Albanese v Mainco Elevator & Electrical Corp.
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Albanese v Mainco Elevator & Electrical Corp. 2012 NY Slip Op 32328(U) September 6, 2012 Supreme Court, New York County Docket Number: 111591/2006 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORB NEW YORK COUNTY 1 I PART PRESENT: Jush 1 9 - -. i- Index Number 11159112006 ALBANESE, LAURA L. vs. 1 j MAINCO ELEVATOR SEQUENCE NUMBER : 005 I PARTIAL SUMMARY JUDGMENT I ' INDEX NO. MOTION DATE The fpiiowing papen, numbwed 1 to Notlce of MotlonlOrder to Show C a p s Answering Affidavlta MOTlONSEQ.NO. , ~ ,were read on thl8 mgtlon toHor -Affldrvib - Exhibits INo(*). INo(*). IW 8 ) . - Exhibita Replying AffldryiG Upon the foregoing paperq, it is ordered that this motion IB d & w\Ad L A I ..................................................................... CASE DISPOSED ON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: .............. ~ O T I O N 0GRANTED IS: GRANTED IN PART 0OTM6R DENIED 3. CHECK IF APPROPRIATE: ................................................ uSETTLE ORDER 0SUBMIT ORDER DO NOT POST 0FIQUcIARY APPQIVTMENT 0REFERENCE I. CHECK ONE: " [* 2] Iiidcx No.: I 11 5 W 2 O O 6 P 1ainti ffs , - against- DECISION AND ORDER MAINCIO ELI 3VATOR & ELEC I RICAL COKP and 1 1ZY SSENKRIJPP ET,EVATOR CORPOIUTION, 200 E.Post Kd., 2[ldFloor White Plains, NY 1 0 6 0 3 ~ ~ 10 670 White Plains Road, Suitc 322 Scarsdale, NY 10583 2012 I ~ORK COUNTY C M K 6 8 Papers corisidcred in review o f this motion for partial sumrnaiy judgrr@k Notice or Molion. . . . . . . . . . I hff in Opp . . . . . . . . . . . . . - 2 Reply. . . . . . . . . . . . . . . . .. 3 T k i . . L .:::A >-.. tION. SALIANN SCARPLJLLA, J .: T this action to recover damages Cor personal injuries, plaintiffs Laura L. n Albanese and C hristoplicr A1bancse (collectively referrcd to as Albancse ) inove far partial sunimary judgment 011 the issue of liability. lhk pcrsoiial iiijury aclioii arises out of an accident that occurred on Novcmber 8, 2004, when an elevator inalfimctioned causing plaintiff Laura I,. Albaiicse to sustain injuries. Albaiicse filed a complaint against defendants Mainco 1 :levator & Elcctrical -1- [* 3] Corp. and l hyssenkrupp Elevator Corporation ( Elevator Defendants ) alleging seven causcs of action grounded in negligence and products liability. L,aura T,. Albancse was an aiiiinal technician employed by New York 1Jnivcrsity ( NYLJ ) at the time of hcr accidcnl. The aninlals were kept in Ihe NYIJ basement and the research was clone oil tlic tenth and clcventh floors. Albaiiesc and 111eother employees wo~tld have to take one of two elcvators to transport the aiiiiiials or other items from the basenlent to tlie labs. On tlie date ol licr accidcnt, a t around 3:OO P.M., Albanesc and her managcr, nonparty Michael Gorlnan ( Gonnan ), needed to transport an aniinal chair from the basement to the eleventh floor. Otic of the two elcvators, the southwest elevator, was out ol sei-vicc, so tliey had to take the northwest elevator. This elcvator was the only uiic which had doors that opened in the front and the back. Alhancse and Gorinan had just previously taken the northwest elcvator down froin the eleventh floor without incidcnt. C;orman tcstificd that he and Albanesc entered the northwest elevator arid that i t started to asccnd. He continued, [t]hen after I don t know how long, five seconds to ten seconds, T don t recall, it fclt like it dropped and wc fell, 1 would guess, a few floors, I don t lcnow and then it stopped abruptly. Gorrnan stated that the elevator dcfiiiitely fell a couple of floors. l he doors then opened and he could see that the elevator was between floors two and three. Gorinan tcstitied that while it was i alling, he lost his balancc. When I stopped, I slammcd into the chair that I had my right arm resting on. [* 4] With the doors still open, Ihe elevator tlicn started to ascend and came to a stop belween floors three iind four. The lights did not turn offnor were there any vibrations. At that point, Gorman testified that he looked at Albariesc who was crouchcd down leaiiing against the back ol the elevalor. Tlic elevator then went up and stopped at the tenth instead ol tlie elevcnlh floor. Gorinan and Albanese exited thc elevator. According to AJbanesc, slic and Gorniaii had cntercd the elevator and it started to travel upward normally. Then, all of a sudden it just started free hlling, it just dropped and thcn it slammed to a stop. Albanesc stated that when the elevator c m c to the sudden stop, she k i t a searing pain in her back. Although Albanesc previously had back problems, s11c testified that this back pain was different and 