Akter v Denis P. Mullarkey, LLC

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Akter v Denis P. Mullarkey, LLC 2012 NY Slip Op 31048(U) April 16, 2012 Sup Ct, NY County Docket Number: 116811/09 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON411912012 [* 1] JusUce Index Number : 11681112009 INDEX NQ. AKTER, SONIA vs. DENIS P. MULLARKEY MOTjQ#'DATE * MOTION 9EQ. NO. I SEQUENCE NUMBER : 001 B SUMMARY JUDGMENT ir motion toHor I __ _. . . . . . . ' - Uponthe f66golngTpapem, It I8 ordered that thlr motion I s motion decided in accordance with accompanying memorandum decisfon. FILED R Pp APR 10 2012 NEW YORK COUrJlY CLERK'S OFFICE P R I . I ..................................................................... 2. CHECK AS APPR~PRIATE:.............. MOTION IS: I. CHECK ONE: 3. CHECK IF APPgOPRIATE: ................................................ I I IJ R G A S E QlSPOSEb @$RANTED 0DENIED SSfTLE ORDER 111 DO NOT POST NOH-FINAL DlSFO$l~IPN QRANTE~ PART IN 0QTHER c SUBMIT ORDER ] 0FIDUCIARY APPOINTMENT 0SEFERkflCE I [* 2] P 1ai n ti ff, lndex No.: 11681 1/09 Submission Date: 1 1/9/20 I I - againstDENlS 1 . MCJLLAKKEY, LLC, and GOLDEN ELEVATOR CO., INC., DECTSTON AND ORDER De fen dan t s . ___________________________________________----_------__----_-~-X For PIainliK: Kenneth L. Falk, Esq. 724 B Heritage Hills Somers, New York 1 OS89 I;or Dcrcndant Dcnis P. Mullnrltey, LLC.: GaIuion Lawrence &L Rosenfarb 100 Williain Street, 7 Floor New York, N Y 10038 I;or Dcfendanl Goldcn Elevator Co., Inc.: Cariiacho Mauro Mulholland, LLP 350 Fifth Aveniie, Suite 5 101 New York, NY 1 0 1 I8 HON. SALJANN SCARPULJA, J.: In this negligence action, plaintiff Sonia Alcter ( Akter ) sues lo recover for injuries she allegedly sustained on July 3 1, 2009, when an elevator door closed on her left hand as she attempted to exit the elevalor in the lobby of her building. Ry separate motions, defendant Dcnis P. Mullarkey, T,r,C ( Mullarkey ), the owner ol the building, and defendant Goldcn Elcvator Co., Inc. olden"), en"), an elevator servicc coiiipany, move for summary judgment dismissing the complaint, on the grounds that they had no notice of any alleged elevator defect, and that the doctrine ofres ipsa loquitur does not apply. Defendants motions are coiisolidated for purposes of their disposition. FILED APR 1 9 2012 1 NEW YORK COUNTY CLERK S OFFICE [* 3] At the outset, Akter concedes that she cannot cstablish that either defendant had prior notice of a defective elevator condition. At oral argument beforc me all parties agreed that the sole remaining issue is the application of res ipsa loquitur. At all rclcvant times, Aktcr resided with her husband at 89-2 I 1 69t Street, apartinelit GC,in Jamaica, Queens, a residciitial building owned by Mullarkey (the building ). The six-stoiy building has one elevator, which goes from the basement to the sixth lloor. The elevator has two entrance doors, an outside hoistway door located on each floor, which swings open, and the elevator cab door, which slides open. Pursuant to a contract with Mullarkcy, Golden was responsible for inaintaiiiing and servicing the elevator equipment and repairing defective parts. 3 ose Vargas ( Vargas ), prcsidcnt o l Golden, testiiied at his deposition that his employees perforined maintenance on the elevator on a nioi~tlilybasis. Tfprol:,leins with the elevator occurrcd bctwccn the montlily visits, the building superiiitendetit called Golden and an employec was sent to the building. Cioldcii also conducted an aiiiiual inspection, which is mandated by thc New York City Department of Buildings. Akter testilied at her deposition that on the day ofthe accident, die entercd thc elevator on the sixth floor, and it traveled down to the first floor in the usual nianner, without making any stops. When the elevator reached the lkst floor, the cab door opened half way and then stopped. Akter reached out her left hand to push opeii the outcr door, but the cab door rapidly began to close, strilcing and trapping her hand. According to Akter, it happcncd so quickly that she could not gct her hand out bcforc thc door struck 2 [* 4] her left wrist, and bruised her lclt thumb. She pressed all the buttons in tlic elevator, iiiciudiiig