Balant v Fifth Ave. 58/59 Acquisition Co., LLC

[*1] Balant v Fifth Ave. 58/59 Acquisition Co., LLC 2007 NY Slip Op 52161(U) [17 Misc 3d 1126(A)] Decided on October 18, 2007 Supreme Court, New York County Tolub, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2007
Supreme Court, New York County

Jerzy Balant and IRENA BALANT, Plaintiffs,

against

Fifth Avenue 58/59 Acquisition Co., LLC, "JOHN DOE," (intended to be the operator of the freight elevator of the building that plaintiff was in on July 2, 2004, whose name is presently unknown) and QUALITY BUILDING SERVICES CORP., Defendants.



113097/04

Walter Tolub, J.

Motion sequence numbers 002 and 003 are hereby consolidated for disposition.

This is an action to recover damages sustained by a worker when he tripped and fell while exiting a freight elevator located at 767 Fifth Avenue (the building), New York, New York on July 2, 2004. In motion sequence number 002, defendant and third-party plaintiff Fifth Avenue 58/59 Acquisition Company, LLC (Fifth Avenue) moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs Jerzy Balant (plaintiff) and Irena Balant's complaint, as well as any cross claims against it. In motion sequence number 003, plaintiff moves for an order (a) granting partial summary judgment in his favor as to liability against defendant and third-party defendant Quality Building Services Corporation (QBS); (b) striking the affirmative defenses that plaintiff shares any comparative fault for his accident; and (c) setting this matter down for an immediate trial on the sole issue of plaintiff's damages. Fifth Avenue cross-moves, pursuant to CPLR 3212, for conditional summary judgment on the ground of common-law indemnification as against QBS.

BACKGROUND[*2]

On the date of plaintiff's accident, plaintiff was employed as an asbestos handler by non-party PAL Environmental Safety Corporation (PAL). Defendant and third-party plaintiff Fifth Avenue owned the building where plaintiff's accident occurred. Non-party Macklowe Management Company, Inc. (Macklowe) served as Fifth Avenue's managing agent and was responsible for the overall activities and daily functioning of the building. Macklowe hired PAL to remove asbestos from the building. The asbestos removal project took place after hours, because of the toxic nature of the work.

Roderick Johnson (Johnson), the general manager of the building, testified that Mackowe hired defendant and third-party defendant QBS to perform certain cleaning services for the building, in addition to providing operators for the building's two high-rise elevators and two hydraulic freight elevators. Johnson stated that he was not aware of any complaints or any searches that might have been performed to see if there were any complaints regarding the manner in which QBS personnel operated the elevators. Johnson also stated that Otis Elevator Company was responsible for maintaining all vertical transportation in the building pursuant to a service contract.

Plaintiff testified that, at the time of his accident, he had been assigned to perform asbestos removal on the 29th floor of the building, which was in the process of being demolished. Plaintiff explained that it was his job to take trolleys filled with asbestos waste down to the lobby by a passenger elevator. Once at the lobby level, plaintiff would push the trolleys into a large hydraulic freight elevator to bring them down to the basement level, where they were unloaded before being brought back up to the lobby level. Plaintiff explained that the freight elevator, which was operated manually, closed horizontally from the top and bottom.

Plaintiff testified that, immediately prior to his accident, he and his supervisor had pushed four trolleys into the freight elevator. As he was exiting the freight elevator on his way to push in more trolleys, he tripped and "fell out from the elevator" (Plaintiff's Notice of Motion, Exhibit D, Balant Deposition, at 48-49). Plaintiff noted that, although he did not see the elevator doors begin to close before his accident, he did look back immediately after his accident and observed that the elevator doors were already in the process of closing.

In maintaining that it was the elevator doors that caused him to trip, plaintiff also specified that he "tripped over something, probably the doors, and fell out of the elevator" (id. at 49). Plaintiff also stated that the doors were "not supposed to come up and they did" (id. at 50-51). In addition, plaintiff testified that there was nothing in the vicinity of the area where he tripped, such as any boxes or other obstacles, that he would have to step over in order to exit the freight elevator.

