Connolly v Samaritan Found. Inc.

[*1] Connolly v Samaritan Found. Inc. 2017 NY Slip Op 50191(U) Decided on February 7, 2017 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2017
Supreme Court, Queens County

Theresa Connolly, Plaintiff,

against

Samaritan Foundation Inc., SAMARITAN VILLAGE, INC. and ALLIANCE ELEVATOR COMPANY, INC., Defendants. ALLIANCE ELEVATOR COMPANY, INC., Third-Party Plaintiff, SAMARITAN VILLAGE, INC., Third-Party Defendant.



704183/2013
Robert J. McDonald, J.

The following electronically filed documents read on this motion by defendant/third-party plaintiff ALLIANCE ELEVATOR COMPANY, INC. (Alliance) for an Order pursuant to CPLR 3212 granting summary judgment to Alliance and dismissing plaintiff's second amended complaint in its entirety and all cross-claims and/or counterclaims asserted against Alliance; and on this cross-motion by defendants SAMARITAN FOUNDATION INC. and SAMARITAN VILLAGE, INC. (collectively hereinafter Samaritan) for same:Papers

Numbered

Notice of Motion-Affidavits-Exhibits-Memo. of Law EF 251 - 288

Notice of Cross-Motion-Affidavits EF 289 - 291

Affirmation in Opposition-Exhibits-Memo. of Law EF 292 - 296

Samaritan's Reply Affirmation EF 297 - 298

Alliance's Reply Affirmation [FN1] EF 300 - 30

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on November 6, 2012 when she fell as she was exiting an elevator at the premises located at 138-02 Queens Boulevard, Briarwood, NY 11435. The premises are owned by defendant Samaritan Foundation Inc. (Samaritan Foundation) and managed by defendant Samaritan Village, Inc. (Samaritan Village). Alliance had an elevator maintenance contract with Samaritan Village dated December 24, 2008.

This action was commenced by filing a summons and complaint on September 19, 2013. Samaritan Foundation joined issue by service of a verified answer on October 30, 2013. On November 30, 2013, plaintiff filed a supplemental summons and amended complaint, adding Alliance as a defendant. Samaritan Foundation served an answer to the amended complaint on December 10, 2013. On December 12, 2013, Alliance joined issue by serving an answer to the amended complaint. Alliance then commenced a third-party action against Samaritan Village on October 22, 2014. Samaritan Village served a verified answer on November 20, 2014. Plaintiff then sought, and was granted, leave to file and serve a second supplemental summons and second amended complaint, naming Samaritan Village as a direct defendant. Samaritan served a verified answer to the second amended complaint on August 11, 2016. Alliance served its answer on August 22, 2016. Alliance now moves for summary judgment.

In support of the motion, Alliance submits an affirmation from counsel, Pauline A. Mason, Esq.; affidavits from Paul Peach; Samaritan Village's Incident Report Form; affidavits from James Corcoran; Alliance's service records for a period of two years prior to the date of the incident and six months after; a copy of the elevator maintenance contract and proposal for repairs and modernization; a copy of plaintiff's verified bill of particulars; copies of the transcripts of the examinations before trial of plaintiff, James Corcoran on behalf of defendant, non-party witness Igor Ignatenko; Renee Schaeffer on behalf of Samaritan Village, and Robert Casalaspro on behalf of Samaritan Village; a copy of the note of issue; copies of the prior court orders; and copies of the pleadings. Alliance also submits an expert affidavit from John Menville.

Samaritan's counsel, Lauren E. Bryant, Esq., cross-moves for summary judgment, adopting the statements and arguments set forth in Alliance's motion.

Plaintiff appeared for an examination before trial on July 25, 2014. She visited the building known as Samaritan Village on November 6, 2012, Election Day, to vote. She walked to the elevator, the doors were open. She observed a gentleman seated on a chair inside of the elevator cab, behind the car operating panel. The car operating panel is located on the right side when entering the elevator. As she walked into the elevator, she did not observe any misleveling. When the elevator arrived at the second floor, the doors opened, and she exited the elevator without a problem. After voting, she returned to the elevator. The elevator arrived at the floor and its doors opened normally. She entered the elevator without any difficulty. She did not notice whether the elevator cab floor was level with the second floor hallway. The elevator descended to the lobby and came to a stop. The doors opened normally. Two people exited before her without difficulty. She took one step, and as she took her second step, the incident occurred. She felt her foot catch on something and then she started to fall. The woman who was in front of her put her hands out and broke her fall. She fell onto her right side onto the lobby floor. As she was lying on the floor, she looked back at the elevator doorway and saw that the elevator was two inches or more below the floor level. Approximately three or four minutes after the incident, the elevator doors closed.

