Shell v Kone El. Co.

[*1] Shell v Kone El. Co. 2012 NY Slip Op 52171(U) Decided on November 28, 2012 Supreme Court, Kings County Saitta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 28, 2012
Supreme Court, Kings County

Virginia Shell, Plaintiff,

against

Kone Elevator Co., and Linpro New York Realty, Inc., Defendants.



12090/2006



Plaintiff Attorney -

Robert A. Cardali, Esq.

39 Broadway, 35th floor

New York, New York 10006

(212) 964-3855

Martin Grossman, Esq.

Defendant Attorney - (Linpro New York Realty, Inc.)

Lawrence, Worden, Rains & Bard, P.c.

225 Broad Hollow Road, Suite 105E

Meliville, New York 11747

(631) 694-0033

Rose E. Hunter, Esq.

Defendant Attorney - (Kone Elevator, Co.)

Costello, Shea & Gaffney, LLP

44 Wall Street

New York, New York 10008

(212) 483-9600

Jessica Beauvias, Esq.

Wayne P. Saitta, J.

Defendant, KONE ELEVATOR CO., (hereinafter "KONE"), moves this Court for an Order pursuant to CPLR §3212 for Summary Judgment against the Plaintiff, Defendant LINPRO NEW YORK REALTY, INC., cross moves this Court for an Order pursuant to CPLR §3212 for Summary Judgment against the Plaintiff and dismissing all cross claims against it.

Upon reading the Notice of Motion by Jessica Beauvais, Esq., Attorney for Defendant, KONE ELEVATOR CO., dated February 24th, 2012 together with the Affirmation in Support of KONE's Motion for Summary Judgment, dated February 24th, 2012, and all exhibits annexed thereto; the Notice of Cross-Motion by Rose E. Hunter, Esq., Attorney for Defendant, LINPRO NEW YORK REALTY, INC., dated April 16th, 2012, together with the Affirmation in Support of Rose E. Hunter, Esq, dated April 16th, 2012, and all exhibits annexed thereto; the Affirmation in Partial Opposition to Co-Defendant's Cross-Motion of Jessica Beauvais, Esq., dated May 15th, 2012; the Affirmation of Martin Grossman, Esq., Attorney for Plaintiff, VIRGINIA SHELL, dated May 16th, 2012 and all exhibits annexed thereto; the Reply Affirmation by Jessica Beauvais, Esq., dated May 23rd, 2012 and all exhibits annexed thereto; the Reply Affirmation in Support of Cross-Motion for Summary Judgment by Defendants LINPRO, of Rose E. Hunter, Esq., dated May 23rd, 2012; and after argument of counsel and due deliberation thereon, KONE's motion for Summary Judgment is denied and LINPRO's cross motion is granted for the reasons set forth below.

FACTS

Plaintiff brings this action to recover for injuries she sustained when she tripped and fell while exiting an elevator on September 14, 2005 at approximately 8:00 am. The elevator, "elevator one", is located at 290 Broadway, New York, NY, where Plaintiff is employed.

Plaintiff was in the lobby waiting for the elevator. When it arrived and she went to enter the elevator, her foot struck something and she fell forward onto the floor of the elevator. She alleges that the elevator mis-leveled, causing her to trip and fall. Plaintiff stated she made no prior complaints about the elevator.

Defendant LINPRO managed the building for the owner at the time of Plaintiff's accident.

Thomas O'Grady was the building manager for LINPRO at the time of Plaintiff's fall. Mr. O'Grady stated he had not received any complaint regarding elevator one for a year prior to September 14, 2005.

LINPRO contracted with Defendant KONE for KONE to maintain the elevator equipment at 290 Broadway pursuant to a Preventative Maintenance Agreement, ("PM Agreement"). The agreement was in effect at the time of Plaintiff's fall.

Gary Savage was an employee of KONE and stated that KONE had a resident mechanic, Jim McMahon, stationed at 290 Broadway on weekdays from 7:30-5:30 daily. Savage stated that McMahon would check elevators for leveling problems on a daily basis, in accordance with KONE's preventative maintenance program. McMahon died prior to being deposed.

Defendant KONE denies having any log book for McMahon's daily activities but produced documents entitled "time ticket detail reports". These reports provide [*2]information as to the identity of employee who responded to service calls, the building site and the hours worked. No significant detail as to the nature of the service calls is provided, other than the identification of the elevator.