1iioi-eintense. After the elevator fjnally stopped and opencd OJI the tenth floor, Albanese laid down on the floor behind her desk. Slic also started to have pain in her legs. When Albanese visited the doctor shortly alter her accident, she was diagnosed with a new back injury, unrelated to her. previous in-juries. Mainco Elevator & L ,lectrical Corp. ( Mainco ) is the elevator servicc maintenance and rcpair company employed by New York University. Mainco merged with Thysscnkrupp Elevator Corporation in 2009. Mainco was the exclusive provider o l services for the elevators at Albnnese s place of cmploymcnt. It was rcsponsiblt: for routine inspections and prcventive iiiaintenancc. Frank Zuccaro ( Zuccaro ), the chicf maintenance and repair incchaiiic, testified that thc subject elevator and the southwest -3- [* 5] elevator each had their ow11 separate elevator control room. Iie explained that the elevators had dirferent coinponents from each other. When asked during testimony about the work tickets I or the elcvators in the building, Zaccaro conceded that it wiis not possiblc to ascertain which elevators had been worked on fiom some of the work tickets. For example, when shown the work ticket for July 2 I , 2004, Zaccaro could not tell which elevator had been serviced. The service repair ticket from the datc of Albancse s accident iiidicatcd that a mechanic had becn working on the southwest elevator, which was the other elcvator. Although the elevator was not labeled as such on the work ticket, Zaccaro testified that the work ticket referenced a componcnt which was not prcsent oiz the subjcct northwest clevator. Zaccaro continued that the mechanic would have been working on the southwcst clevator nroiind the lime of Albancse s accident and that the mechanic would have been in the southwest dewtor s private control room. Zaccaro testiiied that the work log for thc datc after Albuncse s accident indicated that, [flrciglit car on 1 1/8/04 dropped and building staff had liurt their back, accident form was Glled out needs car chcclced out. l h c northwest elevator was thcn inspected on Noveniber 9, 2004 and no problems were I ound. Zaccaro testificd that the controller is thc device which controls the ~novement the elevator. This device could be kstcd in of the elevator s motor room by the mechanic. There were other switches in the motor room that could hc opened by a mechanic which would also control the iiioveineiil of the -4- [* 6] elevator. H e maintained that passcngers in thc elevator could not makc the doors open mid-trip unless they iised excessive force. Albancse now moves for partial sLiininary judgment on the issuc of liability. In support ofthe motion, she submits an af lidavit from expert Patrick A . Carrajat ( Carrn-jut ),who claims that what happcned to the subjcct elcvator was not normal, and was duc to the negligence of the elevator mcchanic. He explains that the LmeChanisiiis involved in causing the elevator to mnlfirnction as described arc within the exclusive control ol tlic clevator iiiaintcnance company, specifically in the iiiotor rooiii where a mechanic would have to .jump out a circuit on tlic elevator control board for tlic sub.ject elevator to mallunction as described by the witnesses. Carrajal hypothesized that the elevator mechanic who was there working on the othcr elcvator, mistakenly worked 01 1 the control panel for the suhjcct elevator. That is why on the dale after the accident, lhc subject elevator did not havc any problems. He maintains, [t]he riieclianics frcyucntly cotilirsed the two elevators. Carrajat conoludcd that nothing AI banese could have done would have made the elevator act the way that it did and that the only possible cause of the accidcnt was dire to an error by thc elevator mechanic. Alhanese claims that it is an inescapablc conclusion that a defendant incchanic caused the xubjcct elevator to drop precipitously without warning whilc Albanese and licr supervisor were in it, thereby causing her bodily injury. Albanesc alleges that the doctrine of res ipsa loquitur should apply as well. -5- [* 7] Tn opposition, the Elevator Llefcndants claim that 011 the date ol Albanese s accident, thc work ticlcct demonstrates that the nicchanic was servicing tlie other elevator. As such, tlic iiieclianic would have been in the other control room and it would nul have been possible for him to have caused the accident. For iiistance, the work ticket generated that day states that tlic mechanic started at 3:OO P.M. and endcd at 4:30 P.M. and that he found car stirclc on 3 d floor. [Motor Liinit Timer]. Cleaned cdge checked tape guides. Ran car returned lo sewice. The Elevator Defendants