Renee Schaeffer on behalf of Samaritan Village appeared for an examination before trial on June 17, 2015. She was stationed at the reception desk in the lobby during the incident. She could see the elevator from the reception desk. Prior to the incident, she did personally observe misleveling events. No one made any complaints to her about the elevator. She did not observe anyone experiencing any difficulties entering or exiting the elevator at the lobby. She did not see anyone fall while entering or exiting the elevator. Someone told her that plaintiff fell and asked her to call an ambulance. She was told by David Silver, a Samaritan Village Director who was in the lobby, not to call an ambulance unless the person who fell requested it. She was given a form by her co-worker, Christine Alicea, to prepare an incident report. She prepared the report and submitted it to human resources.

Igor Ignatenko, a maintenance supervisor for Samaritan Village during the relevant time period, appeared for an examination before trial on January 12, 2016. He testified that in anticipation of use of the building by the New York State Board of Elections, the elevator was checked to make sure that it [*2]was working properly. The elevator service on the day of the incident was limited to the lobby and second floor. This was accomplished by physically locking out the basement and third and fourth floors. He did not receive any complaints about the leveling of the elevator on the date of the incident. He learned of the incident the next day when one of the receptionists told him. After he was told about the incident, he rode the elevator several times in both directions to check its leveling. He visually checked the relationship between the elevator cab sill and the hallway sill. He additionally ran his foot across the elevator's threshold. He found nothing wrong with the elevator's leveling on either the lobby or second floors. While working at Samaritan, he personally observed the elevator mislevel at least once a month. Sometimes the misleveling would be half an inch and sometimes up to three inches. He would call the elevator maintenance company when there was more than a half inch between the elevator and the floor. Generally, prior to 2012, the elevator would be out of service for a few hours every month because of misleveling. Prior to 2012, people fell because of misleveling a few times. Twice Alliance serviced the elevator for misleveling. Three years before the accident, he submitted a proposal to partially upgrade the elevator, including the leveling functions. Samaritan rejected the proposal.

Robert Calaspro, Samaritan Village's operations coordinator, testified that Alliance did not come to the building on the date of the incident. In the twenty three years that he worked at Samaritan Village, he observed the elevator mislevel four or five times. The greatest misleveling distance he observed was an inch below the floor.

Paul Peach, an employee of Alliance at the time of the incident, submits an affidavit affirming that he was assigned to a maintenance route which included the subject premises. On May 14, 2012, he performed maintenance and examination of the subject elevator. He responded to a service call on June 27, 2012, which did not involve leveling of the elevator. The Armor MV4 unit had shorted out. He returned on June 28, 2012 with replacement pieces. He did not make any adjustments to the leveling of the elevator. He examined the elevator on August 7, 2012, and the elevator was functioning properly. After the incident, he visited the building on November 15, 2012 to perform maintenance on the elevator. He was not told by anyone at the building about the subject incident. No complaints about the elevator were reported to him. He examined the elevator by riding it and checking the stopping and leveling on each floor. The elevator operated and functioned properly. He affirms that Alliance did not have any service calls for the date of the incident. Annexed to his [*3]affidavit is a copy of the work tickets and the online history report for the subject elevator.

