Bryant v Boulevard Story. LLC
Annotate this Case
Download PDF
Bryant v Boulevard Story. LLC 2010 NY Slip Op 33897(U) July 9, 2010 Supreme Court, Bronx County Docket Number: 301724/08 Judge: Mark Friedlander Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Jul 19 2010 Bronx County Clerk NEW YORK SUPREME COURT - COUNTY OF BRONX PART IA-25 ,. " .!'' .,<9' .( , MYRTLE BRYANT, Plaintiff, I J?ECISION/ORDER Jlndex No. 301724/08 ' -againstBOULEY ARD STORY, LLC and UPLIFT ELEV ATOR INC Defendants. ' \Present: \HON. MARK FRIEDLANDER 'tJ!! J.S.C. '·"' '-· . 't<~"" ... '" .#!".~~·,,,,,,.;-'. . -7>!1'" ,,,, ... < ¢; ¢ The following papers numbered 1 to 6 read on this motion on the calendar of March 31, 2010 Papers Numbered Notice of Motion, Order to Show Cause, Affidavits and Exhibits Annexed ........ 1-2 .................. .. Answering Affidavits and Exhibits Annexed ....................................................... .3,4,5 ................ . Replying Affidavits and Exhibits Annexed ........................................................... 6 ...................... . Upon the foregoing papers, this motion is decided in accordance with the annexed memorandum decision. Dated: I h' )'O RIEDLANDER, J.S,C. \.J.,,'-J [* 2] FILED Jul 19 2010 Bronx County Clerk NE\V YORK SUPRE1\1E COL'RT - COUNTY OF BRONX PART IA-25 MYRTLE BRYANT, Plaintiff~ MEMORANDUM DECISION/ ORDER Index No. 301724/08 -against- BOULEVARD STORY, LLC and UPLIFT ELEVATOR !NC. Defendants. HON. MARK FRIEDLANDER: In this "trip and fall" action, defendant Boulevard Story, LLC ("Boulevard") moves for summary judgment dismissing all claims against it, and, in the alternative, seeks indemnification from co-defendant Uplift Elevator, Inc. ("Uplift"). In a separate motion, served six days later, Uplift moves for summary judgment dismissing the claims against it. Both motions were made returnable on the same day, and were ultimately submitted on the same day. Although the motions were placed into separate folders by the clerk's office, they are more accurately considered a motion and cross-motion. Clearly, both motions should be considered together, and they are both decided hereinafter. Plaintiff alleges that she tripped and fell, on October 6, 2006, while exiting an elevator in the apartment building in which she resides. Boulevard is the owner of the building, and, pursuant to a maintenance contract between Boulevard and Vplift, the ongoing maintenance of the elevator was performed by Uplift. Plaintiff blamed her fall on the purported failure of the elevator to align properly with the floor. Defendants now move for summary judgment, claiming that plaintiff can prove no actionable defect in the elevator, and that, even if there were such defect, there is no showing of any actual or constrnctivc notice to defendants of a defect, and no proof that defendants caused or created such defect. Plaintiff opposes the motions, and attaches to her deposition the affidavit of an expert, in which the 2 [* 3] FILED Jul 19 2010 Bronx County Clerk expert makes two significant concessions. Jn paragraph 4a, he states, "I agree if all systems are working properly the elevator should not mis-level more than one-half inch." In paragraph 7, he opines, with a reasonable degree of mechanical certainty, that, "absent negligence an elevator of this type will not mis-level more than,;_ one half inch." These statements bolster, to some extent, the deposition testimony ofUplift's CEO th;1t it is acceptable by code and industry standards for an elevator such as the one involved here to stop as much as three quarters of an inch above or below the floor level. Movants also cite precedent arising from tripping accidents which do not involve elevators, which decisions confinn the well accepted rnle that changes in ground level olthe size described above are de minimus and not actionable. Movants contend that plaintiff cannot establish that the elevator misaligned by more than the allowable standard, whether that standard is one half inch or three quarters of an inch. It is not contested that plain ti ff fell upon leaving the elevator (although no one observed her fall) and that the elevator doors closed, with the elevator presumably continuing its travel, while plaintiff was still on the floor. Plaintiff asserts that the elevator was misaligned by stopping below the level of the hallway floor. It docs not require sci en ti fie acumen to reali/.e that it would be more difficult for plaintiff, after her fall, to assess the amount of the misalignment of the elevawr, at a time when the elevator was below floor grade, than it would have been, had the elevator been above floor grade (with its undercarriage showing clearly above the hall floor level). In fact, plaintiff, when questioned at deposition, made it quite clear that she could not state the amount of the misalignment. She stated clearly that, in order to slate an amount, she would have to guess (EBT, p.43). Plaintiffs counsel tries to rescue plaintiffs claim by asserting that plaintiff indicated the amount with her hands (EBT, p.42), and that the amount she was indicating was between one and two inches. However, movants' counsel disputes this and, in fact, argues that plaintiff was not demonstrating an amount of mis-leveling at all, but merely indicating that the elevator was below the level of the hall, by holding one hand below the other. The deposition transcript reveals nothing that can be used to discern the amount of mis-leveling and does 3 [* 4] FILED Jul 19 2010 Bronx County Clerk not even disclose whether plaintiff