Ramirez v Rotavele Elevator, Inc.

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Ramirez v Rotavele Elevator, Inc. 2012 NY Slip Op 32360(U) September 7, 2012 Supreme Court, New York County Docket Number: 115308/2009 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. EDON911212012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART A - ; 1 1 1 ' ~ Index Number : 115308/2009 RAMIREZ, FERNANDO vs. ROTAVELE ELEVATOR, INC. SEQUENCE NUMBER : 005 INDEX NO. MOTION PATE MOTION SEQ, NO. REARGUMENTlRECONSlDERATlON , were read on thls motlon tolfor The following pspsm, numbered I to Notlce of MotlonlOrder to Show Cauis Answerlng Affldavlta - Affldavlts - Exhlblta IW s ) . IWd. IW s ) . - Exhlblts Replylng Affldavlts Upon the foregoing paperg, It Is ordered that thls mothn lo motion and cross-motion are d cicl d in accordance i I I Dated: 9\a ,J.SLC. S I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ CASE D18POSkD A M SCARPULLA NON-FINAL DISPOSITION 1 RANTED 0DENIED SETTLE ORPER 0DO NOT POST CSRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPQINTMENT REFERENCE [* 2] Index No.: 115308/09 Siibinission Datc: 8/8/20 12 P 1aiiiti ff, - againstDECISION ANI) ORDER K(3TAVE :LEEJXVAl (I)K, INC:., alld 447-453 West 18 L,P, I-oi- Defendnnt 447-453 West 1 H LP: Traiih, Liebei-man, Strauss & Shrewshci-ry, LLP Mid-Westcliestcr Executivc Park Seven Skyline Drive Hiiwthorrie, N.Y. 10.532 Papel-s considci-ccl in revicw ofthis motion and cross-motioll to reargue: y Notice of Motion . . . . . . . . . . . . I All in Support . . . . . . . . . . . . . 2 Aff in Opp. . . . . . . . . . . . . . . . .3 Notice oTC ross-Molion, . . . . . . .4 AIl in Opp . . . . . . . . . . . . . . .- 5 Aff in Partial Opp . . . . . . . . . . .6 Reply An.. . . . . . . . . . . . . . . . . 7 Reply A f f . . . . . . . . . . . . . . . . .8 FIL I SEP 12 2012 -MY A. CLERKS OFFICE NEWYORK c FION. SALIANN SCAIIPIJLJ A, J.: In this ncgligence action, delendant 447-453 Wcst 18 1,P ( 447-453 ) MOVCS pursuant to CPLR 52221(d) for an order granting lcave to reargue its iiiotion which sought summary judginent dismissing the complaint of plaintiff F e r n d o Rainirez s ( Kamire7 ) and all ci-oss-claims asserted against it, judgment over and against dcfendant 1 [* 3] Rotavelc Elevator, Inc. ( Rotavcle ) for contract iral indemnity, and @lgiiicnt over and against Rotavelc lor coininon law iiid~mnifica~ior~. Rotavcle C ~ U S S - I I I U V an ordcr lor ~ S pursuant to C PLR 222 I ((1) granting leave to reargue its motio~ifi)r suiiiinary jiidgineiit dismissing all claims and cross-claims against it. By dccisioii and order dated April 16, 20 12, 447-453 s motion and Kotavele s cross-motion [or summary judgement werc denied. 447-453 now inovcs to reargue, asserting that dcnial of its iiiotiori [or suiiiixwy judgment was based on my niisi-lpprelicnsion of the operative law. 447-453 argues that my dccision to acccpt as true Kamirez s testimony that he was injured wlicii the elevator went into lree fill despite concluding that 447-453 had met its burden by subiiiittjiig evidencc that the accident was a ineclianical impossibility is a misapprehension of thc controlling law, and tlial 1 was incorrect to concludc that tlic case should be submittcd to a jury on [he basis of Ritmire7 s invocation ol res ipsa IoqiiitLii-. Similarly, on iis cross-motion, liotavele argues that 1 misapprehended ihe law when I denied Rotavcle s motion for summary judgment hased on Raniit-eL s uncorroborated deposition testimony, even though I found that Iiotavcle made a prima facie showing that thc: elevator did not have a defective condition m i the date of IianiireL s accident and that there was iio coiistructivc or actual notice of any defective condition. 2 [* 4] 111opposiilion to the niotioii aiid cross-motion, 1Caiiiirez argues that the Court did not rnisapprchcnd the law. Kniiiircz asscrts that neither defendant argues that the Court iiiisapprehended the law olres ipsa loquitur, as licither challenges the Court s finding thal an elevator going into Urcc kill is the type ofcvc~it does not occur in the absencc 01 that negligence, iior clo they assert in their rcspcclive motions to reargue mytliing with rcspecl to tlic cxclusivc coiili-01 of thc elevator. Further, Rarnirez points oul that neither defendant argues on these motions that m y act or negligence by RaiiiireL contributed to the accident. Ramirer asserts thal both clcleiidants iiiotioiis to rcurgue mist be dcnicd, as their nrguincnt that their offering of proof that Raiiiii-ez s account of thc accident is mecliniiically impossible renders res ipsa loquitur inapplicable does not establish a inisaqJprdiensi on of the 1nw. Discussion Pursuaiit to CPLR 222 l(d)(2), a iiiotioii to reargue iiiiist be based upon iiiattcrs ol fact or