Alliance also submits the expert affidavit of John Menville. Mr. Menville identifies the documents he reviewed regarding the subject incident. He notes that a New York City mandated Category 1 elevator inspection was performed on March 16, 2012. This inspection would include checking the elevator's door operation and leveling. Following this inspection, the inspector prepared an elevator inspection test report. While the inspection was unsatisfactory, none of the violating conditions noted within the report involved the leveling or stopping accuracy of the elevator. Mr. Menville opines that based upon his inspection of the subject elevator, his review of the documents and materials provided to him, and his experience, Alliance's servicing and repairs were reasonable and proper. He also opines that there is no evidence that the elevator's controller, selector and/or MV-4 stepper unit were not operational or malfunctioned in any way on the date of the incident, due to any mechanical defect.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

"An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found" (Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973]; see Koch v Otis El. Co., 10 AD2d 464 [1st Dept. 1960]). An inference of negligent inspection and repair in the maintenance of an elevator may be drawn from evidence that the elevator doors previously malfunctioned (see Fanelli v Otis El. Co., 278 AD2d 362 [2000]; Liebman v Otis El. Co., 127 AD2d 745 [2d Dept. 1987]). To establish a prima facie entitlement to judgment as a matter of law, movant has the burden to demonstrate that it did not have actual or constructive notice of a condition that would cause the elevator to mislevel, and that it did not fail to use reasonable care to correct this condition of which it should have been aware (see Reed v Nouveau El. Indus., Inc., 123 AD3d 1102 [2d Dept. 2014]; Tucci v Starrett City, Inc., 97 AD3d 811 [2d Dept. 2012]; Hall v Barist El. Co., 25 AD3d 584 [2d Dept. 2006]; Carrasco v Millar El. Indus., 305 AD2d 353 [2d Dept. 2003]). The same burden is upon Samaritan (see Green v City of [*4]New York, 76 AD3d 508 [2d Dept. 2010]).

Based on the above testimony and affidavits, movants contend that plaintiff has failed to demonstrate any notice of any prior condition which resulted in the alleged incident. Having failed to show notice, and having failed to show any defect in the operation of the elevator, movants argue that plaintiff is unable to make out her prima facie case of negligent maintenance (citing Issac v 1515 Macombs, LLC, 84 AD3d 457 [1st Dept. 2011]; Feblot v New York Times Co., 32 NY2d 486 [1973]; Farmer v Central Elev., 255 AD2d 289 [2d Dept. 1998]). Movants also argue that plaintiff cannot satisfy any of the three required elements necessary to invoke res ipsa loquitur because, inter alia, she did not see the elevator mislevel at the time of the incident and does not know what her foot came in contact with prior to the fall. Additionally, Alliance contends that it did not exert exclusive control over the elevator since a gentleman was operating the elevator on the day of the incident.

Initially, plaintiff argues that the maintenance and service records are inadmissible, and as Mr. Menville relied upon such records to form his opinion, his expert opinion is also inadmissible. This Court finds that the records are admissible. The affidavits and testimony, including the affidavit of Paul Spedale, establish that the records for the subject elevator were maintained and kept in the ordinary course of Alliance's business. Thus, the records are admissible under the business records exception to the hearsay rule.

In opposition, plaintiff submits an affirmation from counsel, Michael C. Beatty, Esq.; her own affidavit; an expert affidavit from Patrick A. Carrajat; and Accessibility Guidelines for Buildings and Facilities.

Mr. Carrajat identifies the materials he reviewed in preparing his affidavit. He notes that the subject elevator failed inspection by the New York City Department of Buildings, Elevator Division in 2008, 2010, 2011, and on November 26, 2012. The subject elevator was also found unsatisfactory as a result of its annual safety inspection in 2008, 2009, 2010, 2011, and on March 16, 2012. He notes that although Mr. Menville states that there were no leveling complaints two years prior to the incident, the replacement of the internal contact block on June 28, 2012 and the re-grooving of the traction sheave on March 16, 2012 are indicative of defects that cause misleveling. He concludes that, inter alia, the type of misleveling that occurred on the date of the incident would not have occurred had the elevator been properly maintained and serviced and that the [*5]misleveling was the result of one, or a combination of, the elevator parts malfunctioning. He further opines that the upgrade of the elevator outlined by the January 29, 2009 proposal would have improved the elevator's ability to stop level or within a quarter of an inch of the floor.

