Sanchez v Morgan El. Co., Ltd.
Annotate this CaseDecided on September 10, 2009
Supreme Court, Kings County
Maria Sanchez, as Administratrix of the Estate of ROGER ALONZO, and MARIA SANCHEZ, Individually, Plaintiff,
against
Morgan Elevator Company, Ltd. and HALL STREET COLD STORAGE WAREHOUSES, INC., Defendants.
19190/03
Plaintiffs were represented by Joseph Dugan, Esq. of Rosenbaum & Rosenbaum, P.C. Defendant Morgan Elevator Company, Ltd. was represented by Lawrence G. McDonnell, Esq. of Keller, O'Reilly & Watson, P.C.
Jack M. Battaglia, J.
On June 25, 2001, Roger Alonzo, Plaintiff's decedent, was working as an employee for defendant/third-party defendant Hall Street Cold Storage Warehouses, Inc., when he fell to his death in an open elevator shaft in the employer's facility on Hall Street in Brooklyn. The doors to the elevator shaft were open, but no elevator cab was there. The Verified Complaint sounds in negligence. With this motion, defendant/third-party plaintiff Morgan Elevator Company, Ltd. seeks summary dismissal pursuant to CPLR 3212, Plaintiff having filed her note of issue.
Plaintiff's Verified Bill of Particulars alleges that defendant Morgan was negligent in the "maintenance, repair, . . . and inspection of the elevator, in failing to properly correct the defects and malfunctions of said elevator, permitting the elevator to return to service until the door safety features disengaged [sic]; in failing to warn persons using said elevators of the dangerous and defective conditions consistent [sic] therein; . . . in keeping the elevator doors open; in [*2]disconnecting the electrical power to the elevator doors; in disconnecting safety devices." (Verified Bill of Particulars, ¶7.) Defendant Morgan is alleged to have "caused [these] dangerous conditions," or "knew or should have known that same existed and failed to take steps to correct same." (Id., ¶ 10.)
Morgan's motion rests on three contentions: "In the Absence of a Maintenance Contract, Plaintiff Must Prove Morgan Made an Improper Repair and the Improper Repair Was a Proximate Cause of the Accident" (Affirmation in Support at 10-13); "The Doctrine of Res Ispa Loquitor is Inapplicable to the Facts of this Case" (id. at 13); and "All Claims For Conscious Pain and Suffering Must be Dismissed" (id. at 14.) Central to Morgan's position are further contentions that "the accident was caused by the intentional by-passing, by employees of Hall Street, of safety features on the elevator"; that "Morgan Elevator was not under contract to maintain the elevator at issue or any of the elevators on the premises of Hall Street," and that "Morgan was only called to the premises by [Hall Street] on an as-needed' basis." (Id. at 10.)
In the lexicon of negligence, Morgan argues that it owed only a limited duty to Plaintiff's decedent, and that it fully discharged that duty. Morgan does not argue on this motion that the sole proximate cause of Mr. Alonzo's injury and death was his own negligent conduct or that of any other person for which Morgan is not responsible.
Morgan's motion is purportedly supported by numerous documents, including documents of the Department of Buildings of the City of New York and of the Occupational Safety and Health Administration ("OSHA") of the U.S. Department of Labor; the transcripts of depositions of three witnesses produced by Hall Street and three witnesses produced by Morgan; and a Notice to Admit Directed to Third-Party Defendant. As will appear, few of these documents constitute evidence admissible on Morgan's motion.
The Notice to Admit cannot add anything to Morgan's position on this motion, since it is not referred to in counsel's Affirmation in Support, and is not accompanied by any response from Hall Street. (See CPLR 3123.)
The Department of Buildings documents are two Notices of Violation and Hearing, one dated April 2, 2001, the other dated June 26, 2001; and an Elevator Route Sheet dated March 29, 2000. None of the documents is certified (see CPLR 4518 [c]), nor otherwise authenticated or rendered admissible as evidence (see, for example, CPLR 3122-a.) It appears, moreover, that one of the Notices, that dated June 26, 2001, was attached in error. Despite counsel's assertion that the subject elevator was numbered 3F3907 (Affirmation in Support at 2), the deposition transcripts indicate that the subject elevator was numbered 3F1370, which is the number found on the Notice dated April 2. A Notice dated June 25, bearing elevator number 3F1370, is attached to Plaintiff's Affirmation in Opposition, and this Notice is apparently the one referred to in the deposition transcripts.
