Pares v Taino Towers

[*1] Pares v Taino Towers 2007 NY Slip Op 52145(U) [17 Misc 3d 1125(A)] Decided on October 30, 2007 Supreme Court, New York County Gische, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 30, 2007
Supreme Court, New York County

Israel Pares, Plaintiff,

against

Taino Towers, East Harlem Pilot Block-Building 4 Housing Development Fund Company, Inc., Arco Management Corp., and Horizon Elevator Co., Defendants.



100374/05

Judith J. Gische, J.

This is a personal injury action in which plaintiff Israel Pares alleges that the defendants were negligent in the ownership, operation, management, maintenance and control of the premises located at 230 East 123rd Street, New York, New York ("premises"), causing him to sustain injuries in an elevator.

The third party action is for contribution and indemnification.

Issue has been joined in the direct and third party action as to all defendants/ 3rd party defendants, except Horizon Elevator Co. The court granted a prior motion by plaintiff Pares for entry of a default judgment, on liability only, against Horizon for its failure to answer the complaint, and ordered that there be an Inquest on damages at the time of trial. Order, Gische J., 2/17/06.

East Harlem Pilot Block Building 4 HDFC, Inc. a/k/a Taino Towers and Arco Management Corp., respectively the "owner" and "property manager," now move for summary [*2]judgment dismissing all claims against them. If the claims are not dismissed, they seek summary judgment on their 3rd party claims indemnification and breach of contract claims against Midtown Elevator Co., Inc. ("Midtown" or the elevator company"). Midtown separately moves for summary judgment dismissing the 3rd party complaint.

Both motions, which were previously consolidated by the court for consideration and disposition, are timely [FN1]. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004). They are decided as follows.

Arguments presented

Mr. Pares contends that on January 10, 2002, he was a passenger in one of the elevators at the premises. The elevator "flew" down to the lobby after he pressed the button and then, as it was reaching its destination, the elevator dropped some distance with the doors slightly apart and then sprang back up again. Mr. Pares contends this violent movement caused him to fall to the floor where he sustained injuries to his upper body, head and hand. Plaintiff contends that the owner and property manager were negligent in the manner they operated, maintained, operated, etc., the elevator, by allowing an unsafe condition to remain unaddressed and that they had notice of this dangerous condition.

Mr. Pares, who was deposed, first testified that he had heard of an accident involving another elevator at the premises but did not know when. He later testified at a second EBT that a security guard who helped him off the elevator on the day of the accident told him that earlier that same day a pregnant woman had been injured in the same elevator and been taken to the hospital. The security guard allegedly told Mr. Pares that she reported the incident to the management office, but the elevator was not taken out of service. Plaintiff does not know the guard's name, or the identify of the pregnant woman. He contends he served defendants with a demand dated February 6, 2006 for this information but the defendants did not provide a response. Plaintiff contends that the defendants' motion must be denied because they have exclusive knowledge of essential facts, which are unavailable to him, thus their motion for summary judgment must be denied. The owner and property manager, contend that none of the guards witnessed the incident alleged and that it did not happen.

Plaintiff argues that because the owner of a multiple dwelling owes a duty to persons on its premises to maintain them in a reasonably safe condition, and that duty is nondelegable, even assuming the owner had a service contract with Midtown, this would not justify the owner/property owner being dismissed from this case, but only means that Midtown may be liable to the owner for damages that it may have to pay to him (plaintiff).

Plaintiff also contends that the doctrine of res ipsa loquitur is applicable to the facts of this case because an elevator will (or should not) fall unless improperly maintained, thus there is [*3]an inference of negligence which should be applied to defeat the motion at bar.

The owner and property manager contend that this action must be dismissed as to them for two reasons. First, they contend they did not have notice of a dangerous condition because non one made any complaints to them before the accident. They further argue that because they have a service contract with Midtown and Midtown had full time staff on site, any negligence was on the part of Midtown.

In support of these claims, the owner and property manager offer the deposition testimony ("EBT") of Arco's assistant property manager, Manny Diaz. Mr. Diaz testified at his EBT that he was not aware of any complaints about this elevator, or that anyone had been injured. Mr. Diaz also testified, however, that the logbooks for the period preceding the accident had been discarded in due course by the time his staff went to look for them. Mr. Diaz testified that he asked the building superintendent whether there had been any elevator complaints, and he (Mr. Algrin) reportedly told him he did not know of any.

According to Mr. Diaz, no one serviced the elevator except for Midtown and Midtown maintained full-time personnel on the premises, five (5) days a week. The owner and property manager offer the deposition testimony of Mr. Rignola, Midtown's witness, who testified that the mechanic on duty responds to shutdown calls and services the elevators. The mechanic is also required to do daily inspections. These arguments also form the basis for the alternative relief sought, which is summary judgment on the owner and property manager's 3rd party action against Midtown.