ARGUMENTS

Defendant KONE argues it is entitled to summary judgment as there is no evidence that KONE had constructive or actual notice of the condition which caused Plaintiff's fall.

Defendant LINPRO also argues that it is entitled to summary judgment as it had no constructive or actual notice of the condition which caused Plaintiff's fall. It also argues it is entitled to summary judgment as it had a full service agreement for KONE to provide all elevator maintenance services, which displaced any duty it had to maintain the elevator.

Plaintiff opposes only KONE's motion, arguing that she does not need to prove that KONE had notice of the condition because the doctrine of res ipsa loquitur applies to malfunctioning elevators, and that res ipsa loquitur permits an inference of negligence. She argues that res ipsa loquitur precludes summary judgment and permits the question as to whether KONE was negligent to go to a jury.

While KONE agrees with LINPRO's assertion that there is a lack of notice as to the mis-leveling of the elevator, KONE argues that LINPRO's duty to the Plaintiff was not displaced by KONE, because the service agreement was not comprehensive or exclusive. KONE asserts that the agreement contained an exclusion which stated that KONE was not responsible or liable for LINPRO and its employees' operation of the of the equipment as a result of providing training with respect to the operating and safety features of the equipment.

KONE further argues that the fact that LINPRO's fair safety director and deputy safety director could shut down the elevators for cleaning and in case of emergencies further supports the fact that LINPRO's duty was not displaced to KONE.

ANALYSIS

Notice is NOT required for res ipsa loquitur

Elevator companies who have issued maintenance contracts are liable where they have actual or constructive notice of a defect or malfunction. Constructive notice has been found where there have been prior incidents of mis-leveling. Rogers v Dorchester Associates, 32 NY2d 553, 561, 300 N.E.2d 403, 407 (1973), Sirigiano v Otis Elevator Company , 118 AD2d 920, 499 NYS2d 486 (3rd Dept 1986).

In Beinhocker v. Barnes Development Corp., 296 NY 925, 73 N.E.2d 41, mot. for rearg. den. 297 NY 472, 74 N.E.2d 180, the Court of Appeals found res ipsa could apply, even though in that case there is no evidence cited of notice of a defect or of a prior incident. See also, Devito v. Centennial Elevator Indus., Inc., 90 AD3d 595, 596, 933 N.Y.S.2d 871 (2nd Dept 2011), Fiermonti v. Otis Elevator Co., 94 AD3d 691, 692, [*3]941 N.Y.S.2d 657, 658 (2012), Fyall v. Centennial Elevator Indus., Inc., 43 AD3d 1103, 1104, 843 N.Y.S.2d 137, 139 (2nd Dept 2007).

In Beinhocker v. Barnes Development Corp., 296 NY 925, 73 N.E.2d 41, mot. for rearg. den. 297 NY 472, 74 N.E.2d 180, plaintiff fell and was injured when a safety interlock' device failed to function and the door opened even though the elevator was not at the floor. The elevator company had agreed to maintain the elevator and had complete charge over maintenance of the interlock device. These circumstances were held to support an inference of negligence by the elevator company, even without an indication that there had been a prior incident.

In Devito v. Centennial Elevator Indus., Inc., the Appellate Division Second Department held that plaintiff raised a triable issue of fact as to defendant elevator company's liability under the doctrine of res ipsa loquitur by submitting proof that the rapid descent, shaking, and abrupt, misaligned stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence, that the maintenance and service of the elevator was in the exclusive control of defendant elevator company, and that no act or negligence on the part of the plaintiff contributed to the happening of the accident. Devito v. Centennial Elevator Indus., Inc., 90 AD3d 595, 596, 933 N.Y.S.2d 871 (2nd Dept 2011).This was even though the defendant had established that it had no notice of the defect and there was no evidence of prior misleveling incidents cited.

In Fiermonti v. Otis Elevator Co., 94 AD3d 691, 692, 941 N.Y.S.2d 657, 658 (2012), the Court held that where the maintenance and service of an elevator was within the exclusive control of Otis, the plaintiff did not contribute to the happening of the accident, and where there was proof that the sudden mis-leveling of an elevator was an occurrence that would not ordinarily occur in the absence of negligence, those facts provided a basis for liability under the doctrine of res ipsa loquitur. Fiermonti v. Otis Elevator Co., 94 AD3d 691, 692, 941 N.Y.S.2d 657, 658 (2012). In Fiermonti, the defendant had shown that it had neither actual nor constructive notice of any defect in the elevator.