the alarm and emergency stop buttons, but nothiiig happencd, and the door did not open. Akter s hand was stuck in the door fix about 20 minutes, and before she could free it, the elevator inoved to the fifth floor, where a tenant had called it, aiid the cab door then opened. Akter s hand was bleeding, and the tencantwho had called the elevator called 9 1 I ibr her, and an ambulance took her to a hospital emergency rooin. Akter testified that she has lived iii the building for inore than four years, and has never seen a similar problem with tlic elevator door. Akter also testifkd that other tenants had told her that there had previously been similar occurrences, biit shc could not identifrjr who told her that, or when. finwin Calderon ( Calderon ), the building superintendent for Mullarkcy, testificd at his deposition that he learned about Alcter s accident on the date that it happened, when he was leaving the building and saw an ambulance. After he spoke to Aktcr and her husband, Calderoii brought the clcvator down to the baseinent of thc building, shut it down, and called Golden. Vargas then came to the building and checked lhe elevator, and informcd Calderon that everything was worlcing. Clalderoii testified that his only responsibility with respect to the elevator is to check that it is clean, although he also checks thc alarm button on the elevator every wcck. The elevator has both an alarm button, which should sound when it is pulled, and an emergency stop button, which should open tlic elevator door when it is pulled. Calderoii further testiflcd that, in the six 3 [* 5] months prior to Alder s accident, he received no coinplaints from tenants about the elevator, knew of no tenants who had problems with the door, and hc personally expcricnccd no problems with the elevator door. Vargas testified that, on the date ol Akter s accident, Calderon called him, and he went to the building to check the elevator. Vargas checked the doors on each floor olthe building, and checked the cab door, by pressing the floor buttons and pushing the hoistway door on each floor. Vargas found that the elevator door closed and opcncd properly, thus he did not take the elevator out ofscrvicc. IIc also conducted a prcssure gauge check of the cab door, which showed that the door speed was normal. Vargas explained that the cab door closcs after the hoistway door closcs and a h o r button is pressed. According to Vargas, if tlic outcr door is pulled open, the cab door will reopen, but otherwise, once the cab door starts to close, it does not slop, even if somconc s hand, or body, is in the doorway, bccawe the particular type of elevator in the building had no sensor or other iiicchanism l o makc the door retract. He also testified that if thc cab door did riot M l y closc, because, lor example, a hand was caught in the door, the elevator could not niove to a different floor, because a gate switch located on top of the door must make contact bel orc the elcvator can proceed, and the switch does not cngagc if the door is open more than about one-quarter of an inch. Vargas testified that the gate switch was not checked during the inoiitlily visits, but was checked annually, by putting thc car between floors and using a L L j u ~ ~ p e r if it to scc 4 [* 6] made contact properly. Vargas also tcstiiied that, 0 1 July 3 1, 2009, the date of the 1 accident, he checked the gate switch, thc intcrlock, the leveling, the door speed, and the iiiachine room, and found that everything was normal and in working order. In an affidavit subiiiitted in support of Golden s motion, Vargas also attests that Golden was not aware olany cab door malfunctions prior to July 3 1, 2009, and did not discover any such malfunctions during inspections prior to July 3 I , 2009. The records do show that, following an annual inspection of the elevator conducted on June 1S, 2009, thc Department of Buildings rcported that the results d-the inspection were unsatisfactory, noting, in particular, that smoke hole covers; light guards were unsatisfactory. Vargas testified that the codes on the rcport indicate that there was a problem with a plate on the floor of tlic machine room, which had nothing to do with the elevator itself or