The OSHA documents purport to have been received in response to a Freedom of [*3]Information Act request, but, they too, are not rendered admissible as evidence. Moreover, they were apparently sent to a Mr. Bryan Hutchinson at Claims Service Bureau, but there is no affidavit from Mr. Hutchinson or anyone else at Claims Service Bureau that would provide even minimal assurance of authenticity, and neither Mr. Hutchinson nor Claims Service Bureau is referred to in counsel's Affirmation in Support.
None of the six deposition transcripts submitted by Morgan is signed by the witness, nor is it shown that the transcript was submitted to the witness for review and signature pursuant to CPLR 3116 (a). The transcripts, therefore, are generally not admissible evidence available to Morgan to make its prima facie showing on this motion. (See Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2d Dept 2008].) As to the Morgan witnesses, however, by submitting the transcripts Morgan has adopted them as accurate, and they may be considered. (See Ashif v Won Ok Lee, 2008 NY Slip Op 9936, * 1 [2d Dept, Dec. 16, 2008].) As to the Hall Street witnesses, two of the three transcripts are signed by the reporter, and those transcripts could be used against Hall Street to the extent they contain admissions (see Morchik v Trinity School, 257 AD2d 534, 536 [1st Dept 1999]; Arnold v Schmittau, 18 Misc 3d 135 [A], 2008 NY Slip Op 50184 [U], * 2 [App Term, 2d Dept 2008]), but those admissions are ineffective against Plaintiff (see Morrisey v City of New York, 221 AD2d 607, 607 [2d Dept 1995]; Ellis v Allstate Ins. Co., 97 AD2d 970, 970 [4th Dept 1983].)
These evidentiary deficiencies have two important consequences for Morgan's motion. First, there is no admissible evidence to support Morgan's contention that "the accident was caused by the intentional by-passing, by employees of Hall Street, of safety features on the elevator" (Affirmation in Support at 10.) Since, however, Morgan does not argue that the by-passing of safety features was the sole proximate cause of Mr. Alonzo's injury and death, this lack of evidence is not fatal to the motion.
The other consequence is that there is no admissible evidence to support Morgan's contention that the claim for conscious pain and suffering must be dismissed, and on this issue the lack of evidence is fatal to the motion, since Morgan bears the initial burden of demonstrating that Mr. Alonzo did not suffer conscious pain and suffering (see Schild v Kingsley, 5 AD3d 103, 104 [1st Dept 2004].) The Court notes, moreover, that recovery is permitted for "preimpact terror" (see Boston v Dunham, 274 AD2d 708, 711 [3d Dept 2000]; Torelli v City of New York, 176 AD2d 119, 123-24 [1st Dept 1991]; Anderson v Rowe, 73 AD2d 1030, 1031 [4th Dept 1980]); and if such a recovery is permitted for the approximately five seconds before a motor vehicle collision (see Lang v Bouju, 245 AD2d 1000, 1001 [3d Dept 1997]), it cannot be said as a matter of law on this record that an award would not be permissible for a plunge down an elevator shaft.
The boundaries for liability (or not) for an elevator maintenance and repair company like defendant Morgan are reasonably clear, although, as might be expected, there is uncertain territory. "An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct . . . condition[s] [of] which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found." [*4](Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]; see also Talapin v One Madison Ave. Condominium, 63 AD3d 909, 910-11 [2d Dept 2009]; Miguel v 41-42 Owners Corp., 57 AD3d 488, 490 [2d Dept 2008]; Hall v Barist Elevator Co., 25 AD3d 584, 585 [2d Dept 2006].) On the other hand, "in the absence of a contract for routine or systematic maintenance," an independent repair contractor "has no duty" to install safety devices, or "to inspect or warn of any purported defects" "unrelated to the problem it was summoned to correct." (See Remekie v The 740 Corp., 52 AD3d 393, 394 [1st Dept 2008]; Jennings v 1704 Realty, L.L.C., 39 AD3d 392, 394 [1st Dept 2007]; Kleinberg v City of New York, 27 AD3d 317, 317 [1st Dept 2006]; Mc Murray v P.S. Elevator, 224 AD2d 668, 670 [2d Dept 1996].)
