Ramirez v Rotavele El., Inc.
2012 NY Slip Op 31045(U)
April 16, 2012
Sup Ct, NY County
Docket Number: 115308/09
Judge: Saliann Scarpulla
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
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MOTIONDATE
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MOTION SEQ. NO.
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Dated:
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2. CHECK AS APPROPRIATE: ...........................
MOTION IS: 0GRANTED
0DENIED
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3. CHECK IF APPROPRIATE:
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r]SETTLE ORDER
DO NOT POST
~ALIANN
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NON-FINAL DISPOSITION
0GRANTED IN PART
0OTHER
SUBMIT ORDER
0FIDUCIARY APPOINTMENT
0REFERENCE
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Index No.: 115308/09
Submission Date: 1/18/20 12
P 1aintiff,
- againstDECISION AND ORDER
ROTAVELE ELEVATOR, INC.,
and 447-453 West 18 LP,
Defendants.
X
_______ll--------r_____l_______l________----~---
For Plaintiff:
Douglas & London, P.C.
1 1 I John Street, 14âhFloor
New York, NY 10038
For Defendant Rotavele Elevator, Tnc.:
Gottlieb Siege1& Schwartz, LLP
180 East I62nd Street, Suite 1 D
Bronx, NY 1045 1
For Defendant 447-453 West I 8 LP:
Traub, Liebeman, Strauss &
Shrewsberry, LLP
Mid-Westchester Executive Park
Seven Skyline Drive
Hawthorne, N.Y. 10532
Papers considered in review of this motion and cross-motion for summary judgment:
Notice of Motion . . . . . . . . . . . . 1
Aff in Support. . . . . . . . . . . . . 2
Aff i Opp. . . . . . . . . . . . . . . . , 3
n
Notice of Cross-Motion. . . . . . . .4
Aff in Opp . . . . . . . . . . . . . . . -5
Aff in Partial Opp . . . . . . . . . . .6
Reply Aff, . . . . . . . . . . . . . . . . 7
Reply Aff . . . . . . . . . . . . . . . . , 8
Reply Aff . . . . . . . . . . . . . . . . . .9
FILED
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NEW YORK
COUNTY CLERKS OFFICE
HON. SALIANN SCARPULLA, J.:
In this negligence action, defendant 447-453 West 18 LP (â447-453â) moves for
summary judgment dismissing the complaint of plaintiff Fernando Ramirezâs (âRamirezâ)
and all cross-claims asserted against it judgment over and against defendant Rotavele
Elevator, Inc. (âRotaveleâ) for contractual indemnity, and judgment over and against
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Rotavele for common law indemnification. Rotavele cross-moves for summary judgment
dismissing all claims and cross-claims against it.
Ramirez sues for personal injuries he allegedly sustained on January 20, 2009,
when Ramirez was employed as an elevator operator at the Chelsea Modern, located at
447 West 1gth Street, New York, New York (the âpremisesâ). Ramirez alleges that the
elevator he was operating went into a âfree fall,â dropping four stories and then abruptly
stopping.
447-453, owner of the premises, hired non-party DCBE to act as construction
manager during the construction of a building at the premises. DCBE then contracted
with Rotavele to install and maintain the elevators at the premises. Rotavele and 447-453
also entered into a âBasic Elevator Service Agreement,â by which Rotavele agreed to
âfurnish elevator maintenance service on the elevators.â Pursuant to the elevator service
agreement, Rotavele agreed to, among other things, âinspect, lubricate and adjustâ the
various parts and components of the elevator and to âperiodically examine all safety
devices and equalize tension on hoisting cables when necessary.ââ The elevator service
agreement also provides that â[Rotavele] does not assume any management or control
over any part of the equipment except during periods of work when our employees
actually take direct charge of the equipment, and such management and control over the
elevator equipment remains exclusively with the owner.â
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Under the terms of the elevator service agreement, 447-453 âagree[d] to maintain
the hatchway, pit and machine room in clean condition and to keep the elevator
equipment from being exposed to the elements or to physical damage[,]. . . to shut down
the equipment immediately upon the manifestations or appearance of any irregularity in
operation of the elevator equipment; to notify [Rotavele] at once, and keep the equipment
shut down until completion of the repairs.â Pursuant to the elevator service agreement,
Rotavele performed routine maintenance on the elevators and addressed elevator service
issues.