The Appellate Division in Fyall v. Centennial Elevator Indus., Inc., 43 AD3d 1103, 1104, 843 N.Y.S.2d 137, 139 (2nd Dept 2007), found that even in the absence of notice, where an elevator malfunctioned in a manner that would not ordinarily occur in the absence of negligence, where the maintenance and service of the elevator was within the exclusive control of the elevator maintenance company, and where no act or negligence on the plaintiff's part contributed to the happening of the accident, there is a basis for an inference of negligence under the doctrine of res ipsa loquitur.

KONE cites Tashjian v. Strong & Associates, 225 AD2d 907, 639 N.Y.S.2d 507 (3rd Dept 1996) for the proposition that notice is required for it to be liable for a defect in the elevator. However, while the Court in Tashijian held the elevator maintenance company not liable where it found that the defendant did not have notice, the Court did find that the defendant demonstrated that the elevator was tested regularly for misleveling, and proof was furnished to show that it performed satisfactorily. In the [*4]present case, no records were produced to show that the elevator was regularly tested and the tests showed there was no malfunction.

While in several cases in which res ipsa loquitur was applied there was evidence of prior malfunctions in the elevator, none of those cases held that prior incidents were required in order to apply res ipsa loquitur.

In Weeden v Amor Elevator Company Inc., 97 AD2d 197 (2nd Dept 1983), also cited by Defendant, an elevator jerked up and down in an abrupt manner, causing plaintiff to fall, sustaining injuries. The Court noted that there was evidence that there were prior problems with the elevator, including mis-leveling issues, problems with the opening of the doors, and the elevator skipping or stopping between floors. 97 AD2d 197, 199, 468 N.Y.S.2d 898 (1983).

After setting forth the elements of the doctrine of res ipsa loquitur, the Court

stated,

[Res ipsa loquitur] stands for the proposition "that the fact of the occurrence of [an] injury, and the surrounding circumstances, may permit an inference of culpability on the part of the defendant, make out plaintiff's prima facie case, and present a question of fact for the defendant to meet with an explanation" (1 Speiser, op. cit., § 6:53, p 323; 41 NY Jur Negligence § 87).

The Weeden Court did not base its application of res ipsa loquitur on its finding that there was evidence of prior incidents of the elevator mis-leveling and skipping floors. Rather it stated that the three elements of res ipsa had been satisfied, and it decided "[i]n accord with our decision are cases in various jurisdictions which hold that the sudden and unusual movement of an automatic elevator causing injury to a passenger warrants an inference of some negligence on the part of the defendant maintenance company". Id.

In Rogers v Dorchester Associates, 32 NY2d 553, 561, 300 N.E.2d 403, 407 (1973), the Court of Appeals found that where the elevator repair company had undertaken all maintenance on the elevator, it alone was in exclusive control of maintenance, although it was not in exclusive continuous control of the possession and operation of the elevator. The Court found that the elevator company which agreed to maintain the elevator in a safe operating condition may be liable to a passenger for failure to condition of which it had knowledge or failed to discover by reasonable care. In Rogers there had been prior incidents of malfunctions with the elevator.

In Sirigiano v Otis Elevator Company , 118 AD2d 920, 499 NYS2d 486 (3rd Dept 1986), Plaintiff fell when elevator mis-leveled. The Court reasoned that a jury could have inferred negligence because an inspection after the accident showed a broken mechanism that controlled the elevator's leveling. There was also testimony of similar mis-leveling occurrences in Sirigiano involving the same mechanism which caused Plaintiff's accident.

The Court in Sirigiano then distinguished the holding in Birdsall v Montgomery [*5]Ward & Co., 109 AD2d 969 (1985) in which an elevator maintenance company was held not liable where there were no prior incidents of malfunctioning. In Birdsall, although there was no prior evidence of a defect, there was evidence in that case which showed that the defect could have arisen so close to the accident that there would not have been time to discover the defect through an inspection. It also found that the Birdsall facts did not support the use of res ipsa as there were possible non negligent causes of the accident.

The Sirgiano Court distinguished Birdsall on the grounds that in that case the evidence showed that the defect could have occurred so close to the time of the accident so as not to have had time to discover it, even with a reasonable inspection.