Even in the absence of a formal contract, an elevator maintenance and repair company may be found to have had a duty to inspect or to warn, at least, where there was an "ongoing relationship requiring [the company] to service the machine" (see Schuler v S & S Corrugated Paper Mach. Co., 38 AD3d 1345, 1346 [4th Dept 2007]; Dauernheim v Lendlease Cars, Inc., 238 AD2d 462, 463 [2d Dept 1997] ["ongoing business relationship"]), or where the company "did in fact undertake to inspect . . . [the] elevators in the building, . . . and charged a fee for its services" (see Alsaydi v GSL Enters., 238 AD2d 533, 534 [2d Dept 1997].) The key appears to be whether the elevator company had "exclusive control over the elevator's maintenance, service, and repair." (See Ramos v Noveau Industries, Inc., 29 AD3d 555, 556 [2d Dept 2006]; see also Massato v Sears Roebuck & Co., 272 AD2d 453, 453 [2d Dept 2000] ["assumed full responsibility to maintain, repair and inspect the escalator"].)
Moreover, "by undertaking [a] required annual elevator inspection[ ], [an elevator company] assume[s] a duty to passengers to exercise reasonable care to determine whether the elevator[ ] (which [is] potentially dangerous to users) require[s] any repairs or maintenance to avoid injury to the public, with any failure to exercise such care subjecting the inspection company to potential liability in negligence." (See Spooner v National El. Inspection Servs., 161 Misc 3d 73, 77 [Sup Ct, NY County 1994]; see also Sanzone v National El. Inspection Serv., 273 AD2d 94, 94 [1st Dept 2000]; Abato v Miller El. Serv. Co., 261 AD2d 873, 873-74 [4th Dept 1999]; Cassell v Babcock & Wilcox Co., 186 AD2d 1000, 1001 [4th Dept 1992].) Indeed, an undertaking to inspect an elevator in response to a specific complaint that the elevator was not working properly requires that the inspection be done "in a reasonably careful and prudent manner, and [the] failure to do so would inure to the benefit of a third party using the elevator." (See Wroblewski v Otis Elevator Co., 9 AD2d 294, 296-97 [3d Dept 1959] [cited with approval in Melodee Lane Lingerie Co., v American Dist. Tel. Co., 18 NY2d 57, 64 (1966)]; see also Hopps v Pengate Handling Sys. of NY, 307 AD2d 665, 667 [3d Dept 2003]; Wagner v Kenific, 161 AD2d 1092, 1093 [3d Dept 1990]; Galarza v Pacific Street Boiler Corp., 147 AD2d 527, 529 [2d Dept 1989].) The duty might include warning an employer of potential defects in a safety device caused by an employee's negligence. (See Hopps v Pengate Handling Sys. of NY, 307 AD2d at 667.)
At the least, and as defendant Morgan concedes, where an elevator maintenance and repair company performs maintenance or makes repairs, it will be liable to a person injured as a result of [*5]a defect created by the work or the work having been done negligently. (See Jennings v 1704 Realty, L.L.C., 39 AD3d 392, 394 [1st Dept 2007]; Kleinberg v City of New York, 27 AD3d at 317-18; Douglas v Kingston Income Partners 187, 2 AD3d 1079, 1081 [3d Dept 2003]; Mc Murray v P.S. Elevator, 224 AD2d at 670; see also Venuto v RCS Elec. Equip. Corp., 5 AD3d 672, 673 [2d Dept 2004]; Allen v Thompson Overhead Door Corp., 3 AD3d 462, 464-65 [2d Dept 2004]; Hopps v Pengate Handling Sys. of NY, 307 AD2d at 667; Olchovy v L.M.V. Leasing, 182 AD2d 745, 746 [2d Dept 1992].) Where the elevator company does not have exclusive control of the elevator, and "[i]t is at least as likely that [the] accident happened as a result of intentional conduct, not negligence," the doctrine of res ipsa loquitor is unavailable to establish the elevator company's negligent repair. (See Douglas v Kingston Income Partners 187, 2 AD3d at 1080-81; see also McMurray v P.S. Elevator, 224 AD2d at 669-70.)
As previously noted, defendant Morgan relies on the deposition testimony of its three witnesses: its President, John Morgan; a technician, Michael Trizulino; and a journeyman, Gustavo Barrera. Mr. Morgan's testimony covers the relationship between Morgan and Hall Street in general; Mr. Trizulino and Mr. Barrera testified as to work done by Morgan on the subject elevator to correct alleged Department of Buildings violations cited on April 2, 2001 or June 25, 2001, or both. Morgan's counsel objected, not necessarily inappropriately, to testimony by any of the witnesses to the content or meaning of the two Notices of Violation and Hearing; and none of the witnesses could testify from independent recollection as to any condition on the elevator on either date. Morgan also offers the Affidavit of licensed engineer Jon Halpern, who purports to offer expert opinion.