law allcgedly overlooked or inisapprchcndcd by llic court in deterinining the prior iiiotioii. MmzLqirzcv KeIler, 182 A.D.2d 476, 477 (1st Dep l 992). Absent mislake on the Court s parl, the C oiirt must adhcrc to its original decision I nlzf Eqzii/7rnent C7orp v I7eni.y Kussis, 1S2 A.D.2d 22, 27-28 ( I st Dep t 1992). TIcrc, reviewing the submissions of the parties for a second time, the Court once again finds issucs ol h c t which mist bc resolved at trial. a [* 5] I n the riiidcrlying decision, J found that while the defendants met tlicir burdens to show a prima h c i e entitlcment to siiiniiiaiy judgment, Ramirez cstablished a triable issue of fact solcly iiiider the doctrine of rcs ipsa loquitur. J Iefcndants properly note that in tlic riiiderlyiiig dccision 1 found that thcy submitted evidence, suflicient to meet their initial burdcn Ihat filevator 2 was not in defective condition and that the,y did no1 havc actual or constructive notice ol aii alleged defective condition. 1 also foiind that while Ramirez s expert submission hiled to create an issue of fact, Ramirez s own deposition tcstimony and invocation orres ipsa loquitur did create an issue o f h c t . As 1 held in the undcrlying decision, it is wcll settled that on a motion ibr surniiiary jitdgmcnl the court should draw ;dl reasonable inferences in favor of the nonnioving party and should not pass on issues of crcdibility. Assqfv. Kopog Cuh Corp., IS3 A.D.2d 520, 521 (1st J.)ep t 1989). See nlso O LYullivcin Pvesbyteriun Hosp. in C ily of v. .New York al Colziinhiu Presbyterim Medical C cntcr, 217 A.D.2d 98, 101 ( I Tkp t 1995); Ariwllino v. Tliornasc, 72 A.D.3d 849 (2d Dep t 20 IO); Hrxr*!fhdIns. C o. v. Gener.ul Acci. C;roup Irzs. Co,, 177 A.D.2d 1046, 1047 (4 Dcp t 199 1 ) ( l. hecrcdibility ofthe testimony ofplaintiff s witnesses and its probative value is not to be resolved 011 a summaty judgment motion, but rather is (or the jury s dcterinination ). Idowever, after 1 dccided tlic undcrlyiiig motions, the First Dcpartnient, Appellate Division issucd its decision in Espinal v. Trezechahn IO65 Avenue of the Anzericus, L K , 4 [* 6] 94 A.D.3d 61 1 (1 L)ep t 2012), which 447-453 relies on in sirpport of its motion to reargue. The Court in Espind states that [wlhile generally crcdibility dclerininalions arc lcIt to thc trier of thc facts, wlicre testimony is physically iinpossible or contrary to cxpc rieiicc, il has 110 cvidentiaqr value. 94 A.LI.3d at 613 (quoting Loughlin v C ifv o f NCM, Yor%, I86 A.D.2d 398 (199$)). The Court in Espincrl li~und plaintifYs version ol the incident incredible as a matter of law. I t is not supported by the other witnesses or evidence subiiiitted on this motion. Plaintiff did riot producc an expcrt to contradict [dci cndant s expert's] opinion that the incident wzis ineclmiically impossible . . . , 1)lnintifTs contciition that the unlikelihood of an occurrencc does not iiiean it is inipossible rests OII illere spccdation, which is insuffkietit to dereat a iiiotioll for suriiinaryjudgiiient. 94 A.D.3d h 11, 613. On the inotim Ibr sirinriiary judginent, Rainirez did suL3iiiit cxpcrt opinion. Iiowevcr I found that it did not cl-cztte a question of f x t , and on this motion to reargue I adhere to my initial detcriiiination. Therefore, Kaniiru s clnini for res ipsa loquitur rwts on his tcstiinony almc that the elevator went into free Ml. In thc Lace ofdcfmdants submissions that such a [all was a mechanical impossibility, I now fmd that Rariiircz E.sp inal a1Y c) fo~ i idi rcs ips n I oqu it11 r inapp 1i c ab 1c 17ecaus e dc fcndnnt s cxpert provided uncontroverted explanations of reasons other than negligeiicc why an accident such as plaintill s might have occurred. 94 A.Ll.3~1 614. at 1 5 [* 7] hiled lo rebut defendants' prima h c i e showing. Accordingly, the motioii and cross motion for siimmary judgtncnt will be granted. In accordance with the foregoing it is ORDEIUiI) that the motion by defendant 447-453 Wcst I X L1 to reargue the court s decision and order is granted; and it is I-irrther OII1)ERED that, upon rcarguiiicnt, 447-453 Wcst 18 1,P s motion for summary judgment disrnissing the complaint and all cross claims against it is grantcd; and it is further O1WT:RED that the cross-iiiotion by dcfcndant Rotavcle Elevator, lnc. to rcargue the court s decision and order is granted; and it is further ORDER1 33 that, upon reargument, Rotavele Elevator, Inc. s iiiotioii for suininnry judgincnt dismissing thc coinplaint and till cross claiins against i t is granted; and it is lurther ORDEKfZl that the Clerk is directed to enter judgment accordingly. This constitutes the dccision and order o r the Court. 1:) ated : N.ew York, New York September 7, 2012 ENTER: 6

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