward Nemeth; 2.5 hours)

March 30, 2004 (down escalator side plate near top has been lifted up and needs to be fixed; repair loose decking; technician Edward Nemeth; 1 hour)

April 8, 2004 (routine visual examination of equipment, perform preventive maintenance; technician Edward Nemeth; 2 hours)

May 22, 2004 ("den esc rubber coming off the handrail split in 2"; entry boot off and handrail ripped in half, remove power, need handrail; technician Charles Novak; 1 hour) May 26, 2004 (routine visual examination of equipment, perform preventive maintenance; technician Edward Nemeth; 2 hours)

June 8, 2004 (install handrail; technician Edward Nemeth; 8 hours)

June 16, 2004 (down escalator making loud vibrating sound; loose skirt panel; technician Edward Nemeth; 1 hour)

June 23, 2004 (down escalator is making a strange noise; pulled back handrail drive chain; technician Edward Nemeth; 2 hours)

June 28, 2004 (routine visual examination of equipment, perform preventive maintenance; technician Edward Nemeth; 1.5 hours)

August 2, 2004 (down escalator will not work "ETA"; need handrail chain; technician Edward Nemeth; 1 hour)

August 4, 2004 (down escalator won't go down only words as an up escalator; handrail chain bad; technician Edward Nemeth; 1 hour)

August 5, 2004 (replaced handrail drive chain; technician Edward Nemeth; 3.5 hours)

August 18, 2004 (performed preventive maintenance, including routine visual inspection of equipment; technician Edward Nemeth; 1.5 hours)

August 25, 2005 (performed preventive maintenance, including routine visual inspection of equipment; technician Edward Nemeth; 2.5 hours)

September 27, 2004 (handrail repair; technician Edward Nemeth; 2 hours)

October 10, 2004 (down escalator handrail not running, steps are running; handrail shaft bad shutdown; technician Edward Nemeth; 1 hour)

November 8, 2004 (performed preventive maintenance, including routine visual inspection of equipment; technician Edward Beekman; 2 hours).

Footnote 3:The affidavit is by Claudia Cisternino, who states that she is responsible for handling all of Schindler's "liability items," including requests for documents, completing forms, and scheduling depositions and trials. She states that her "present location is at 620 12th Avenue, New York, New York, which had been the offices of Millar Elevator Industries for years. In December of 2005, Schindler Elevator consolidated all its New York City locations to this site. At or about this time, extensive renovation was conducted of theses premises." She does not explicitly explain why she is including such information, and if it accounts for the absence of certain records.