cspert, Jon B. Halperii ( TTalpern ) states that the elevator hlbaricse was riding did not liave a motor limit timer, so evidcritly the mechanic was worlcing on the other elevator. The inechanic who was on site on the date of Albanese s accident was not deposed. Halpcrn flurther avers, contrary to Gorinan and Albanese s tcstimony, that the elcvator did not overspeed, drop or tidl in any way. Hc bases this opinion on the elevator s mechanical systeni. Halpern then states that there are other possible scenarios, besides the negligencc of Elcvntor Defendants, which could have caused thc elevator to malfunction. He continues, [aJmong these possible scenarios are that thc elevator controller can simply losc direction and or its position from a spontancous fiilurc of a coiitrollcr coinponent, selector coinponelit or a simple blip of the incoming power without any human intervention and without any negligence oil behalf-of thc rnajiiteiiance company. IIalpel-n does not provide any further explanation of what exactly defines a simple blip. [* 8] Discussion A illovalit seeking summary judgriicrit must make a primu,fucieshowing of entitlement to judgment as a matter o ¬ law, ofrering sufficient evidence to eliminate any material issues of h c t . Winegrad v. New York Univ. Med. L tr., 64 N.Y 85 I , 853 .2d ( 1985). Once B showing has been made, the burden slzii ts to the opposing party who inusl then demonstrate the existence of a triablc issue o l fact. Alvumz v. Proxpecl Hasp., 68 N.Y.2d 320, 324 (1986); Zuckermnn v. City ($New York, 49 N.Y.2d 557 (1980). 1 0 rely on the doctrine of rcs ipsa loquitur, a plaii~tif~ni~ist deinoiistrate that the evcnt: (1) was o f a kind that ordinarily does not occur in the absence of someone s iicgligence; (2j [was] caused by an agency or iiistr~irnetitality within the exclirsivc control of the defendant; and (3 j [was not] due to any voluntary action or contribution on the part of the plaintiff [internal quotation inarlcs and citation oinitled]. Sin& v. lhzitpd c7erehrulPalsy o f N . Y. Ciy, Inc., 72 A.D.3d 272, 277 ( lSt Dept. 20 IO). Albariese contends that the only explanation for the elevator s malfunction is the I {levator Defcndants mechanic s presence in the control roo111manually overriding the subject elcvator s controls. Albanese explains that Elevator L)cfendants were present at the time of Albanese s accident and were allegedly working on the other elcvator. They were the only ones wlio provided tlic repair and maintenance services for the clevators. The work tickets in the past for the clevators demonstrated that therc was coilfusion as to the idciitity of the elevators being worked 011. Neither Albariesc nor any other passengers -7 - [* 9] wuld ciiitse tlic elevator to function the way that it did. An inspection the day aDerwards did riot indicate that tlic elevator had problems. Albancse also claims that the possible non-negligent causes of the accident, as provided by Flalpern, are based 011 the crroncous assumption that the elevator did not drop or reverse direction. Albanesc contends that Halpem did not address her ~zllcgatioii the controls being manually ovcrriddcn and that of his theories of alternative causes of the accident arc without foundation. As such, Albanese claims that there is no issue of fact with rcspect to the Elevator 1)creiidants exclusive control of the clcvator and of Elevator Dcfcndants negligence. It is undisputed that Albanese did not contrilmte to the elevator s kchavior. The Elevator Dclendants do not appear to dispute that they were the ones that had exclusive control over the elevators. l hc CC>UI? finds that thc Elevator Jlcfendants had exclusive control over the elevator in that they had the exclusive contracts for the maintenance and servicc ofthe elevator. See Ficrmonti v Oi Elevator Coinpiny, 94 A.D.3d 691, 692 (2d ts Depi. 20 12 ( Proof that the sudden inisleveling of the elevator was an occurrence that would not ordinarily occur iii the absence of-negligence, that the inainteniince and scrvicc of the elevator was within the cxclusive control of Otis, and that no act or negligence on the in.jurcd plaintirf s part contributed to thc happening of the accident, is a basis for liability uiider thc doctrine of res ipsa loquitur ). Elevator Defendants do argue, Iiowever, that thc evidence raises issues or fact particularly as to the negligence element of the res ipsa loquitur doctrine. As prcviously -8- [* 10] mentioned, the Elcvator Defendants' expert provides alternative theories for why the accident occurred, and also alleges that the elevator could never have desccnded after jt started to ascend. 