Hodges v Royal Realty Corp.

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[*1] Hodges v Royal Realty Corp. 2005 NY Slip Op 52387(U) [21 Misc 3d 1129(A)] Decided on July 16, 2005 Civil Court Of The City Of New York, New York County Scarpulla, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 16, 2005
Civil Court of the City of New York, New York County

Mindy Hodges and Clinton Hodges, Plaintiff,


Royal Realty Corp. and Schindler Elevator Company, Defendants.

126 TSN 2004

For Plaintiff:

Mark Kressner, Esq.

1937 Williamsbridge Road

Bronx, New York 10461

For Defendant Schindler:

Clauss & Sabatini, Esqs.

350 Broadway

New York, New York 10018

For Defendant Royal:

Caulfield Law Offices

140 Broadway, 19th floor

New York, New York 10005

Saliann Scarpulla, J.

In this personal injury action, defendant Royal Realty Corp. ("Royal") moves for summary judgment dismissing the complaint against it on the grounds that it cannot be liable in negligence as a matter of law became plaintiff cannot show that it had notice of the malfunctioning elevator which allegedly caused injury to plaintiff Mindy Hodges ("Mhodges") and because it had no control over the elevator that malfunctioned. Royal further argues that it should be awarded summary judgment on its cross-claims as a matter of law because it is entitled to common law indemnification by defendant Schindler Elevator Company ("Schindler"). [*2]


Royal is the managing agent for premises located at 114 West 47th Street, New York, New York. On August 2, 2000, Mhodges was a passenger on elevator one at 114 West 47th Street. Mhodges entered the elevator on the 14th floor with two other individuals. Within seconds after the doors closed, she heard a loud sound and the elevator began to fall rapidly. It appeared to Mhodges that the elevator emergency brakes attempted to engage three times, and on the third time, the elevator seemed to stop somewhere below the fourteenth floor.

After the elevator stopped, one of the other occupants of the elevator contacted the building personnel through the intercom system. After approximately forty minutes, the elevator doors opened on the tenth floor and Mhodges exited the elevator. Plaintiffs, in their complaint, allege that as a result of the elevator malfunctioning, Mhodges sustained injuries to her back and neck for which she may undergo surgery. Plaintiff Clinton Hodges alleges a cause of action for loss of consortium.

John Christian, a Royal employee and the building manager, testified at his deposition that he was in the building's office when he learned of the stopped elevator. Someone at the lobby desk informed him that there was an "entrapment" in elevator one. He told the desk employee to notify the in-house Schindler mechanic, Dennis Rodgers. He then watched the elevator on the surveillance monitor.

Christian testified that the building did not have any problems with elevator one before this incident. Christian also testified that Rodgers would come to see him everyday and talk to him about the preventative elevator maintenance. Specifically, Christian testified that:

[Rodgers] would make it a point to come see me everyday and tell me exactly what he did and if there was anything wrong with any of the elevators in the building. That's how I knew what he did. You know, and if there was any issues with any of the oars, he would tell me that, you know, what I needed to do in order to get the car, you know, corrected, or if I needed to order anything or authorize any special overtime or anything to that [sic] such or ropes needed to be changed.

Affirmation of Royal's attorney Evy Kazansky, Exhibit "E," p. 28.

Rodgers similarly testified that, prior to the incident, Schindler also did not receive any complaints concerning elevator one.

Maintenance of elevator one is governed by a service contract between the owner of 114 West 47th Street, The Durst Organization, and Schindler. Pursuant to the contract, Schindler was obligated to maintain the elevators in proper and safe operating condition, systematically inspect them and repair any defective parts. Also, pursuant to the contract, Schindler provided an on-site employee to maintain and service the elevators. However, under the heading "responsibility," the contract states: "Possession or control of the equipment shall remain with you [the Durst Organization], and you [the Durst Organization] will retain your normal responsibility and liability as owner, lessor, lessee, possessor or custodian of the equipment. You agree to at all times carefully monitor the equipment and its use and, in the event of a malfunction, operational problem, or dangerous condition, to immediately remove the unit from service, erect barriers and post warnings to prevent use of the equipment...."