The building at the premises, which was still undergoing construction at the time
of Rarnirezâs accidents, had two elevators, Elevator 1 and Elevator 2. Ramirez was hired
to operate Elevator 2, the elevator designated for tenants only, and to make sure that the
construction workers used Elevator 1. Ramirez was responsible for riding Elevator 2
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from 8:OO a.m. to 4:00p.m., bringing tenants to and from their desired floors, while
preventing construction workers from riding Elevator 2. He held this position for
approximately four months prior to the incident.
Ramirez testified at his deposition that on January 20,2009 he rode Elevator 2
approximately five to six times prior to the accident. According to Ramirez, there was
nothing unusual about Elevator 2 and it operated normally, but that on one trip it was not
level when he arrived at the lobby, but was a few inches off the ground. Ramirez testified
that he then yelled to the doorman about the mis-leveling, and that the doorman told him
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to wait and see if it happened again before they contacted Rotavde. Rarnirez further
testified that after dropping a passenger at the 1 Ith leaving hiin alone in Elevator 2,
floor,
he pressed the button to return to the lobby, at which time the lights in Elevator 2 went
out and Elevator 2 went into âfree fall,â abruptly stopping at the 7thfloor, and causing him
to fall on his right knee and hit his head on the hand rail. Rarnirez added that he then rode
Elevator 2 to the lobby, and on this ride Elevator 2 operated normally. Upon exiting
Elevator 2, Ramirez told the doorman and Marko Mirdita (âMirditaâ), the building
superintendent that Elevator 2 had âdropped.â
Mirdita testified at his deposition that as soon as Ramirez told hiin about Elevator
2 dropping, he took Elevator 2 out of service, and called Rotavele requesting that a
technician come to service Elevator 2. In response, Jeff Darraugh (âDarraughâ), a
Rotavele elevator mechanic, arrived at the premises with his ,assistant John McArdle
(âMcArdleâ) in under an hour to inspect Elevator 2. Darraugh âtestified at his deposition
that he conducted an examination of Elevator 2, and checked the elevator computer
system which would show any problems with the Elevator. Darraugh testified that he
found no evidence of the car dropping in the error log. He also testified that he physically
checked the car and found no evidence that the Elevator car had dropped.
In support of its motion for summary judgment, 447-453 argues that it could not
have created a defect in Elevator 2, because it is undisputed that it did not install or
perform any work on the elevators. 447-453 further argues that its elevator
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respons
.ies werelimited to cleaning their interiors and entrance ways, which Mirdita
carried out twice a day. 447-453 further notes that pursuant to the terms of the elevator
service agreement, Rotavele was responsible for all elevator maintenance and repair.
Rotavele cross-moves for summary judgment, adopting 447-453âs argument that
Ramirez has raised no triable issue of fact that Rotavele had any prior notice of the
alleged defective condition, and no evidence exists that the defective condition was
caused by any negligent act or omission by Rotavele. Rotavele further argues that
Ramirez cannot make a prima facie showing of Rotaveleâs negligence or that any
defective condition existed which could have caused the incident. Rotavele also asserts
that any problems which did occur with the elevator were caused by construction dust and
debris from 447-453âs construction contractors, and it was 447-453âs obligation to clean
such dust and debris.
In opposition to the motions for summary udgment, Ramirez argues that there
exist a number of issues of material fact, including (1) whether the defendants had actual
andor constructive notice of the elevator defect; (2) whether the work previously
performed by Rotavele on the 7thfloor elevator door release assemblies on July 14,2008
and September 23, 2008 was negligent; (3) whether 447-453 failed to take appropriate
action to protect the elevator equipment from potential damage from dust and debris
based on its knowledge of the ongoing construction in the building; (4) whether the
elevator was on âIndependent Serviceâ or âAutomaticâ at the time of Rarnirezâs accident;
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and (5) whether Rainirez had made complaints prior to his accident regarding theoperational problems with Elevator 2. Ramirez also argues that both 447-453 and
Rotavele had notice of a defective condition, that res ipsa loquitur is applicable to both
defendants, and that 447-453 is liable for Ramirezâs injuries pursuant to provisions of the
New York City Building Code and New York State Multiple Dwelling Law.