111support of its argument rcgarding negligence, the Elevator Defendants cite to Murtincz v. Mullarkey (41 h.D.3d 666 [2d Dept. 2007]), in which the court found that tlic trial coiirt erred wlicn it grantcd Judgment as a matter of law against the elevator maintenance coiiipaxiy based OII the doctrine of res ipsa locjuihir. Similar as in the present casc, in kkirtinez v. Mulfmkey, the plaintiff suffered injuries whcn the elevator suddenly dropped and came to a sudden stop. ' T h e had bcen no previous complaints about the subject elevator. Both plaintiff and defendant's experts gave different explanatioiis for what could have caused the accident. I'lic Court found that, 'There was inconclusive arid sharply disputed evidence concerning the prccisc cause of the accident and it was therefore enor for the trial court to rely on res ipsa loquitur to direct a vcrdict against Centennial on thc issue of liability as a matter- of law rather than submitting to the -jury the issues of fact surrounding the applicability of the doctrine. Id. at 669. Albanese claims that Murtimz v. Mullarkey, supra, is not comparable becausc in the present situation, Halpern's "inusiiigs about possible 'spontaneous' component failurcs are flatly contradicted by detndants' own adiiiission ... Iior arc thcy bascd on his personal kiiowlcdge or inspection of the sul>-jcctelevator." Although the doctrine of rcs ipsa loquitur may apply in this case, inasmuch as the court Gnds that the erratic behavior of tlic elevator which led to Albanese's injuries was - 9- [* 11] neither an ordinary iior a natural experiencc (Weedm v. Armor EZ.Co., 97 A.D.2d 197, 205 12d Dcpt. 1983]), the court finds that the case ofMarlincz v. Mzdlarkey, supra, is instructive and comparable. Compare Dickmnn v. Stpwurt Tenants C70rp. 22 I A.D.2d 158, 158 (1 k p t . 1995) (in which defendant elevator repair company had been informed of complaints regarding the elevator s inisleveling and the court licld that negligence could 11avc been infcrrud clue 10 its i ailirre to take any correctivc action and also that [d]ekndant s negligence was also cstablished tlirougli the application of the doctrinc of res ipsa loquitur ). Although Halpcm s contends, in an affidavit, that it may havc been a possibility that the elevator did not [ree [all, lie then sets forth additional caiiscs of the incident that would not be the rcsirlt of the lilcvator Ilefcndaiits negligcnce. There is no apparent contradiction. Moreover, there is no indication that Albanese s cxpert iiispectcd the subject elevator eithcr. With respect to negligence, thc Appellate Division, First Department has held that [t]lie only instance when res ipsa loquitur can be establishcd as a matter of law is when the plaintiffs circumstantial proof js so convincing and the defcndant s response so weak that the i n h e n c e of [the] defendant s negligence is inescapable [internal quotation marks and citation omitted]. N ~ i g h t o n Ci(y q f N e w York, 94 A.D.3d I , 1 I ( I Dept. 2012). v. While the court agrees that T-Ialpern s affidavit is minimally informativc, due to other evidence in the record, the Elevator Defendants negligence or lack thereof , caimot -10- [* 12] be determiiied as a matter ol law at this tiinc. For example, the work ticket generatpd on the clatc of Albanese s accident indicates that the mechanic: was working on the other clcvator. Zaccaro, as wcll as Halpern, contended that one of the parts refcrred to by thc incchanic on his ticket, was not a part on thc clcvator involved in Albanesc s accident. Recause the iiiechaiiics work tickets wcrc frequently uiiideiitiilable and tlic mechanics theinsclvcs conhsed the elevators, the court cannot conclude at this tiiiie that the inferencc of [the] defendants s negligence is inescapable. Moreover, res ipsa loquitur is an cvidentiary doctrine where plaintiff bears the burden of proof. Stntes v. Lourdes Hospital, 100 N.Y.2d 208, 213 (2003). Albanese has not met her burden of proof in light of the additional allcgcd noli-negligent possible causes of tlic accident, coupled with the work tickets a1legcdly indicating that Elcvator Ddeiidants were not working on the suljcct elevator at the time of the incidcnl. Accordingly, because questions of Fxt remain with respect to the Elevator Defendants negligence, A1 bmese s motion lor partial summary judgment on the issue of -11- [* 13] liability is denied. I n accordancc with thc foregoing, it is hereby ORDEIGTI that 1,aura L. Albaiiese and Cl~rislopl~cr Albanese s motion for partial summary judgment on the issuc of liability is denied. I liis constitutes the decision and order of the court. Dated: - New York, Ncw York 2012 3 E N 1 R: E -12-
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