Mr. Morgan testified categorically that there was no contract between Morgan Elevator and Hall Street to maintain or service the elevators at Hall Street's cold storage facility; rather, Morgan would make repairs on an "as needed" basis, perhaps pursuant to a writing addressed to the particular project. Mr. Morgan provides little in the way of details as to transactions between Morgan Elevator and Hall Street as they might be relevant to determining whether there was an "ongoing relationship requiring [the company] to service the machine" (see Schuler v S & S Corrugated Paper Mach. Co., 38 AD3d at 1346), or whether the company "did in fact undertake to inspect . . . [the] elevators in the building, . . . and charged a fee for its services" (see Alsaydi v GSL Enters., 238 AD2d at 534.)
Morgan does not submit any of the "work tickets" that were marked as exhibits at the depositions, that were the subject of questioning of the witnesses, and that were provided to its expert, Jon Halpern. In contrast, Plaintiff submits in opposition numerous invoices and items of correspondence that document, according to counsel, "38 distinct repairs performed from a period encompassing December 2, 1999 to April 26, 2001, without inclusion of . . . [other] detailed services provided in 1996." (Affirmation in Opposition, ¶ 8, and Exhibit D.) Plaintiff's submissions are noted not to create a triable issue, but to demonstrate the conclusory character of Morgan's showing.
Although Mr. Morgan had no independent recollection one way or the other, his review of documents at his deposition suggested to him that Morgan Elevator had performed mandated annual inspections of Hall Street's elevators in 2000 or 2001, and any such inspection would have included inspection of the doors to "make sure the safeties are working." (Examination Before Trial of John Morgan, at 37.) The Affidavit of Jon Halpern makes no reference to any mandated inspection of [*6]Hall Street's elevators, and thus offers no opinion as to any resulting duty to inspect or duty to properly repair as it might relate to the occurrence on June 25, 2001 that caused Mr. Alonzo's death.
Mr. Halpern does offer the opinion "that all of the repairs done by Morgan on the small freight elevator' prior to June 25, 2001 were properly done," and that "none of the problems for which Morgan was summoned and none of the repairs which Morgan effectuated to the elevator at issue led to the elevator shaft way being open, without the car at the floor, on June 25, 2001." (Affidavit of Jon Halpern, ¶ 17.) Mr. Halpern states that, among other things, he reviewed the Department of Buildings and OSHA documents that are not in evidence, and "Morgan Elevator work tickets, including those work tickets marked as exhibits at the various depositions." (Id., ¶ 4.) Those work tickets are not attached to the Affidavit or to the deposition transcripts, and they are not otherwise submitted on this motion. They are, therefore, not evidence on which Mr. Halpern can rely in forming an opinion. (See Hambsch v New York City Tr. Auth., 63 NY2d 723, 725-26 [1984]; Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002].)
Mr. Halpern does not specifically address repairs that Morgan Elevator made to the interlocks in October 1999 or those made to the safety circuits in August 2000. (See Examination Before Trial of John Morgan, at 41-42, 55-56.) It may well be that the repairs made in 1999 and 2000 could not have been a factor in the occurrence on June 25, 2001. It may also be that an expert can look at a work ticket and conclude that the work was "properly done" (Affidavit of Jon Halpern, ¶ 17.) But much more is required to establish those propositions than appears in Mr. Halpern's Affidavit.
It should be apparent that the Court concludes that Morgan Elevator fails to make the requisite prima facie showing on this motion, and that the motion must be denied without reference to Plaintiff's opposition. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)
The Court is aware that, by concluding as it has that there is no admissible evidence to support Morgan's contentions that "the bypassing of elevator safeties" was the cause of the elevator malfunction that led to Mr Alonzo's death, and that "the bypassing had been done [by] employees of Hall Street" (Affirmation in Support, at 6-7), the Court avoids determining the nature and scope of Morgan's duty, if any, under those circumstances. The Court is not aware of any authority that resolves the question. For the present, the Court will only note that there is discrepancy in the deposition testimony of Mr. Trizulino (Examination Before Trial of Michael Trizulino, at 53) and the testimony of Mr. Morgan (Examination Before Trial of John Morgan, at 76-77) as to whether Morgan Elevator was aware, before the occurrence on June 25, 2001, of employee tampering with the safety devices on Hall Street's elevators; and that Mr. Morgan acknowledged that, under some circumstances at least, the company would have been required to take some action (id., at 74-76, 81-83.)
Morgan Elevator's motion is denied.
[*7]
September 10, 2009____________________
Jack M. Battaglia
Justice, Supreme Court
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