Ruiz-Hernandez v TPE NWI Gen.
2012 NY Slip Op 31059(U)
April 12, 2012
Supreme Court, New York County
Docket Number: 117068/07
Judge: Debra A. James
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.
SCANNED ON412012012
[* 1]
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT:
DEBRA A. JAMES
PART 59
Justice
Index No.:
Plaintiff,
-v-
117068/07
Motion Date:
NATICHA RUIZ-HERNANDEZ,
12/23/11
Motion Seq. No.:
TPE NWI GENERAL,
02
Motion Cal. No.:
Defendant
TPE NWI GENERAL,
Third-party Plaintiff,
-v-
GUARDSMAN ELEVATOR CO., INC.,
Third-party Defendant.
FILED
NEW YORK
COUNTY CLERK'S OFFICE
The following papers, numbered 1 to 3 were read on this motion for summary judgment.
PAPERS NUMBERED
Notice of MotiodOrder to Show Cause "Affidavits -Exhibits
Answering Affidavits - Exhibits
Replying Affidavits - Exhibits
C ross-Motion :
0 Yes
No
Upon the foregoing papers,
In this action to recover for injuries plaintiff Naticha
Ruiz-Hernandez claims to have suffered in an elevator accident,
defendant TPE NWI General ( T P E ) moves for summary judgment
dismissing the complaint. Third-party defendant Guardsman
Elevator C o . , I n c . (Guardsman) moves for summary judgment
Check One:
0 FINAL DISPOSITION
Check if appropriate:
0 DO NOT POST
NON-FINAL DISPOSITION
0 REFERENCE
0 SETTLElSUBMlT ORDEWJUDG.
[* 2]
dismissing the third-party complaint.
On June 27, 2007 in a building known as 32-38 West 111th
Street, New York, New York, plaintiff was allegedly injured when
an elevator in which she was riding, shook, and then dropped,
causing plaintiff to be lifted off of her feet and fall.
Plaintiff does not know how far the elevator fell.
After the
alleged fall, the elevator continued up to plaintiffâs floor,
where plaintiff exited t h e elevator.
TPE is the owner of the premises, while Guardsman is the
elevator repair company TPE contracted with to provide monthly
maintenance on the elevator and to make any necessary repairs.
Guardsman was also on call to come to the premises if summoned
a b o u t a particular problem.
TPE
There is no written contract between
and Guardsman.
Guardsman had been called to the premises in the month
previous to plaintiffâs accident to r e p l a c e a relay on the
elevator, identified as an IP8300 relay. According to
Guardsmanâs witness, Robert C u m i n s (Cummins), the I P 8 3 0 0 relay
âis a landing control system. It is the subcomponent that
controls floor stops and direction selection.â Guardsman was
called on June 27, 2007, apparently sometime soon a f t e r
-2-
[* 3]
plaintiffâs accident,â,to r e p l a c e the relay again, which it did
the n e x t day.
C u m i n s testifies that an IP8300 relay can be âburnt o u t â by
âlow voltageâ, and that low voltage can be caused by a âspike of
very h o t weather.â TPE and Guardsman apparently c l a i m that Con
Edison caused a âbrownoutâ on t h e day in question, because of t h e
hot weather, and the brownout was t h e cause of the low v o l t a g e
that may have affected the IP8300 relay on the day of plaintiffâs
accident.
Thus, TPE faults Con Edison with the condition
contributing to plaintiffâs accident;â a burnt-out relay, caused
by the actions of a third party.
âThe proponent of a motion f o r summary judgment must
demonstrate that t h e r e are no material issues of fact in dispute,
and t h a t it is entitled to judgment as a matter of law.â Dallas,Stephenson v Waisrnan, 39 AD3d 3 0 3 , 3 0 6 (1â D e p t 2 0 0 7 ) , citing
Winesrad v New York University Medical C e n t e r , 64 NY2d 8 5 1 , 853
(1985). Upon proffer of evidence establishing a prima facie case
by the movant, â t h e p a r t y opposing a motion for summary judgment
bears the burden of âproduc[ingl evidentiary proof in admissible
form sufficient to require a trial of material questions of
âPlaintiff claims that her accident occurred about 5:OO P.M.
C u m i n s claims that the call came into Guardsmanâs answering
service at 5:15 P.M.
âTPE and Guardsman do not concede t h a t t h e r e w a s an
accident.