Discussion
A movant seeking summary judgment must make aprima facie showing of
entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any
material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853
(1 985). Once a showing has been made, the burden shifts to the opposing party, who
must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Husp.,
68 N.Y.2d 320,324 (1986); Zuckerman v. City ofNew York, 49 N.Y.2d 557 (â¬980).
âA property owner has a nondelegable duty to passengers to maintain its buildingâs
elevator in a reasonably safe manner and may be liable for elevator malfunctions or
defects causing injury to a plaintiff about which it has constructive or actual notice, or
where, despite having an exclusive maintenance and repair contract with an elevator
company, it fails to notify the elevator company about a known defect.â Isaac v. 1515
Macombs, LLC, 84 A.D.3d 457, 458 (1st Depât 201 1) (internal citations omitted).
Similarly, â[aln elevator company which agrees to maintain an elevator in safe operating
condition may be liable to a passenger for failure to correct conditions of which it has
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knowledge or failure to use reasonable care to discover and correct a condition which it
ought to have found.â Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559 (1973).
Here, 447-453 submit Darraughâs deposition testimony to show that Elevator 2
was not in a defective condition on the date of Ramirezâs accident. Darraugh testified
that he arrived at the premises shortly after the alleged incident, and performed diagnostic
tests of Elevator 2 and the error log system. He testified that he used a hand-held unit,
which reported that there were no errors. Darraugh testified that after he observed the
elevator running up and down without any passengers, he next rode on top of the elevator
for fifteen (1 5) or twenty (20) minutes, âlooking for any reason why an elevator would
allegedly drop.â After riding up and down on top of the elevator many times, Darraugh
âcouldnât find any evidence of what we were told, and [he] deemed the elevator safe to be
in service and [he] put it back in service.â
Darraugh further testified that after conducting these diagnostic reviews â[tlhere
was no evidence of any problem with the elevator at all.â Darraugh concluded that the
Elevator had not dropped a floor, let alone four as Ramirez claims, because â[tlhere was
no evidence in the error log, and then I physically checked the car and found no evidence
that the car ever dropped or ever will.â In addition, Darraugh testified that had there been
a free fall froin the eleventh to the seventh floor, an error message on the log would have
âabsolutelyâ appeared.
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Moreover, Darraugh testified that for a âroped elevator,â such as Elevator 2
â[tlhere are protocols and safeties in place to make [dropping] nearly impossible.â
Darraugh explained that Elevator 2 has a âgovernor that governs the speed of the
elevatorâ which limits Elevator 2 to no more than twenty-five percent (25%) past its rate
of speed. Darraugh added that there are also brakes on Elevator 2 which prevent it from
dropping. Darraugh testified that the protocols and safety features make a free fall of
Elevator 2 impossible unless the cables had been cut, or the 2,500 pound capacity was
exceed by 1,000 pounds. Ramirez testified he was in Elevator 2 by himself, and has not
alleged that either the cables were cut or the weight limit was exceeded.
