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
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Index Number : 11681112009
DENIS P. MULLARKEY
MOTION 9EQ. NO.
SEQUENCE NUMBER : 001
. . . . . .
Uponthe f66golngTpapem, It I8 ordered that thlr motion I
decided in accordance
with accompanying memorandum decisfon.
APR 10 2012
COUrJlY CLERK'S OFFICE
2. CHECK AS APPR~PRIATE:..............
I. CHECK ONE:
3. CHECK IF APPgOPRIATE:
R G A S E QlSPOSEb
111 DO NOT POST
c SUBMIT ORDER
0FIDUCIARY APPOINTMENT 0SEFERkflCE
P 1ai n ti ff,
lndex No.: 11681 1/09
Submission Date: 1 1/9/20 I I
- againstDENlS 1â. MCJLLAKKEY, LLC,
and GOLDEN ELEVATOR CO., INC.,
DECTSTON AND ORDER
De fen dan t s .
Kenneth L. Falk, Esq.
724 B Heritage Hills
Somers, New York 1 OS89
I;or Dcrcndant Dcnis P. Mullnrltey,
GaIuion Lawrence &L Rosenfarb
100 Williain Street, 7ââ
New York, N Y 10038
I;or Dcfendanl Goldcn Elevator Co.,
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 (âAkterâ) 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 (âMullarkeyâ), the owner olâthe 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.
Defendantsâ motions are coiisolidated for purposes of their disposition.
APR 1 9 2012
COUNTY CLERKâS OFFICE
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 69tâStreet,
apartinelit GC,in Jamaica, Queens, a residciitial building owned by Mullarkey (the
âbuildingâ). The six-stoiy building has one elevator, which goes from the basement to
the sixth lloor. The elevator has two entrance doors, an outside âhoistwayâ 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 (âVargasâ),
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
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. Akterâs 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. Akterâs 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 (âCalderonâ), the building superintendent for Mullarkcy, testificd
at his deposition that he learned about Alcterâs 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
months prior to Alderâs 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 olâAkterâs 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
somconcâs 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 âgate switchâ located on top of
the door must make contact belâorc 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 â if it
made contact properly. Vargas also tcstiiied that, 0 1 July 3 1, 2009, the date of the
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 Goldenâs 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 âsmoke hole covers; light
guardsâ 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.
1Jiider thc doctrine of res ipsa loquitur, â[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 defendantâs relation to it.â 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). âThe rule siiiiply recognizes what we know from oiir
everyday experience: that soiiie accidents by their very nature would ordinarily not
happen without ncgligencc.â Dermatossiun v. New York City Tr. Auth., 67 N.Y.2d 219,
226 (1986); see Stntes v. Lourdes Hosp., 100 N.Y.2d 208, 21 I (2003); Knmhnt, 89
N.Y .2d at 494. âRes 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.â Dermaimsiun,67 N.Y.2d at 226 (citations omitted). âIn those cases where
âconflicting inferences iiiay be drawn, choice or inference must bc imadc by the jury.ââ
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: â( 1) the event must be of a kind which ordinarily does not occur in the
absence of sornconeâs 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.â 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
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, âwas neither an ordinary nor a natural
experience.â Weedm v. Armor El. Co., 97 A.D.2d 197, 205 (2d Tlepât 1983). Akterâs
injuries, therefore, Lâoccurredas a result of thc precisc kind of event that should not occur
if an elevator functions properly.â Allen v. Wuodis Mgt. Co., 86 A.D.2d 530, 53 1 ( I st
Depât 1982) (plaintiffs arm caught in elevator door, and elevator then descended from
ninth to first floor). By Vargasâ 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, âplaintiffâs tcstiniony to the effect that
a malfunction actually occurred, is sufficient to create a triable issire of fact.â Miller. v
SchindLer EL. Câorp., 308 A.D.2d 3 12, 3 13 (
Depât 2003); see Stewart v. World El. Co.,
84 A.D.3d 491,496 ( I s t Depât 201 1).
Golden, notably, has offered no explanation â¬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 (1â Depât 1998) (defendant offcrcd no cviderice to support inference of soine other
possible cause, such as manufacturing dcsign defect); Finocchio v Crest Hollow Club ul
Woodhury, Inc., 184 A.D.2d 491, 493 (2d Depât 1992) (same); Silherman v. Lazarowifz,
130 A.D.2d 736, 737 (2d Uepât 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 Depât 2010) (Fire Dept. inspector
determined that childâs 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
(âproof of the spccitic cause of the plaintifâiâs injury is unnrc~essary support an
inference of the defendantâs negligence in a 7 ~ s caseâ ) (emphasis in original).