Upon a review of the motion, cross-motion, opposition, and replies thereto, this Court finds as follows:

Movants failed to establish a prima face case of entitlement to judgment as a matter of law. Here, Mr. Ignatenko testified that he personally observed the elevator mislevel at least once a month. As such, Samaritan failed to demonstrate that it lacked notice regarding the misleveling of the subject elevator. Although, Mr. Peach affirms that the June 28, 2012 service call was not for misleveling, such statement contradicts Mr. Ignatenko's testimony, and at the very least, creates an issue of fact as to whether Alliance had constructive notice of the elevator misleveling and whether Alliance failed to use reasonable care to discover and correct a condition which it ought to have found (see Miguel v 41-42 Owners Corp., 57 AD3d 488 [2d Dept. 2008]; Oxenfeldt v 22 N. Forest Ave. Corp., 30 AD3d 391 [2d Dept. 2006]).

Even if movants did establish a prima facie case, the history of previous misleveling events coupled with Alliance's undertaking to perform all inspection and maintenance is sufficient for the jury to infer negligence (see Burgess v Otis El. Co., 114 AD2d 784 [1st Dept. 1985], aff'd 69 NY2d 623 [1986]; Lackowitz v City of Yonkers, 29 AD3d 744 [2d Dept. 2006]; Lerner v Luna Park Hous. Corp., 19 AD3d 553 [2d Dept. 2005]). Moreover, Alliance failed to conclusively establish that it took reasonable care in inspection and maintenance designed to prevent such misleveling problems. Mr. Menville, Alliance's expert, identified several components that were involved with leveling, including the MV-4 stepper unit, selector, vanes attached to the hoist way wall, and the leveling up and down switches. Mr. Carrajat, plaintiff's expert, added the generator brushes, hoist way-motor brushes, inductor switches, internal contact block, traction sheave grooving, and the clutch mounted to the cab door. The inspection and maintenance records from Alliance do not include any entries reflecting the inspection or maintenance of any of these components identified by Mr. Carrajat or Mr. Menville. Additionally, Mr. Peach never affirmed that he regularly inspected and maintained any of the parts identified by Mr. Carrajat. Although Mr. Peach affirmed that part of his inspection included riding the elevator and examining whether it stopped at an even level, Mr. Carrajat opined that considering the elevator's history of misleveling, riding the elevator [*6]without inspecting the specific parts is inadequate. Based on the two expert affidavits, at the very least an issue of fact exists as to whether such inspection is good custom and practice (see Burgess v Otis El. Co., 114 AD2d 784 [1st Dept. 1985], aff'd 69 NY2d 623 [1986]). Moreover, any discrepancies in the expert affidavits are an issue of credibility which is for a jury to determine (see Francis v Basic Metal, 144 AD2d 634 [2d Dept. 1988]).

Plaintiff's claims are also based on the theory of res ipsa loquitur. Since this Court has already determined that an issue of fact exists regarding whether movants had notice of the alleged defective condition in the subject elevator, this Court need not determine whether res ipsa loquitur is applicable. In any event, res ipsa loquitur is appropriate "where a plaintiff establishes the following conditions: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (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 of the plaintiff" (Weeden v Armor El. Co., 97 AD2d 197, 203 [2d Dept. 1983]). The exclusivity requirement is met where a building owner relied on the elevator maintenance company's expertise to inspect and maintain the elevators in a reasonably safe operating condition pursuant to a service contract (see Gurgess v Otis El. Co., 114 AD2d 784 [1st Dept. 1985]). Moreover, any claim that plaintiff's actions contributed to the cause of this accident is a question of comparative negligence to be determined by a jury. Based on the testimony and expert affidavits, this Court finds that Alliance did not present a basis to preclude the application of res ipsa loquitur as Alliance never demonstrated that but for its own negligence the accident would not have happened.

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that defendant/third-party plaintiff ALLIANCE ELEVATOR COMPANY, INC.'s motion for summary judgment is denied; and it is further

ORDERED, that defendants SAMARITAN FOUNDATION INC. and SAMARITAN VILLAGE, INC.'s cross-motion for summary judgment is denied; and it is further

ORDERED, that this matter shall remain on the Trial Scheduling Part's Calendar for May 4, 2017.

Dated: Long Island City, NY

February 7, 2017

ROBERT J. MCDONALD

Footnotes

Footnote 1:After a phone conference with counsel for all parties, this Court permitted Alliance to submit a late reply due to unforseen circumstances regarding its expert witness.