Midtown opposes the owner and property manager's motion for summary judgment to the extent these co-defendants argue that Midtown was negligent. Thus, Midtown has cross moved for summary judgment dismissing the 3rd party action for indemnification. Midtown contends that as per its service contract with the owner, it did not have "exclusive control of the elevators," as the owner and property manager claim. Midtown argues that although it was required to conduct visual examinations of the elevators to see whether certain parts needed to be repaired, its duties were detailed and limited to those parts in the contract:

"By reason of the price stated herein, the nature of the service and of the equipment and its operation by and under the supervision of the Purchaser, it is stipulated that MIDTOWN's service and responsibility are limited and restricted to the extent following:

It is agreed MIDTOWN does not assume possession, management or control of any part of the equipment, but such remains the Purchaser's exclusively as the owner (or lessee) thereof, and the purchaser, as a condition, shall indemnify and save MIDTOWN . . . harmless for any claims for injury to persons except during periods of work when and if MIDTOWN's employees actually take charge of the equipment.

MIDTOWN will respond to calls from the Purchaser for any conditions that require any adjustments or repair with the understanding that when not working in, about or on the said equipment MIDTOWN shall not be responsible for leveling of cars at landings, accidental application of car safeties, eccentricities in the operation of car doors, shaft doors, or their locking devices and for any situation that may occur that cannot be revealed by the ordinary visual examination offered by this service.

The Purchaser shall shut down the equipment immediately upon manifestation of any [*4]irregularity in operation or appearance in the equipment, notify MIDTOWN at once, and keep the equipment shut down until completion of repairs, and further, shall keep the equipment under continuous surveillance by competent personnel to detect such irregularities between periods of MIDTOWN's examinations."

Midtown contends that as per the express terms of the contract, unless it was "actually" working on an elevators, the equipment remained (contractually) within the control of the owner and property manager whose duties to keep the elevator safe, etc., were broader than Midtown's duty to make repairs. Therefore, it is Midtown's contention that because it only had to examine certain parts, but not to make sure the elevator was properly operating, its duties were limited, it never assumed "control," of the elevator, within the meaning of the contract, therefore the indemnification provisions have not been triggered, and the 3rd party action should be dismissed.

According to Mr. Rignola, who was deposed on behalf of Midtown, and employed as a supervisor, whenever there is elevator problems at Taino Towers, someone at Taino contacts the Midtown mechanic on site by radio. After the mechanic completes the service call, he files the service ticket with Midtown's office. Mr. Rignola examined service tickets prior to the date of the accident, but none were for a similar incident to that alleged.

Midtown contends that there were recurring instances of vandalism through 2001 and 2002, which Mr. Diaz testified about at his EBT, and that it was the owner and property manager's responsibility to monitor the premises and make sure vandals were caught and stopped from making such incursions.

Midtown denies that it had any contractual obligation to provide liability insurance for the benefit of the owner or property manager, as the 3rd party plaintiff's allege, therefore, Midtown contends that the breach of contract claim against it must be dismissed.

Discussion

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

A landowner is under a duty to maintain its property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party. Perez v. Bronx Park South, 285 AD2d 402 (1st dept 2001). This common law duty is tempered by a requirement that a plaintiff seeking recovery must establish that the landlord created or had actual or constructive notice of the hazardous condition which precipitated the injury. Pappalardo v. Health & Racquet Club, 279 AD2d 134 (1st dept. 2000). To constitute constructive notice, a defect must be visible and apparent, and it must have existed for a sufficient length of time prior to the accident for the owner to have discovered the defect and remedied it. Pappalardo, supra. A party injured by the owner's failure to fulfill it may recover from the owner even though the responsibility for maintenance has been transferred to another. Mas v. Two Bridges Associates by Nat. Kinney [*5]Corp., 75 NY2d 680, 687 (1990); Ortiz v. Fifth Ave. Bldg. Assocs., 251 AD2d 200 (1998).

The owner and property manager have demonstrated their prima facie entitlement to summary judgment by showing that there were no complaints about the subject elevator before the date of the accident, therefore they did not have notice of a dangerous condition. Ortiz v. Fifth Ave. Bldg. Assocs., supra. In opposition, and to support his claim that they did have notice, plaintiff presents only inadmissible hearsay about a complaint made the same day. Plaintiff's argument, that the defendants failed to respond to his discovery demands regarding the identity of the security guard on duty that day, or of the pregnant woman allegedly injured, are unavailing and do not defeat the defendants' motion.

CPLR § 3212 (f) provides that where the information necessary for a party to fully oppose a motion for summary judgment remains under the control of another party, the court may deny summary judgment so as to allow the opposing party to proceed with discovery. CPLR § 3212 (f); Lewis v. Safety Disposal System of Pennsylvania, Inc., 12 AD3d 324 (1st dept. 2004); Global Minerals and Metals Corp. v. Holme, 35 AD3d 93 (1st dept 2006) (internal citations omitted). Here, however, plaintiff filed the note of issue indicating discovery was completed. He did not bring a motion to enforce discovery or seek any other relief from the court with respect to the discovery demands which he claims the defendants ignored. Thus, he waived such discovery and the mere hope that he "may" uncover evidence that will prove his case, provides no basis, pursuant to CPLR § 3212 (f) for postponing a decision on this motion for summary judgment. Sarver v. Martyn, 161 AD2d 623 (2 Dept. 1990). Furthermore, since the defendants deny that there was any incident involving an injured pregnant woman that day, the defendants cannot be expected to produce information that does not exist. Without the security guard's testimony, there is no factual dispute to be tried about whether the owner and property manager had notice of a dangerous condition.