-3-
[* 4]
fact,
' ' I
P e w l e v Grasso, 50 AD3d 5 3 5 , 545 ( l SDept 2008),
t
quoting Zuckermw v C itv of New York, 49 N Y 2 d 557, 562 (1980).
If there is any doubt as to the existence of a triable issue of
fact, summary judgment must be denied. Rotuba Extruders v
Ceppos, 46 NY2d 223 (1978);Gross v Amalqamated Houginq
Corooration, 298 AD2d 224 (1st Dept 2002).
"Liability for a dangerous condition is generally predicated
on either ownership, control or a special use of the property."
Lopez v Allied Amusement; Shows, Inc., 83 A D 3 d 519, 519 (1st Dept
2011). A landowner may be found liable in tort if a party
suffers an injury due to \\'an
allegedly defective condition upon
property,"' if it is determined that "'the landowner
affirmatively created the condition or had actual or constructive
notice of its existence [citation omitted].'" Spindel1 v Town of
Hempstead, 92 AD3d 669, 2012 NY Slip Op 00951, "2 (2d Dept 2012);
see also
2011).
Pintor v 122 Water Realty, LLC, 90 A D 3 d 449 (1st Dept
"Actual notice may be found where a defendant either
created the condition, or was aware of its existence prior to the
accident." Atashi v Fred-Douq 117 LLC, 87 AD3d 455, 456 (1st
Dept 2011).
"In order to constitute constructive notice, a
defect must be visible and apparent for a sufficient length of
time to permit the defendant's employees to discover and remedy
it."
&,
citing Gordon v American Museum of Natural History, 67
NY2d 836 (1986).
-4-
[* 5]
In the present case, there is no evidence that TPE caused
the burnt: relay which may have contributed to plaintiff's
accident. However, there is some question about whether it had
actual or constructive notice of a defective relay.
TPE denies any knowledge of a defective condition. However,
its repair company, Guardsman, admits that the IP8300 relay could
burn out during low-voltage episodes. In addition, plaintiff's
expert states that the weather reports f o r the day of the
accident show that a blackout did occur but that such was not the
result of excessive electrical overload on The Con Ed grid, i.e.
there was no brownout which results when there is a power cutback
by the utility to prevent a blackout.
The expert further notes
that the superintendent's memo book for the building contained
entries related to the elevator on the day of the accident, but
they do not indicate any low volt.age problems on that day.
He
opined that within a reasonable degree of mechanical certainty,
the malfunction or series of malfunctions that occurred on June
27, 2007 on the elevator were not due to any reduction in voltage
in the building.
The expert also stated that one of the records
of third party defendant Guardsman indicated that t h e I P 8 3 0 0
relay was failing o v e r a month prior to the accident. Such
constitutes evidence that TPE had knowledge of the defect
knowledge: a relay which could not withstand low voltage, and
that had failed in the past, and would be expected to fail in the
-5-
[* 6]
future, during ordinary brownout events. There is, therefore, a
question of actual or constructive notice on TPEâs part, and
likewise whether Guardsman a l s o may be charged with notice of the
potential f o r relay failure during brownouts.
Even if there was no question of notice, there is an issue
of fact in this case based on the doctrine of res ipsa loquitur.
As a first argument, TPE suggests that res ipsa loquitur can
never be applied in the absence of an initial showing of notice.
However, cases in b o t h the Appellate Division, First Department,
and t h e Appellate Division, Second Department, demonstrate
otherwise, finding that the inference of negligence created by
the doctrine may call for the denial of a motion f o r summary
judgment even where t h e possibility of notice has not otherwise
been established.
See Devito v Centennial Elevator Industries,
Inc., 90 AD3d 595 (2d Dept 2011); Sinsh v UP^ t e d Cerebral palsy
N.Y. City, Inc., 72 AD3d 2 7 2 (1st Dept 2010); Iangtta v Tishrnan
Speyer Properties, Inc., 46 AD3d 297 (1st Dept 2007); Fyall v
Centennial Elevator Industries, Inc., 43 AD3d 1103 (2d Dept
2007).
Thus, plaintiff may proceed on a theory of res ipsa
loquitur.