was using one hand, two hands, or something else, to indicate. In any event, the context o Cthe "indication" by plaintiff seems to more closely support movants' position that plaintiff was simply demonstrating the general positions of the two surfaces and not the distance between them. If either counsel had wished to use plaintiffs "indication" as a basis for eliciting evidence of the amount of mis-leveling, it would have been the obligation of such counsel to stale for the record "indicating a gap of"x" inches," followed by a challenge to the opposing counsel, "do you agree?" This was not done. In opposition to the motion, plaintiff now submits an affidavit claiming that the amount of the misleveling was one and a half to two and a half inches, and that this was the amount she was signaling at her deposition. Such assertion, put forth with seeming certainty, is, of course, directly contradicted by her own statement at deposition that she would need to guess to state an amount, as well ashy the continued questioning posed to her at deposition as to the amount (making no reference to her just completed gesture) immediately after she had purportedly demonstrated it. It is well established that the kind of assertion plaintiff submits in her affidavit constitutes material tailored lo defeat a summary judgment motion, and that such material merely raises a feigned issue of fact. Court decisions too numerous to require specific citation here mandate that the statement by plaintiff in her affidavit be discounted. IC plainti fT cannot establish that her fall occurred over a mis-leveling that was larger than the one her own expert considers non-negligent, then she has effectively conceded the lack of a viahle cause of action. As a general proposition, everyone is aware that it is possible to trip over very small changes in elevation in a walking surface, such as tripping, or nearly tripping, over a minimal difference in sidewalk blocks. Nearly every human being was experienced it, or watched others experience it, numerous times. But not every minimal change in surface elevation is evidence of negligence or actionable. Herc, plaintiff claims that it was her toe which struck the protruding hallway floor, a fact consistent with a smaller, rather than larger, mis-leveling. The 4 [* 5] FILED Jul 19 2010 Bronx County Clerk fact of plaintiffs fall does not, in itself, prove negligence.' If plaintiff cannot show that there was a defect in the elevator, her claim must be dismissed. \levertheless, the Court will briefly address other bases for dismissal, raised by movants, for purposes of completeness. Movants claim that there was no actual or constructive notice given to them as to purported misleveling of the elevator. They assert that the elevators were fairly new, having been upgraded the year before, and that Upli ll checked them monthly. In addition, the super checked the elevators each day. Further, there were no records of any alleged elevator accidents before plaintiffs. When there were problems noted with an elevator, the super would call Uplift and a technician from Uplift would address the problem. Finally, on the very day of plaintiffs accident, but several hours earlier, there had been a report of a problem with the subject elevator, resulting in a service visit. According to Uplift, that problem had no connection with mis-leveling, but the problem was addressed and the elevator was checked. At her deposition, plaintiff asserted that two or three other building tenants had mentioned to her that they had noticed elevator mis-leveling, but she could not state that she or any of the other tenants reported such complaints to Boulevard or to Uplift. As of plaintiffs deposition, therefore, it would appear that notice could not be definitively established. Al around the time this motion was made, a non-party witness ("Rawlins") was deposed. He is an admittedly close friend of plaintiff, who occasionally visits plaintiff in her building. He stated at his deposition that he visited plaintiff several months before her accident and noticed her elevator mis-leveling. At the beginning of his deposition, he staled that he could not be sure which of the building elevators he used (there are two). As the questioning progressed, however, he began lo assert more forcefully that it was the "right-side" elevator. This was the one on which plaintiff had fallen, although Rawlins claimed not lo know that. Rawlins also claimed that he recalled the mis-leveling to have been one and a half to two inches. Rawlins stated that he reported the mis-leveling to a person wearing a unifo1m in the lobby, whom he 5 [* 6] FILED Jul 19 2010 Bronx County Clerk presumed to be a building employee or guard. Finally, Rawlins stated that he learned of plaintiffs accident when plaintiff called him from the hospital and told him that she had fallen "coming out of the damn elevator." ll is decidedly odd that plaintilrs friend is now produced to claim: 1) Observation of a defect the precise size asserted by plaintiff; 2) a belated certainty as to which elevator he was using years ago; and 3) the giving of notice to an unnamed supposed building employee in the lobby. What is more remarkable, however, is that plaintiff, at deposition, was asked at length about who else complained of elevator mis-leveling. She named various building tenants, but never named Rawlins. Yet, Rawlins claims to have been so concerned about plaintin's elevator that he made a report of it several months before her fall, and also claims that he learned of plaintiffs