Discussion [*3]

In its motion, Royal argues that it is entitled to summary judgment dismissing the complaint against it because plaintiffs cannot show that Royal had actual or constructive notice of a defect that led to the elevator malfunction. Royal also argues that pursuant to the service contract, Schindler had exclusive control over the elevator. Finally, Royal argues that, because of the existence of the service contract and the lack of proof of negligence on its part, Royal is entitled to common law indemnification from Schindler as a matter of law.

In opposition. Schindler argues that Royal had an affirmative duty to identify problems in the building and that Royal must prove it neither caused the alleged incident nor had actual or constructive notice of the any allegedly defective condition. Plaintiffs in their opposition argue that the doctrine of res ipsa loquitur applies and under that doctrine plaintiff is not required to prove notice.

The doctrine of res ipsa loquitur is an evidentiary rule which permits an inference of negligence from the nature of the act or occurrence, without the necessity of producing proof as to the specific thing which the operator did or failed to do, where the accident itself is such that in the ordinary course of events it would never have occurred in the absence of neglect of repairs, supervision, or precaution in operation on the part of the defendant charged with the responsibility for the maintenance and operation of the instrumentality and with the exclusive control thereof. New York Jurisprudence 2d, Elevators and Escalators §50 (2005).

The court may apply the doctrine where the 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; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." Weeden v. Armor Elevator Co., Inc., 97 AD2d 197, 203 (2d Dep't 1983).

The doctrine has been applied to various accidents involving elevators and escalators. See, e.g., Ardolaj v. Two Broadway Land Co., 276 AD2d 264 (1st Dep't 2000); Dickman v. Stewart Tenants Corp., 221 AD2d 158 (1st Dep't 1995). Because the doctrine of res ipsa loquitur raises an inference of negligence, in order to establish the doctrine, the plaintiff need not offer proof of the defendant's actual or constructive notice. New York Jurisprudence 2d, Elevators and Escalators §50; Parsons v. State of New York, 31 AD2d 596 (3d Dep't 1968).

Plaintiffs in this action have set forth a sufficient showing that res ipsa loquitur may apply, and Royal has failed to show, as a matter of law, that the doctrine of res ipsa loquitur does not apply. It is not disputed that the elevator abruptly dropped and remained stuck for a period of minutes. Ordinarily, elevators do not malfunction without someone's negligence. Moreover, no party has submitted any evidence to show, or even contends that, the elevator malfunction occurred as a result of any voluntary action or contribution by Mhodges.

With respect to the issue of exclusive control, the courts have held that exclusive control for purposes of res ipsa loquitur may be shared by more than one person. Whalen v. Tower 53 Condominium, 202 AD2d 267 (1st Dep't 1994). Here, the evidence submitted by the parties creates a question as to whether Royal and Schindler both had exclusive control over the elevators.

At his deposition, Christian, the Royal employee, testified that Rodgers, the Schindler employee, came to him everyday to update him regarding the elevator maintenance and repairs and told him what Royal needed to do to correct problems or order parts. This testimony may [*4]support a finding that both Royal and Schindler controlled operation of elevator one. Moreover, the service contract between the owner and Schindler does not shift all responsibility for the elevator to Schindler, and the contract does not contain an indemnification clause. Under these circumstances, plaintiffs are entitled to proceed to trial and seek to prove that Royal is liable to them under the doctrine of res ipsa loquitur.

Because this Court has not made any determination concerning liability among the parties, it is premature to render any finding concerning common law indemnification. See Donnelly v. Treeline Cos., 13 AD3d 143, 144 (1st Dep't 2004); Freeman v. National Audobon Society, Inc., 243 AD2d 608, 609 (2d Dep't 1997). The Court therefore denies that part of Royal's motion in which Royal seeks summary judgment against Schindler on its cross-claim for indemnification.

In accordance with the foregoing, it is

ORDERED that defendant Royal Realty Corp.'s motion for summary judgment is denied in its entirety.

This constitutes the decision and order of the Court.

Dated: New York, New York

July 16, 2005

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