thc cab door. Discussion 1Jiider thc doctrine of res ipsa loquitur, [w]here the actual or spcciGc cause of an accident is unknown, ... a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant s relation to it. Kumhnt v. St. Franci,~ Hosp., 89 N.Y.2d 489, 494 (1997) (citations omitted); see Ahhott v Puge Airways, /nc , 23 N.Y.2d 502, 5 10 (1969). The rule siiiiply recognizes what we know from oiir everyday experience: that soiiie accidents by their very nature would ordinarily not happen without ncgligencc. Dermatossiun v. New York City Tr. Auth., 67 N.Y.2d 219, 5 [* 7] 226 (1986); see Stntes v. Lourdes Hosp., 100 N.Y.2d 208, 21 I (2003); Knmhnt, 89 N.Y .2d at 494. Res ipsa loquitur does not crcatc a presumption in favor o l the plaintiff but merely permits the inlerence of negligence lo be drawn from the circumstance of the occurrence . . . and thc jury may - but is not required to - draw the permissible infcrence. Dermaimsiun,67 N.Y.2d at 226 (citations omitted). In those cases where conflicting inferences iiiay be drawn, choice or inference must bc imadc by the jury. Karnhnl, 89 N.Y.2d at 495, quoting George Follis, Jnc. v. City qfNew York, 287 N.Y. 108, I18 (1941). To rely on the theory ofres ipsa loquitur, a plaintiff must establish thc lollowing tlirec eleiiients: ( 1) the event must be of a kind which ordinarily does not occur in the absence of sorncone s ncgligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part o l the plaintiff. Dermatossian,67 N.Y.2d at 226 (internal quotation marks and citation omitted); ser Mnrejon v. Rais Constr. Co., 7 N.Y.3d 203, 209 (2006); Corcoran v Bcinner Super Mkt., h c , 19 N.Y.2d 425,430 (1967), mud on remittitur 2 I N.Y.2d 793 ( I 968). Here, defendants argue that Akter cannot satisfy the three conditions for the application ofrcs ipsa loquitur. Although they do not argue that Akter contributcd to the accident in any way, they argue that Akter has not demonstrated that the accident was one [* 8] that would not ordinarily occur in the absence of negligence, or that defendants had exclusive control over the elevator. As to the first clement, the erratic behavior of the elcvator cab door, and the movement of the elevator with the cab door opcn, was neither an ordinary nor a natural experience. Weedm v. Armor El. Co., 97 A.D.2d 197, 205 (2d Tlep t 1983). Akter s injuries, therefore, L occurredas a result of thc precisc kind of event that should not occur if an elevator functions properly. Allen v. Wuodis Mgt. Co., 86 A.D.2d 530, 53 1 ( I st Dep t 1982) (plaintiffs arm caught in elevator door, and elevator then descended from ninth to first floor). By Vargas own testimony, the elevator cab door did not havc a retracting mechanism, but the gatc switch mcchanism should have prevented the elevator from inovjng if the cab door was partially open. Although Vargas testified that hc had no notice of a prior defective condition, and his inspection of the elevator following the accidcnt revealed nothing wrong with the elevator, plaintiff s tcstiniony to the effect that a malfunction actually occurred, is sufficient to create a triable issire of fact. Miller. v SchindLer EL. C orp., 308 A.D.2d 3 12, 3 13 ( Dep t 2003); see Stewart v. World El. Co., 84 A.D.3d 491,496 ( I s t Dep t 201 1). Golden, notably, has offered no explanation ¬or the elevator mialhnction, and has produced no evidence to cstablish 8s a matter of law that the accident was one that would ordinarily occur even in the absence of negligence. See Puvon v. Rudin, 254 A.D.2d 143, 146 (1 Dep t 1998) (defendant offcrcd no cviderice to support inference of soine other 7 [* 9] possible cause, such as manufacturing dcsign defect); Finocchio v Crest Hollow Club ul Woodhury, Inc., 184 A.D.2d 491, 493 (2d Dep t 1992) (same); Silherman v. Lazarowifz, 130 A.D.2d 736, 737 (2d Uep t 1987) (citation omittcd) (unexplaincd fall of glass shelves requircd defendants to come forward with an cxplanation as to its cause); compare (?linger v. Ardifi Realty Corp., 77 A.D.3d 880, 881 (2d Dep t 2010) (Fire Dept. inspector determined that child s fool, cauglit in elevator door, was so small that door could close enough for door and gate switch to make contact); see also Ahhofl, 23 N.Y.2d at 5 13 ( proof of the spccitic cause of the plaintif i s injury is unnrc~essary support an to sa inference of the defendant s negligence in a 7 ~ s case ) (emphasis in original). I;urtlier, while courts have found, under some circumstances, that the voluntary actions ol an elevator passenger struck by a closing elevator door could have affected thc happening of the accident, see e.g. Feblot v. New York Times ( a,32 N.Y.2d 486,495496 ( I 973); Gralzam v. Wohl, 283 A.D.2d 26 1 (1 Dept 200 I), licre there is no evidence that any act by Akter contributed to the elevator malfunction. With respect to the exclusive control requiremcnt, courts generally do not apply this requiremcnt as a lixed, niechanical or rigid rule. J)ermato,csiun,67 N.Y.2d at 227; see Feblot, 32 N.Y.2d at 496; Mejin v. New York City Tr.. Aufh , 291 A.Tl.2d 225, 227 ( I Dep t 2002). Rather, thc requirement is met when Ihe cvidence provides a rational basis for concluding that the cause or the accident was probably such that the defendant would .2d be responsible for any negligciice connected with it. Dermatossinn, 67 N .Y at 227 8 [* 10] (internal quotation inarks and citations omitted); .yep Kambat, 89 N.Y.2d at 494-495. It is not necessary for plaintiff to rule out all other possiblc causes, only to show that they are less likely. Pavon, 254 A.D.2d at 145; see Crawford v. City o f N e w Yurk, 53 A.D.3d 462, 464 (1 Dep t 2008); DiRoma v. Mutual ufAm. Lye Inns. Co., 17 A.D.3d 119, 121 (lst Dep t 2005); Mejiu, 29 1 A.D.2d at 227; Rounirec v. Manhuttun & Bronx Surface Tr Operuling Auilz., 26 I A.D.2d 324, 327 ( I Ilep t 1999). Courts also have clarificd that exclusive control of the injury-causing instrumentality refers to coiitrol of thc spccillic mechanism that malfunctioned. Puvnn, 254 A.D.2d at 146. That is, [tlhe appropriate target of inquiry is whether the broken component itsellwas generally handled by the public, not whcthcr the public uscd the larger object to which the defective piece was attached. Jd, (pivot hinge of door, not door itself, was instrumentality in cxclusivc control of defendant); see Singh v United C wehral Palsy ofN. Y. City, Inc., 72 A.D.3d 272, 277-278 (lgtDep t 2010) (dcvice controlling elevator door, out of puhlic s access, was instrumentality at issue); /cxnottu v Tishman Speyer Props., Inc., 46 A.D.3d 297, 299 (1 Dep t 2007) (same). Therefore, L [~]ontr~)I intcrnal workings of an object satisfics thc exclusive control elemcnt. oi thc Crawford, 53 A.D.3d at 465. In this case, the mechanism regulating the elevator door were within thc cxclusive control of Golden, as shown by its servicc contract wilh Mullarkey. The contract required Golden to periodically inspect and perform routine maintenance and repairs on the 9 1 [* 11] elevator and its parts, aiid provided for all repair aiid iiiaintenance to be perforincd by Golden. Thus, Golden s control of the servicc and inaintenancc of the elevator satisfies the exclusive control element. See Devito v. Centennial El. Indus , Inc., 90 A.D.3d 595, 596 (2d Dep t 201 1); Gutierrez v. Broad Fin O r . , LLC, 84 A.D.3d 648, 649 (1 l k p l 201 1); Stewart, 84 A.11.3d at 496; Weeden, 97 A.D.2d at 207; CJ McMurruy v. P.S. El.# Inc., 224 A.D.2d 668, 669 (2d Dep l 1996) (no exclusive control where no contract for routine inspccti 011and maintenance), Moreover, Golden s argument that it is entitled to sumnary judginent bccause Rlcter has failed to prove that the elements ofres ipsa loquitur h a w been satisfied, misconstrues thc parties burdens on a sul-niiiaryjudgment motion. Whilc A kter retains the ultimate biirden of proving negligence, see Weeden, 97 A.D.2d at 204, to prevail on a motion for suininary judgment, the movant must make a prima h c i c showing 01 its cntitleinent to Judginent as a rnattcr of law, by submitting evidentiary prool in admissible form sufikient to establish the absence of any inalerial issues of fact. See AZvnrez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Winegrad 17. NEW York Univ. Meid Ctr., 64 N.Y.2d 85 1 , 853 (1 985); Zuckermun v Cily o New Yo&, 49 N.Y.2d 557, 562 ( 1 980). f Failure to make such showing reyuircs denial of the motion, regardlcss of the sufficiency oftlie opposing papcrs. Winegrad, 64 N.Y.2d al 