Kolb v Beechwood Sedgwick, LLC
Annotate this CaseDecided on June 24, 2009
Supreme Court, New York County
Donald Kolb, Plaintiff(s),
against
Beechwood Sedgwick, LLC and Otis Elevator Co., Defendant(s).
21145-2006
James Newman, Esq.
Attorney for Plaintiff
2815 Waterbury Avenue
Bronx, NY 10461
James C. Clerkin, Esq.
Kral, Clerkin, Redmond, Ryan,
Perry & Girvan, LLP
Attorneys for Defendant
Beechwood Sedgwick, LLC
170 Broadway, Suite 500
New York, New York 10038
Diane R. Silvergleid, Esq.
Ahmuty, Demers & McManus, Esqs.
Attorneys for Defendant
Otis Elevator Company
200 I.U. Willets Road
Albertson, New York 11507
Edgar G. Walker, J.
Notice of Motion / OSC.......................................
Answering Affidavits...........................................
Reply Affidavits...................................................
Pleadings..............................................................
Stipulations...........................................................
Memoranda of Law...............................................
Other.....................................................................
Upon the foregoing papers:
Defendants' motions for summary judgment, pursuant to CPLR 3212, are both granted [*2]and plaintiff's cross-motion seeking to amend the complaint, pursuant to CPLR 3025 (b), is denied. Defendants argue that they were not negligent, that plaintiff's own conduct was the sole proximate cause of his injuries, that his conduct was not foreseeable, that based upon his voluntary conduct he assumed the risk, and that their own conduct was reasonable.
Plaintiff was employed by a subcontractor constructing a building for defendant Beechwood. The building had two elevators, one of which was not functioning on the day of the accident. Although for several days prior to the accident the elevator indicator light displayed "L" meaning the cab was on the lobby level, on the day of the accident plaintiff's supervisor informed the plaintiff that the elevator indicator lights no longer displayed "L" but rather "- -," indicating that the elevator was out of service. According to plaintiff's deposition testimony and his affidavit submitted in opposition, plaintiff and his supervisor wanted to inspect the elevator car of the broken elevator. Since the elevator door was electronically locked, plaintiff used the "drop key" provided to plaintiff's supervisor to open the elevator door. As plaintiff pried the door open he stepped forward while looking back towards his supervisor and fell down the shaft.
In his complaint and bill of particulars plaintiff alleges that (a) a dangerous condition existed and that the defendant knew or should have known such a condition existed, and (b) the defendants were negligent as they failed to warn the plaintiff that the elevator cab had been moved. In the proposed amended complaint plaintiff seeks to add various labor law causes of action but does not allege any new factual contentions.
In support of the motion, defendants submitted the deposition testimony of Michael Cohen, an elevator technician employed by defendant Otis. Mr. Cohen testified that he was working on the elevator at the time of the accident. Mr. Cohen also testified that he had electronically locked all of the elevator doors before he moved the cab. Plaintiff concedes that he knew that the elevator had been out of service prior to the day of his accident and that on the day of the accident he was aware that someone from Otis was on the job site.
In further support of the motion, defendants submitted plaintiff's deposition testimony.
Plaintiff testified as follows:
Q:As you started to open the door did you look into the doorway?
A:No.
Q:Did you ever look in the doorway?
A:No.
Q:Did you have the impression that there was a light on the other side of the door or
darkness or something else?
A:No, when I opened the door — the person said "you got it," I turned and I
said "yeah" and I took a step forward.
. . .
Q:As you slid the door
open, did you move your body any way in front of the doorway?
A:Yeah, I moved from left to right with the door. Like I said, I turned to respond to
what the person said.
Q:Did you get a chance to say anything?
A:I said "Yeah, I got it." or "Yeah" I don't know if I finished the whole sentence.
Q:As you were doing that, did you take a step in any direction?
A:Into the elevator.
[*3]
Q:What happened?
A:I fell.
Q:Did you look forward toward the elevator at any time before taking that step?
A:No.
The proposed amended complaint alleges a cause of action under Labor Law § 240(1). However, to come within the protection of section 240(1) the task that the plaintiff is performing must "entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured." Rocovich v Consolidated Edison Co., 78 NY2d 509. Here, based upon the pleadings and plaintiff's own testimony, there is no allegation that plaintiff's assigned tasks on the day of the accident entailed a significant elevation-related risk. In addition, plaintiff makes no allegation that appropriate safety devices were not made available. Assuming arguendo that the record alleges the elements of a claim under section 240(1), it is clear that the defendants have submitted sufficient proof to establish prima facie that plaintiff's own conduct was the sole proximate cause of his injuries. Blake v. Neighborhood Housing Services of New York City, Inc., 1 NY3d 280.
With regard to plaintiff's statutory and common law negligence causes of action, defendants have submitted sufficient proof to establish, prima facie, that they were not negligent as a matter of law. Defendants have successfully shifted the burden of proof to the plaintiff to establish the existence of a triable issue of fact. Alvarez v. Prospect Hospital, 68 NY2d 320.
In the affidavit submitted by the plaintiff in opposition to the motion, the court notes that plaintiff concedes that he was not looking where he was going. Plaintiff's counsel argues that a triable issue of fact exists based upon the elevator indicator light indicating that the elevator cab was in the lobby. However this argument is belied by the plaintiff's own deposition testimony. Plaintiff testified that at the time he fell, the elevator indicator lights displayed two dashes which his supervisor informed him meant that the elevator was out of service. Plaintiff also seeks to rely upon Title 1, Department of Buildings § 27-02, 1 RCNY § 27-02, which states that "in all buildings when an automatic elevator is being serviced by an elevator maintenance company and there is no other personnel available to remain in the elevator, caution sign tape shall be placed across the car door jamb." The court fails to appreciate the applicability of 1 RCNY § 27-02 to the facts herein. Clearly, this code provision only applies to instances where the elevator is malfunctioning with the doors in the open position. The code provides for caution tape only in the event that personnel are unavailable to remain in (emphasis added) the elevator. Assuming arguendo that Otis had complied with this Building Code provision and had stationed someone in the elevator, it is indisputable that plaintiff would have fallen down the shaft anyway and the failure to do so in no way contributed to the occurrence. Clearly, the cited code section was not intended to prevent the kind of accident which occurred here.
Plaintiff's own proof establishes that his fall was caused by inattentiveness to where he was stepping and that there is no factual basis from which an inference of negligence could be drawn against defendants. Morales v. Foodways, 186 AD2d 407; Martinez v. Trustees of Columbia University, 271 AD2d 223; Chafoulias v. 240 E. 55th Street Tenants Corp., 141 AD2d 207.
The clerk is directed to enter judgment in accordance herewith.
Dated : June 24,
2009______________________________________________________
Hon. Edgar G. Walker, J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