Plaintiff also noted that the freight elevator operator shook his hand and apologized to him when they met later downstairs in the garage Plaintiff stated that the reason that the elevator operator apologized to him was because he thought that plaintiff's accident was his fault.

Arkadiusz Wisniewski (Wisniewski), plaintiff's supervisor, was also in the elevator at the time of plaintiff's accident and observed plaintiff's accident. Wisniewski testified that the 30-foot-long by 20-foot-wide hydraulic freight elevator, which had both front and back doors, was operated exclusively by employees of QBS. Wisniewski described the QBS employees as wearing black uniforms resembling tuxedos. In addition, the QBS uniforms had badges with the letters "QBS" written on them. [*3]

Wisniewski testified that, at the time of plaintiff's accident, with four carts already in the elevator, and with the elevator operator sitting at the far control panel behind the loaded carts, plaintiff exited to load more carts. Wisniewski stated that, as plaintiff was walking out of the elevator, the elevator operator pushed the door-close button, causing the top and bottom doors to begin to shut before plaintiff had an opportunity to avoid tripping on the bottom door. Wisniewski explained that plaintiff did not have enough time to stop, as he was already in motion at the time the elevator doors began to close.

Wisniewski opined that, as "the elevator operator was sitting by the front door when we were loading from the back, his view may have been obstructed" (Plaintiff's Notice of Motion, Exhibit A, Wisniewski Deposition, at 21). After the accident, Wisniewski asked the elevator operator why he closed the doors, and the elevator operator had no explanation, but he did apologize. Wisniewski stated that he spoke again to the elevator operator that evening, and the operator apologized again.

Wisniewski prepared a workers' compensation accident report based on his personal observations. In this report of July 2, 2004, Wisniewski identified the freight elevator gate doors to be the object that directly injured plaintiff, and he noted that plaintiff was caused to fall and sustain injury when "the building freight operator was closing the doors (gate open up and down)" (Plaintiff's Notice of Motion, Exhibit F, Workers' Compensation Accident Report).

DISCUSSION

" The proponent of a summary judgment motion 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'" (Santiago v Filstein, 35 AD3d 184, 185-186 [1st Dept 2006], quoting Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; DeRosa v City of New York, 30 AD3d 323, 325 [1st Dept 2006]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Housing Corporation, 298 AD2d 224, 226 [1st Dept 2002]).

PLAINTIFF'S COMMON-LAW NEGLIGENCE CLAIM AS AGAINST FIFTH AVENUE

"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty, a breach of that duty, and that the breach of such duty was the proximate cause of his or her injuries" (Marasco v C.D.R. Electronics Security & Surveillance Systems Company, 1 AD3d 578, 579 [2d Dept 2003]; Zavaro v Westbury Property Investment Company, 244 AD2d 547, 547-548 [2d Dept 1997]). "An owner of realty owes a duty to maintain the property in a reasonably safe condition" (Zavaro v Westbury Property Investment Company, 244 AD2d at 548; Basso v Miller, 40 NY2d 233, 241 [1976]).

Here, as owner of the building, Fifth Avenue owed a duty of care to plaintiff to provide a safe freight elevator free from defects. However, as evidence in the record clearly establishes that plaintiff's accident was caused, not by a defect in the elevator itself, but by the negligent operation of the elevator doors by a QBS elevator operator, defendant Fifth Avenue did not breach its duty of care (see Conway v Grand Rental Station/Storage Land, 295 AD2d 224, 225 [*4][1st Dept 2002] [defendant's alleged negligence was not a substantial cause of plaintiff's fall over a truck's elevated tail flap, where tail flap was in good working order when plaintiff fell, the tail flap was operated manually and its position was independent of the hydraulic system of the liftgate]). In addition, as the elevator was not shown to be defective in any way, the elevator did not constitute a trap or a snare (see Martin v Lafayette Morrison Housing Corporation, 31 AD3d 300, 301 [1st Dept 2006]). It should be noted that plaintiff did not offer any evidence, other than speculation, to raise a bona fide issue as to how his accident occurred (see Ernest v Pleasantville Union Free School District, 28 AD3d 419, 419 [2d Dept 2006]).