fall at the elevator immediately following the occunence. It appears that we arc being asked to believe that Rawlins did not immediately tell plaintiff during her hospital stay that he, too, had trouble with the elevators in her building. Not only that, but he apparently made no mention of it to plaintiff for the 26 months between her accident (October 2006) and her deposition (December 2008), because, al her deposition, plaintiff could not think to name Rawlins as a person who knew of the :dlegcd elevator problem. This comes as close as the Court has ever seen to the production of a non-party witness for the purpose of eliciting "testimony tailored to defeat a summary judgment motion." If plaintiff had belatedly come up with the account of Rawlins' elevator trip, after showing no knowledge of it during her deposition, plaintiff's account would have been unavailing. Herc, it is her friend rendering the account, and plaintiffs failure to report it at her deposition requires the counter-intuitive leap that, for years after her accident, Rawlins never told plaintiff about something very relevant to her situation. Nevertheless, the Court would not imply that either plaintiff or Rawlins are improperly presenting questionable sworn evidence. It would not be appropriate to make such determination without a hearing. Therefore, such doubts as are expressed above as to the evidence presented by Rawlins will not be used to 6 [* 7] FILED Jul 19 2010 Bronx County Clerk detem1ine this motion. Rather, it suffices that Rawlins cannot state for certain whom it was that he advised of the purported elevator problem. Further, based on the totality of his deposition testimony, it is not clear that he is certain he observed the alleged condition in the relevant elevator. Finally, Rawlins' experience is several months removed from plaintiffs accident, and, in the intervening period, there were several monthly maintenance visits by Uplift, during which the elevators were checked, (and the elevators were used repeatedly each day, without any specific accounts of problems during that time span) making Rawlins' account less relevant lo any alleged issue arising during plaintiffs elevator ride. Based on all of the above, there is no basis in the Rawlins account for finding actual or constructive notice to any defendant. However, as was discussed, supra, the lack of provable notice is not dctem1inative of the result here, insofar as the Court has already found insufficient proof of any defect. The cases cited by plaintiff, in general, do not support the proposition that the instant situation is one in which a defect was proven, or in which notice of defect was demonstrated. As one example, Dickman v. Stewart Tenants Corp., 221 A.D.2d 158, describes an elevator defect not only much larger than the one half inch standard, hut significantly larger than that claimed by plainti IT in her recently tailored affidavit. It also describes indisputable notice through a fair munber ofrepo1ted elevator incidents. The Court does not accept Uplifi's argument that it owed no duty to plaintiff. Because such issue is not detenninative here, this point will not be belabored. Suffice it to say that Uplift's responsibilities for ins1all<1tion, maintenance, repair and monthly inspection of the elevator are sufficiently encompassing as to establish that it assumed the duties and control which would render it answerable to a third party under the relevant case law. Uplift's disclaimer language in its contract with Boulevard may affect its rights vis-a-vis Boulevard, but bas no impact on the real world facts which impact its responsibilities toward users of the elevator. Finally, because the summary judgment motions are granted, Boulevard's alternative request for 7 [* 8] FILED Jul 19 2010 Bronx County Clerk indemnification li·om Uplift is rendered moot. However, once again, in the interest of completeness, the Court will note that, had such application remained relevant, it would have been denied on its merits. Uplift's reference to its agreement with Boulevard shows that Boulevard did not preserve any right to indemnity from Lplift under these circumstances. J\t the very least, Boulevard certainly has no right to indemnification as a matter of law, in advance of a trial that affinnatively establishes negligence on the part of Uplift. In fact, Lplitt has preserved certain indemnification rights against Boulevard, to the extent those do not run afoul of the provisions of GOL 15- 108. (See Maintenance Agreement, Exhibit H to Boulevard's moving papers, paragraphs 7, 8 and 13). Boulevard's final submission here, a reply affirmation dated March 30, 2010, shows Boulevard to be unaware of Up lift's "Affinnation in Partial Opposition" in which Uplift raises the defense of the contract provisions. However, the partial opposition was served by Uplift on March 24, 2010, and the motion was not submitted until March 31, 2010, so that Boulevard had an opportunity to seek time to address the arguments of' Cplifl on indemnification. In any event, the contractual tem1s seem clear to the Court. By reason of the foregoing, Boulevard's motion for summary judgment dismissing the claims of plaintiff against it is granted in all respects. Boulevard's alternative application for indemnification from co-defendant Uplift is denied as moot Uplift's motion for summary judgment dismissing the claims of plaintiff against it is similarly granted in all respects·. This constitutes the Decision and Order of the Court. 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