Pursuant to the PM Agreement, KONE assumed complete and exclusive control of the maintenance of the elevators. The clause in the agreement that provided that KONE did not assume responsibility for LINPRO's employees' operation of the elevator does not evidence that LINPRO's employees actually operated the elevators, only that KONE agreed to train them to do so. No evidence was presented that LINPRO's employees operated the elevators. Similarly, the fact that LINPRO's employees could shut the elevators down to clean them or in emergencies is not sufficient to render KONE's control of the elevator non-exclusive.

In this case KONE assumed the duty not merely to repair the elevators but to inspect and maintain them. As part of their contract they had an employee on site Monday through Friday whose duties included inspecting the elevators as well as repairing them. The negligence alleged against KONE is not only failure to correct a defective condition, but a failure to properly inspect and discover a defective condition. Neither a lack of notice and the absence of prior incidents is fatal to a claim of a failure to properly inspect.

In Tashijian v Strong & Associates, 225 AD2d 907 (3rd Dept 1996) cited by KONE, the defendant produced work tickets and testimony from its repair technician which showed regular maintenance and inspection of the elevator, proof of annual safety checks, a diary of telephone calls which detailed the elevator's functioning, and plaintiff's testimony, all of which evidenced that the elevator was operating properly prior to the incident. Here, no evidence has been adduced to show that the elevator was inspected and found to be operating properly immediately prior to the accident, or that the defect occurred too close in time to the accident to have allowed KONE to discover it.

Here, Plaintiff has shown that KONE had exclusive control by its duty to inspect and maintain the elevator and that the misleveling would not have occurred absent negligent inspections. KONE has failed to provide a non negligent explanation for the accident in response. Dittiger v. Isal Realty Corp., 290 NY 492, 49 N.E.2d 980 (1943). KONE has failed to produce evidence that the malfunction could have gone undetected even if KONE had not been negligent in inspecting the elevator. Plaintiff has shown sufficient facts to support an inference of negligence pursuant to the doctrine of res ipsa loquitur.

LINPRO's Motion for Summary Judgment

LINPRO moves for summary judgment dismissing the complaint against it on the grounds that its duty to Plaintiff had been displaced by its agreement with KONE and that it had no notice of the defect.

Plaintiff does not oppose LINPRO's cross motion for summary judgment dismissing Plaintiff's complaint against it.

KONE agrees that LINPRO lacked notice as to the mis-leveling of the elevator, but KONE argues that it did not displace LINPRO's duty to the Plaintiff. However, as discussed above, the fact that the PM agreement excluded KONE from liability for LINPRO and its employees' operation of the of the equipment as a result of providing training with respect to the operating and safety features of the equipment was not sufficient involvement by LINPRO to vitiate the comprehensive and exclusive nature of the responsibilities assumed by KONE.Generally, a party who hires an independent contractor is not liable for the negligent acts of the contractor. In certain exceptions the owner's duty is sometimes held to be non-delegable and while blameless, the owner is liable for the independent contractor's negligence. The exceptions generally recognized involve situations where the owner (1) is under a statutory duty to perform or control the work, (2) has assumed a specific duty by contract, (3) is under a duty to keep premises safe, or (4) has assigned work to an independent contractor which the owner knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the owner. Rosenberg v. Equitable Life Assur. Soc. of U.S., 79 NY2d 663, 668, 595 N.E.2d 840, 842-43 (1992).

An owner of a premises is liable where an independent contractor is hired to maintain a premises because the duty to maintain the premises in a safe condition is non delegable. Backiel v. Citibank, N.A., 299 AD2d 504, 506, 751 N.Y.S.2d 492, 494-95 (2nd Dept 2002).

However, while LINPRO could not delegate its duty to Plaintiff, its duty is only triggered if LINPRO had notice of the condition and failed to correct it. Gordon v. Am. Museum of Natural History, 67 NY2d 836, 838, 492 N.E.2d 774, 775 (1986).LINPRO would be liable for failing to maintain the property in a safe condition only for defects of which they had actual or constructive notice.

Since no evidence was produced that LINPRO had notice of any problem with the elevator, LINPRO is entitled to dismissal of the Plaintiff's complaint against it.

WHEREFORE, Defendant KONE's motion for summary judgment is denied and LINPRO's cross motion for summary judgment is granted, and it is Ordered that the Plaintiff's complaint is dismissed as against Defendant LINPRO.

ENTER,

___________________________________

J S C