Although plaintiff argues that defendant Fifth Avenue was negligent in not having a safety warning system in place to notify elevator passengers when the doors were opening and closing, plaintiff fails to present any evidence whatsoever that such a system was necessary or required in this case. In addition, plaintiff has not pleaded any specific code violations in this regard.

Even in the event that plaintiff had established a defect in the subject freight elevator, Fifth Avenue would still be entitled to summary judgment, as plaintiff has not shown that Fifth Avenue created or had actual or constructive notice of the existence of an allegedly dangerous condition that caused his accident (see Cruceta v Funnel Equities, 18 AD3d 693, 694 [2d Dept 2005]; Labella v Willis Seafood, 296 AD2d 382, 382 [2d Dept 2002]).

Further, contrary to plaintiff's assertions, Fifth Avenue cannot be held responsible for the negligent acts of the QBS employee who manually operated the elevator. "As a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work" (Saini v Tonju Associates, 299 AD2d 244, 245 [1st Dept 2002]; Adams v Hilton Hotels, Inc., 13 AD3d 175, 177 [1st Dept 2004]). "Control of the method and means by which the work is to be done ... is the critical factor in determining whether one is an independent contractor or an employee for the purposes of tort liability" (Berger v Dykstra, 203 AD2d 754, 754 [3d Dept 1994]).

"The matter usually presents a question of fact, but when the evidence in the record on the issue of control is undisputed, the matter may properly be determined by the court as a matter of law" (id.; Lazo v Mak's Trading Company, 199 AD2d 165, 166 [1st Dept 1993] affd 84 NY2d 896 [1994]). "However, the mere retention of general supervisory powers over independent contractors cannot be a basis for the imposition of liability for their acts" (Lazo v Mak's Trading Company, 199 AD2d at 167; Melbourne v New York Life Insurance Company, 271 AD2d 296, 297 [1st Dept 2000]).

Here, there is no evidence in the record that defendant Fifth Avenue had the ability to supervise, control or direct the actions of the subject QBS elevator operator, so as to be held vicariously liable for plaintiff's accident. Building manager Johnson stated that Fifth Avenue did not have any personnel who were regularly onsite at the building. Moreover, language in the service contract between Macklowe and QBS states that "QBS is responsible for all work and for the means and methods it employs, and will supervise, direct and coordinate all the work at all times to carry out its responsibility" (Defendant QBS's Affirmation in Opposition to Motions, Exhibit A, QBS Cleaning Services Contract, at 5).

Although there are exceptions to the rule that a principal is not liable for the acts of an [*5]independent contractor "where the employer is negligent in selecting, instructing or supervising the independent contractor; where the independent contractor is hired to do work that is inherently dangerous; and where the employer bears a specific nondelegable duty [internal quotations and citations omitted]" (Saini v Tonju Associates, 299 AD2d at 245; Adams v Hilton Hotels, Inc., 13 AD3d at 177), none of these exceptions is applicable to the case at bar. Thus, Fifth Avenue is entitled to summary judgment dismissing plaintiff's common-law negligence claim as against it.

PLAINTIFF'S COMMON-LAW NEGLIGENCE CLAIM AS AGAINST QBS

Here, the record is clear that plaintiff's accident was caused by the negligent operation of the freight elevator doors by a QBS elevator operator, and not by any defect in the freight elevator itself or by any contributory negligence on the part of plaintiff. In a March 3, 2006 response to a compliance conference order, dated February 17, 2006, QBS stated that, despite undertaking a further search of its records, QBS was "not in possession of any additional records, which would identi[f]y the operator of the subject freight elevator and/or the individuals who worked on July 2, 2004, through the morning of July 3, 2004" (Defendant Fifth Avenue's Reply Affirmation to Opposition of QBS, Exhibit A, QBS Response to Compliance Conference Order).However, although the identity of the elevator operator who caused plaintiff's accident is still a mystery, it is uncontested that QBS provided the operators for the freight elevators in the building, as well as the freight elevator that is the subject of this action. In addition, deposition testimony indicates that QBS also trained and supervised these elevator operators.