853; ~ e Ayotfr v Uervaiso, 81 N.Y.2d c 1062, 1063 (1993); AIvarez, 68 N.Y.2d at 324. Further, a moving defendant s burdun on a motion for summary judgment cannot be satisfied inercly by pointing out gaps in the [* 12] plaintiffs case. See ,Sabcrrlza v. ,Yulgu!o, 85 A.D.3d 436, 437-438 (1 Dep t 201 1); Shuji v. Motta, 73 A.D.3d 729, 730 (2d Dep t 2010); Totten v. Cumherland Farms, Inc., 57 iy A.D.3d 653, 654 (2d Dcp t 2008); Peskin v. New York Ct Tr. Auth., 304 A.D.2d 634, 634 (2d Dep t 2003). Defendants also argue that the court shou.ld not consider thc affidavit of Akter s expcrt, Patrick Carrajaat, bccausc she did not disclosc him until after thc note of issuc was filed. Although some courts have 1-c-jecteda party s cxpcrt affidavit whcn it was not subinittcd until its opposition to a summary judgment motion, sec e.g. Kopelqfjv. Arctic Cat, Inc., 84 A.D.3d 890 (2d Dep t 201 I ) , CPLR 3 101 (d) (1) (i) docs not that a party be precluded from proffering expert testimony nicrely because , , , ... mandatc [it is untimely], unless there is evidcnce olinteiitional or willful failure to disclose and a showing of prejudice by the opposing party. Hernandez- Vega v. Zwanger-Pesiri Radiology Group, 39 A.D.3d 7 I O , 7 10-7 I 1 (2d Dcp t 2007) (internal quotation inarks and citation omittcd); sec Brownc v. Smith, 65 A.13.3d 996, 997 (2d Dcp t 2009). Nonethelcss, as defcndants correctly contend, Carrajat s affidavit if filled with speculation, and lie prcsents conclusions without any factual basis. Thus, whether Carrajaat was timely disclosed or not, the affidavit is without probative valuc. See Martin v. Kone, Inc.,2012 WL 1123746, * l , 2 0 1 2 N Y AppDivLEXTS2493, *2(lS Dept2012); Elinsberg v. Memorial Shun-Kettering Cancer Ctr., 79 A.11.3d 628, 628 (1 Dep t 201 0); Purris v. Port q f N . Y. Auth., 47 A.D.3d 460, 46 I (1 Dep t 2008). 11 [* 13] Even without considering Carra-jat's affidavit, however, and even in the absence of actual or constructive notice, Goldcn has ¬ailed to eliiniiiate triable issues of fact as to the applicability of the doctrine of res ipsa loquitur claim. See Fiermonti v. Otis El. c'o., 2012 WL 1109423, "1, 2012 N Y App Div I,I:XlS 2423, "3 (2d Dept 2012); Gutievrez, 84 A.D.3d at 649; Tyndale v. St Francis Husp., 65 A.D.3d 1133, 1133 (2d Tkp't 2009); Miller, 308 A.D.2d at 3 13; see ulso Stewart, 84 A.D.3d at 495 (even ifdei'cndant made prima facie showing, plaintiffs testimony raised triable issues of [act); Williams v. Swi,s,sotefNew Yurk, Inc., I 52 A.D.2d 457,458 ( 1 Dep't 1989) (even without expert 't I witness, plaintiff's testimony alone is sufficient to support application of res ipsa loquitur). In contrast, Miillarkey has dcmonstrated that it did not have exclusive possession of'tlie elevator door and its mechanisms. While Mullarkey retained ownership of the elevator, it had no role in inspecting, inaintainiiig or repairing the elevator. As Calderon tcstified, without disputc, his only responsibility was to cnsure that thc elevator was clean, and, while he checked the emergency and alarm buttons 011 a regular basis, whenever there was a problem wit11 the elevator, he shut it down and contacted Golden. By the t e r m of the elevator service contract, Golden ceded all responsibility ibr maintenance and repair ofthe elevator equipment and parts to Golden. Thus, tlie res ipsa claim does not survive as against Mullarkey. See Hedges v. Ro,yd Reulty C'orp., 42 A.lI.3d 350, 352 (lSt Dep't 2007). 12 [* 14] In accordancc with thc foregoing, it is hereby ORTIERED that defendant Denis P. Mullarkey, LLC s motion for surnniary judgment dismissing thc complaint is granted, the complaint and all cross-claims arc dismissed as against it, thc action is severed as against defendant Denis P. Mullarltey, LLC and t l x Clerk of thc Coui-t is directed to enter judgment dismissing thc complaint as against it, and thc action shall continue as to the remaining defendant; and it is flurthcr OKDEKED that defendant Golden Elevator Co., Tnc. s motion for summary judgment dismissing thc complaint and all cross-claims against it is denied. Dated: New York, New York April 16, 20 12 FILED NEW YBRK COUNTY CLEFIKS OFFICE 13

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