Rotavele also submitted an affidavit by Darraugh, wherein he affirmed that his
âexamination of elevator number two on January 20, 2009 found no evidence that the car
experienced any type of fall or drop whatsoever. . . . [Blased on the design of the subject
elevator and the conditions found when I observed it, I can attest to a reasonable degree
of mechanical certainty that it was physically and mechanically impossible for the subject
elevator to drop or free fall as claimed by plaintiff herein.â
447-453 also submitted an expert affidavit of William M. Kane, Ph.D. (âKaneâ), a
Senior Engineer at Exponent Failure Analysis Associates, an engineering f r .Kane
im
examined Elevator 2, and reviewed the deposition testimony in this matter, as well as the
elevator maintenance records and the New York City Department of Building elevator
records. Kane agreed that the âresults of Mr. Darraughâs inspections immediately
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following Plaintiffs alleged incident indicate that themotion control mechanisms of the
elevator did not fail or imalfunction in any way.â Kane further stated that based on the
elevatorâs mechanical mechanisms for controlling both âmaximum speed and range of
stopping distances of the car,â even had the elevator experienced a free fall from a full
stop, it would fall approximately 11 inches before reaching the maximum allowed speed,
at which time the safeties would engage to slow the elevator down. Kane concluded that
âeven assuming that the motion control mechanisms had failed or malfunctioned,
Plaintiffs allegations that the elevator engaged in a âfree fallâ for four stories before
coming to an abrupt halt is inconsistent with the capabilities o f â Elevator 2.
Through these submissions, 447-453 and Rotavele have met there initial burden
of showing that Elevator 2 was not in a defective condition on the date of the accident.
See Cortes v, Central El., Inc., 45 A.D.3d 323 (1st.Depât 2007) (â[d]efendantâs
submissions, including . . . an affidavit from an elevator consultant who inspected the
elevator and concluded thatâ the accident could not have occurred as plaintiff alleged
âdemonstrated that there was no evidence of a defective conditionâ); Hardy v. Lojan
Realty Corp., 303 A.D.2d 457 (2d Depât 2003) (defendants âdemonstrated with affidavits
of an elevator mechanic and an expert elevator consultant that the allegations [of free fall]
were physically and mechanically impossibleâ).
447-453 and Rotavele also make a prima facie showing that they did not have
constructive or actual notice of the alleged defective condition of Elevator 2 which would
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cause it to âdropâ or âfree fallâ as alleged by Ramirez. Defendants submit the Rotavele
service report, which reflects a number of other complaints made about the elevators in
the building. There are no reports, however, of free falls or dropping elevators. âThere
was no evidence that the prior incidents identified in the [report] âwere of a similar nature
to the accident giving rise to this lawsuitâ or âwere caused by the same or similar
contributing factors.ââ Martin v. Kone, Inc., 2012 NY Slip Op 2564, 1-2 (lstDepât April
5,2012) (quoting Chunhye Kang-Kim v. City ofNew York, 29 A.D.3d 57,60-61 (lSt
Depât
2006)). See also Gjonaj v. Otis EZevator Co., 38 A.D.3d 384, 385 (lstDepât2007) (âIn
order to establish notice based on prior accidents, plaintiff was required to produce
evidence that the prior accidents were similar in nature to the accident alleged her and
caused by the same or similar contributing factorsâ).
The burden now shifts to Ramirez to âshow the existence of a bona fide issue
raised by evidentiary facts. Reliance upon mere conclusions, expressions of hope or
unsubstantiated allegations is insufficient.â Santoni v. BerteZsrnann Proper@, Inc., 2 1
A.D.3d 712, 714 (1ââ Depât 2005) (internal citations and quotations omitted).
In opposition, Rainirez submits the expert affidavit of Patrick A. Carrajat
(âCarrajatâ), an elevator consultant. Carrajat reviewed the depositions, pleadings, motion
papers and attached exhibits, and also performed an online search of records of the New
York City Department of Buildings, Elevator Division relative to the building and
elevator 2 . Carrajat did not inspect Elevator 2.
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Carrajat noted that his analysis focused on Rotaveleâs service report and Mirditaâs
deposition testimony. Based on this, he concludes that Rotavele failed to conduct
sufficient monthly maintenance, that there was a problem with the elevator door release
assembly on the 7thfloor, and that this problem caused Rarnirez to experience free fall.
This conclusion lacks any factual support in the record, and Carrajat provides no
evidentiary or factual support for his conclusion. Carrajat never inspected Elevator 2, and
he fails to demonstrate any confirmation for his theory that there was a problem with the
7* floor door release on the date of the incident, or that it could have caused a free fall.