I;urtlier, while courts have found, under some circumstances, that the voluntary
actions olâ 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 (âa,32 N.Y.2d 486,495496 ( I 973); Gralzam v. Wohl, 283 A.D.2d 26 1 (1 ââ 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 âas a lixed, niechanical or rigid rule.â 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 â
Depât 2002). Rather, thc requirement is met when Ihe cvidence provides âa rational basis
for concluding that the cause or the accident was probably such that the defendant would
be responsible for any negligciice connected with it.â Dermatossinn, 67 N .Y at 227
(internal quotation inarks and citations omitted); .yep Kambat, 89 N.Y.2d at 494-495. âIt
is not necessary for plaintiff to rule out all other possiblc causes, only to show that they
are less likely.â Pavon, 254 A.D.2d at 145; see Crawford v. City o f N e w Yurk, 53 A.D.3d
462, 464 (1âDepât 2008); DiRoma v. Mutual ufAm. Lye Inns. Co., 17 A.D.3d 119, 121 (lst
Depât 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 â Ilepât 1999).
Courts also have clarificd that exclusive control of the injury-causing
instrumentality refers to coiitrol of âthc spccillic mechanism that malfunctioned.â Puvnn,
254 A.D.2d at 146. That is, â[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.â Jd, (pivot hinge of door, not
door itself, was instrumentality in cxclusivc control of defendant); see Singh v United
Câwehral Palsy ofN. Y. City, Inc., 72 A.D.3d 272, 277-278 (lgtDepât 2010) (dcvice
controlling elevator door, out of puhlicâs access, was instrumentality at issue); /cxnottu v
Tishman Speyer Props., Inc., 46 A.D.3d 297, 299 (1ââ Depât 2007) (same). Therefore,
Lâ[~]ontr~)I intcrnal workings of an object satisfics thc âexclusive controlâ elemcnt.â
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
elevator and its parts, aiid provided for all repair aiid iiiaintenance to be perforincd by
Golden. Thus, Goldenâs 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 Depât 201 1); Gutierrez v. Broad Fin O r . , LLC, 84 A.D.3d 648, 649 (1ââ l k p â 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 Depâl 1996) (no exclusive control where no contract for
routine inspccti 011and maintenance),
Moreover, Goldenâs 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 partiesâ 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
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).
âFailure to make such showing reyuircs denial of the motion, regardlcss of the sufficiency
oftlie opposing papcrs.â Winegrad, 64 N.Y.2d al 853; ~ e Ayotfr v Uervaiso, 81 N.Y.2d
1062, 1063 (1993); AIvarez, 68 N.Y.2d at 324. Further, a moving defendantâs burdun on
a motion for summary judgment cannot be satisfied inercly by pointing out gaps in the
plaintiffs case. See ,Sabcrrlza v. ,Yulgu!o, 85 A.D.3d 436, 437-438 (1â Depât 201 1); Shuji
v. Motta, 73 A.D.3d 729, 730 (2d Depât 2010); Totten v. Cumherland Farms, Inc., 57
A.D.3d 653, 654 (2d Dcpât 2008); Peskin v. New York Ct Tr. Auth., 304 A.D.2d 634,
634 (2d Depât 2003).
Defendants also argue that the court shou.ld not consider thc affidavit of Akterâs
expcrt, Patrick Carrajaat, bccausc she did not disclosc him until after thc note of issuc was
filed. Although some courts have 1-c-jecteda partyâs 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 Depât 201 I ) , âCPLR 3 101 (d) (1) (i) docs not
that a party be precluded from proffering expert testimony nicrely because
, , ,
untimely], unless there is evidcnce olinteiitional or willful failure to disclose and a
showing of prejudice by the opposing party.â Hernandez- Vega v. Zwanger-Pesiri
Radiology Group, 39 A.D.3d 7 I O , 7 10-7 I 1 (2d Dcpât 2007) (internal quotation inarks and
citation omittcd); sec Brownc v. Smith, 65 A.13.3d 996, 997 (2d Dcpât 2009).
Nonethelcss, as defcndants correctly contend, Carrajatâs 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(lSâDept2012);
Elinsberg v. Memorial Shun-Kettering Cancer Ctr., 79 A.11.3d 628, 628 (1â Depât 201 0);
Purris v. Port q f N . Y. Auth., 47 A.D.3d 460, 46 I (1ââ Depât 2008).
Even without considering Carra-jat's affidavit, however, and even in the absence of
actual or constructive notice, Goldcn has â¬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
witness, plaintiff's testimony alone is sufficient to support application of res ipsa
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
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
In accordancc with thc foregoing, it is hereby
ORTIERED that defendant Denis P. Mullarkey, LLCâs 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.âs motion for summary
judgment dismissing thc complaint and all cross-claims against it is denied.
New York, New York
April 16, 20 12
COUNTY CLEFIKS OFFICE