Branka Ljusic (Ljusic), QBS's Director of Operations and the project manager on the date of plaintiff's accident, testified that, pursuant to contract, QBS provided porters to operate the two freight elevators in the building, including the one that was involved in plaintiff's accident, though QBS had no records to indicate which porters were assigned to which elevators.

Keith Roach (Roach), a QBS porter/elevator operator employed at the building for the past 19 years, testified that QBS trained its employees in elevator operation, and that he was one of the people who trained them. In addition, a QBS work order, dated July 2, 2004, indicates that QBS provided the elevator operators on the date of plaintiff's accident.

In addition, evidence in the record indicates that it was the negligence of the QBS elevator operator that caused plaintiff's trip and fall. Roach stated that the operator of the elevator, who was sitting at the time of plaintiff's accident, was required to remain standing in the elevator. He was also responsible for making sure that all loaded material and persons were either fully inside or outside of the elevator before pushing the button to close the doors.

Plaintiff testified that there was nothing else in the vicinity of his accident that might have instead been the cause of his accident. Immediately after he fell, plaintiff turned back and noticed the freight elevator doors already in the process of closing. Most importantly, however, both plaintiff and Wisniewski, who witnessed plaintiff's accident, testified that the subject elevator operator apologized to plaintiff, thus acknowledging his role in plaintiff's accident. As plaintiff has sufficiently established that QBS created the hazard that proximately caused his accident, plaintiff is entitled to partial summary judgment in his favor as to liability on his common-law negligence claim as against QBS.

PLAINTIFF"S LABOR LAW § 241 (6) CLAIM AS AGAINST FIFTH AVENUE AND QBS

Plaintiff's Labor Law § 241 (6) claim as against defendants Fifth Avenue and QBS must [*6]fail, as plaintiff has not alleged a specific Industrial Code violation in his moving papers. As such, defendant Fifth Avenue is entitled to summary judgment dismissing plaintiff's Labor Law § 241 (6) claim as against it. For the same reason, plaintiff is not entitled to partial summary judgment in his favor as to liability on his Labor Law § 241 (6) claim as against defendant QBS.

In addition, as defendant and third-party plaintiff Fifth Avenue is entitled to summary judgment dismissing plaintiff's complaint and cross claims as against it, it is not necessary to address Fifth Avenue's cross motion for summary judgment declaring that defendant and third-party defendant QBS has a common-law duty to indemnify Fifth Avenue, as the issue is moot.

CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that defendant and third-party plaintiff Fifth Avenue 58/59 Acquisition Company, LLC's (Fifth Avenue) motion, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs Jerzy Balant and Irena Balant's complaint and all cross claims against it is granted, and the complaint and all cross claims are severed and dismissed as against this defendant, and the Clerk is ordered to enter judgment in favor of this defendant, with costs and disbursements as taxed by the Clerk; and it is further

ORDERED that the part of plaintiffs' motion, pursuant to CPLR 3212, granting partial summary judgment in their favor as to liability against defendant and third-party defendant Quality Building Services Corporation (QBS) on their common-law negligence claim is granted; and this matter is to be set down for an immediate trial on the sole issue of plaintiffs' damages; and it is further

ORDERED that the part of plaintiffs' motion, pursuant to CPLR 3212, granting partial summary judgment in their favor as to liability against defendant QBS on their Labor Law § 241 (6) claim is denied; and it is further

ORDERED that defendant and third-party plaintiff Fifth Avenue's cross motion, pursuant to CPLR 3212, for conditional summary judgment on the ground of common-law indemnification as against QBS is denied as moot; and it is further

ORDERED that the Clerk shall enter judgment accordingly; and it is further

ORDERED that the remainder of the action shall continue.

Counsel for the parties are reminded that they are to appear for mediation, as scheduled, on November 7, 2007.

This constitutes the decision and order of the court.

DATED: ______________

ENTER:

____________________

J.S.C.