Any claim that the absence of log books for the relevant period is another reason to deny defendants' motion for summary judgment is rejected based upon the same legal analysis. The records appear to have been destroyed in due course and Midtown's work tickets raise no issue of fact that would tend to support plaintiff's claim that similar complaints were made about the subject elevator before the date of the accident. Shadowy semblances of issues are insufficient to defeat a motion for summary judgment.

The court has also considered plaintiff's separate argument, that this is a case in which the doctrine of res ipsa loquitur should be applied. The doctrine of res ipsa loquitur has three elements: (1) the event must be of a kind that does not ordinarily occur in the absence of someone's negligence, (2) it must be caused by an instrumentality within the exclusive control of the defendant, and (3) the plaintiff must not have affected the happening of the event by any voluntary action. Ebanks v. New York City Transit, 70 NY2d 621 (1987). Although, ordinarily, res ipsa loquitur satisfies plaintiff's duty of producing evidence sufficient to go to the jury, thereby defeating a motion by the defendant for summary judgment, this is not a res ipsa case for the following reasons. First, plaintiff has asserted no direct claims against Midtown. There is no factual dispute that the elevator was not in the exclusive control of the owner and property manager since they had a service contract with the elevator company. Further the elevator was continuously available to, and used by, the public at large. There is evidence of some vandalism to the elevator preceding the accident. See: Dermatossian v. New York City Transit Authority, 67 NY2d 219 (1986). Thus, while plaintiff might be able to support the first and third prongs of [*6]this doctrine, the second prong is not present, and application of the doctrine is not warranted.

Based upon the foregoing, and for the reasons articulated, the owner and property manager are entitled to summary judgment, dismissing the complaint against them. Since the 3rd party action is for indemnification and breach of contract and plaintiff did not amend his complaint to assert direct claims against Midtown, Midtown's motion for summary judgment dismissing the 3rd party complaint must be granted as well.

Conclusion

The motion by defendants East Harlem Pilot Block Building 4 HDFC, Inc. a/k/a Taino Towers and Arco Management Corp. for summary judgment dismissing the complaint against them is granted and the claims by plaintiff against them are hereby dismissed.

The motion by 3rd party defendant Midtown Elevator Co., Inc. for summary judgment dismissing the 3rd party action against them for indemnification and breach of contract is also dismissed.

Since the court previously found Horizon Elevator liable, the plaintiff's claims against this defendant for damages are referred to a Special Referee who will conduct the Inquest. Plaintiff shall serve a copy of this order upon the Office of the Special Referee within Thirty (30) Days from the date of entry so that the reference can be assigned.

In accordance with the foregoing,

It is hereby

Ordered that defendants East Harlem Pilot Block Building 4 HDFC, Inc. a/k/a Taino Towers and Arco Management Corp. for summary judgment dismissing the complaint against them is granted and the claims by plaintiff against them are hereby dismissed; the Clerk shall enter judgment in favor of defendants East Harlem Pilot Block Building 4 HDFC, Inc. a/k/a Taino Towers and Arco Management Corp. against plaintiff Israel Pares; and it is further

Ordered that defendant Midtown Elevator Co., Inc.'s motion for summary judgment dismissing the 3rd party complaint against it is granted and the claims by defendants/3rd party plaintiffs East Harlem Pilot Block Building 4 HDFC, Inc. a/k/a Taino Towers and Arco Management Corp. plaintiff against them are hereby dismissed; the Clerk shall enter judgment in favor of defendant Midtown Elevator Co., Inc. against defendants/3rd party plaintiffs East Harlem Pilot Block Building 4 HDFC, Inc. a/k/a Taino Towers and Arco Management Corp; and it is further

Ordered that the plaintiff's claims for damages against Horizon Elevator Co. (who has defaulted in this action) are hereby referred to a Special Referee who will conduct the Inquest; Plaintiff shall serve a copy of this order upon the Office of the Special Referee within Thirty (30) Days from the date of entry so that the reference can be assigned; and it is further

Ordered that any relief requested but not expressly addressed has been nonetheless been considered and is hereby denied; and it is further

Ordered that this shall constitute the decision and order of the court.

Dated:New York, New York

October 30, 2007

So Ordered: [*7]

_________________________

Hon. Judith J. Gische, JSC Footnotes

Footnote 1:Although Midtown contends the owner and property manager's motion is untimely, this is based upon a 60 day deadline. The preliminary conference order, however, provides that a motion for summary judgment has to be made "as per the CPLR." CPLR 3212 provides that where the court does not set a shorter date, then such motion shall be made "no later than one hundred and twenty days after the filing of the note of issue . . ." The motion by the owner and property manager was made within 120 days after the note of issue which was filed on December 22, 2006.