Accordingly, Carrajatâs affidavit does not create an issue offact. Santoni, 2 1
A.D.3d 7 at 715 (âIndeed, â[;If the expertâs conclusions lack foundation in the record and
are speculative, the affidavit will not raise questions of fact sufficient to preclude
summary judgmentââ) (quoting Samuel v. Aroneau, 270 A.D.2d 474,475 (2d Depât
2000)). See also Kleinberg v. Ct ofNew York, 27 A.D.3d 3 17,3 18(1st Depât 2006)
iy
(expert affidavit âdoes not establish grounds for liability because his opinions are vague,
conclusory and factually unsupported. . . . He merely assumed the ultimate fact of
causation. . . .â) (internal citations omitted).
However, Ramirez establishes a triable issue of fact under the doctrine of res ipsa
loquitur. Ramirez alleged that the elevator dropped and stopped abruptly, causing hiin to
fall on his knee and bang his head. âCertainly, this is the type of event that does not
ordinarily happen in the absence of negligence, and plaintiffl] is entitled to invoke the
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doctrine as against defendants based on plaintiffâs testimony concerning elevator
malfunction.â Stewart v. World Elevator Co., Inc., 84 A.D.3d 491, 495 (1âDepât 201 1).
See also Kleinberg v. Ct ofNew York, 61 A.D.3d 436,438 (lStDepât 2009) (âThe
iy
doctrine of res ipsa loquitur may apply to this case, inasmuch as a free-falling elevator
does not ordinarily occur in the absence of negligenceâ).
âThe doctrine of res ipsa loquitur, which may be invoked against a defendant that
exclusively maintained an allegedly malfunctioning elevator allows the factfinder to infer
negligence from the mere happening of an event where the plaintiff presents evidence (1)
that the occurrence would not ordinarily occur in the absence of negligence, ( 2 ) that the
injury was caused by an agent or instrumentality within the exclusive control of
defendant, and (3) that no act or negligence on the plaintiffs part contributed to the
happening of the event.â? Miller v. Schindler Elevator Corp., 308 A.D.2d 3 12, 3 13 (1 st
Depât 2003) (internal citatâion omitted).
Here, the Court need not determine whether 447-453 or Rotovele maintained
exclusive control of the elevator. âThe Court has applied the doctrine to cases involving
elevator malfunction, and , . . the fact that more than one entity may have been in control
of the elevator does not preclude application of the doctrine.â Kleinberg, 6 1 A.D.3d at
438.
While 447-453 submit evidence showing that Elevator 2 could not have gone into
a free fall on the date of Ramirezâs accident, Ramirezâs testimony regarding the fall âmust
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t
be treated as true on defendant[sâ] motion for summary judgment. Although defendant[&]
presented competent
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. evidence that the elevator was not malfunctioning immediately
after the incident, plaintiffs testimony to the effect that a malfunction actually occurred is
sufficient to create a triable issue of fact.ââ Miller, 308 A.D.2d at 3 13. In addition, there
is no evidence to indicate that Ramirez contributed to the accident.
Lastly, 447-453âs motion for judgment against Rotavele for contractual and
common law indemnification is premature until there is a determination as to whether
Ramirezâs injuries were caused by any negligence by 447-453. Gilbert v. Kingsbrook
Jewish Center, 4 A.D.3d 392, 393 (2d Depât 2004); Medina v. New York Elevator Co.,
250 A.D.2d 656 (2d Depât 1998).
In accordance with the foregoing, it is hereby
ORDERED that defendant 447-453 West 18 LPâs motion for summary judgement
..
dismissing plaintiff Fernando Ramirezâs complaint and all cross-claims against it is
denied; and it is -further
ORDERED that defendant 447-453 West 18 LPâs motion for summary judgement
for judgment over and against defendant Rotovele Elevator, Inc. for contractual and
common law indemnity is denied as premature; and it is further
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ORDERED that defendant Rotavele Elevator, Inc.âs cross-rnotion for summary
judgment dismissing plaintiff Fernando Ramirezâ complaint and all cross-claims against it
is denied.
This constitutes the decision and order of the Court.
Dated:
New York, New York
April 16, 2012
ENTER:
FILED
1m
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NEW YORK
COUNTY CLERKâS OFFICE
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