Res ipsa loquitur creates an inference of negligence under
certain circumstances. Dermatosgiaq v New York City Transit
Authority, 67 NY2d 219 (1986). Under â c h i s doctrine, an action
may proceed to the trier of fact if it is established that t h e
-6-
[* 7]
accident "(1) was of a kind that 'ordinarily does not occur in
the absence of someone's negligence; ( 2 )
[was] caused by an agent
or instrumentality within the exclusive control of the defendant;
[and] (3) [was not] due to any voluntary action or contribution
on the p a r t of the plaintiff.'" Sinqh v United Cerebral P a l w ~f
N.Y. City, Inc., 72 AD3d at 277, quoting Moreion v R a i a
Construction C nmpanv, 7 NY3d 203, 209 (2006).
To the extent that TPE addresses the res ipsa loquitur
argument, TPE claims that the second element, exclusive control,
is missing, because of the alleged interference of Con Edison's
brownout with the IP8300 relay.
TPE argues that t h e there is
only evidence, if at all, that the accident was the fault of Con
Edison, who caused a nondefective part on the elevator, the
IP8300 relay, to be "made defective,,by providing low voltage.
As such, TPE denies having exclusive control of the elevator.
This c o u r t finds that there is a question of fact as to
whether res ipsa loquitur provides a presumption of negligence.
As to the first requirement for a showing of res ipsa loquitur,
this c o u r t finds that the accident in question is "an event of
the kind which would not ordinarily occur in the absence of
negligence." Burqess v Otis Elevator Company, 114 AD2d 7 8 4 , 7 8 6
(1st Dept 1 9 8 5 )
,
69
NY2d
623
(1986).
TPE claims that it was not in exclusive control of the r e l a y
because any problem was caused not by TPE, but by Con Edison.
-7-
[* 8]
This position ignores the reality that t h e relay, which ought to
be functioning at a l l times, was in the exclusive control of TPE
and/or Guardsman.
TPEâs claim that it \âneverclaimed to maintain t h e elevator,
let alone exclusively maintain the elevatorâ, does not defeat a
r e s ipsa loquitur argument.
\ \ [ R ] e s ipsa
loquitor does not
require sole physical access to the instrumentality causing t h e
injury and can be applied i n situations where m o r e than one
defendant could have exercised exclusive control.â $inqh v
Unitd Cerebral Palsy of N.Y. Citv, Inc., 72 AD3d at 277. The
evidence shows that Guardsman came to the premises monthly and as
needed.
There is no evidence that TPE ceded all responsibility
for the elevator to Guardsman; the elevator remained within TPEâs
control, as owner of the premises.
TPEâs reliance on cases involving escalators, in which
exclusive control is often found lacking, is untenable.
In such
cases, it is acknowledged that the public has access to the
workings of escalators. See Parris v P o r t of N,Y. Authority, 47
AD3d 460, 461 (1st Dept 2008) (escalator âsubject to extensive
public contact on a daily basisâ); Birdsall v Montqornery Ward. &
L.,
109 AD2d
969 (3d Dept 1 9 8 5 ) , affd 65 NY2d 913 (1985)
(escalator malfunctioning attributable to debris on escalator).
This is not the case with elevators, where the inner workings of
the machine are not generally within the public s p h e r e .
-8-
[* 9]
of notice of a dangerous condition with the elevator, that is, a
propensity of the elevator to f a l l .
However, as specified
previously, Guardsman had access t o the elevator, and knowledge
of the alleged relay problem during low-voltage events. Further,
res ipsa loquitur applies as a valid theory of negligence, based
on Guardsman's access to the elevator, and its admission that it
had recently changed the I P 8 3 0 0 rely.
Issues of fact exist.
As a resulL of the foregoing, this court finds t h a t there is
a question of fact as to whether TPE had actual or constructive
notice of a defect in the I P 8 3 0 0 relay, Further, there a r e
questions of fact as to whether an inference of negligence
exists, based on the application of the doctrine of res i p s a
loquitur to the f a c t s .
As a result, both the motion of T P E , and
t h a t of Guardsman, are denied.
Accordingly, it is
ORDERED that t h e motion brought by defendant TPE NWI General
for summary judgment dismissing the complaint is denied; and it
is further
ORDERED that the motion brou.ght by third-party defendant
Guardsman Elevator Co., Inc. for summary judgment dismiesing t h e
third-party complaint is denied.
This is t h e decision and order of t h e court.
Dated:
April 12, 2012
ENTER
-9-
IS2012
