Ruiz-Hernandez v TPE NWI Gen.

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Ruiz-Hernandez v TPE NWI Gen. 2012 NY Slip Op 31059(U) April 12, 2012 Supreme Court, New York County Docket Number: 117068/07 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON412012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRA A. JAMES PART 59 Justice Index No.: Plaintiff, -v- 117068/07 Motion Date: NATICHA RUIZ-HERNANDEZ, 12/23/11 Motion Seq. No.: TPE NWI GENERAL, 02 Motion Cal. No.: Defendant TPE NWI GENERAL, Third-party Plaintiff, -v- GUARDSMAN ELEVATOR CO., INC., Third-party Defendant. FILED NEW YORK COUNTY CLERK'S OFFICE The following papers, numbered 1 to 3 were read on this motion for summary judgment. PAPERS NUMBERED Notice of MotiodOrder to Show Cause "Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits C ross-Motion : 0 Yes No Upon the foregoing papers, In this action to recover for injuries plaintiff Naticha Ruiz-Hernandez claims to have suffered in an elevator accident, defendant TPE NWI General ( T P E ) moves for summary judgment dismissing the complaint. Third-party defendant Guardsman Elevator C o . , I n c . (Guardsman) moves for summary judgment Check One: 0 FINAL DISPOSITION Check if appropriate: 0 DO NOT POST NON-FINAL DISPOSITION 0 REFERENCE 0 SETTLElSUBMlT ORDEWJUDG. [* 2] dismissing the third-party complaint. On June 27, 2007 in a building known as 32-38 West 111th Street, New York, New York, plaintiff was allegedly injured when an elevator in which she was riding, shook, and then dropped, causing plaintiff to be lifted off of her feet and fall. Plaintiff does not know how far the elevator fell. After the alleged fall, the elevator continued up to plaintiff s floor, where plaintiff exited t h e elevator. TPE is the owner of the premises, while Guardsman is the elevator repair company TPE contracted with to provide monthly maintenance on the elevator and to make any necessary repairs. Guardsman was also on call to come to the premises if summoned a b o u t a particular problem. TPE There is no written contract between and Guardsman. Guardsman had been called to the premises in the month previous to plaintiff s accident to r e p l a c e a relay on the elevator, identified as an IP8300 relay. According to Guardsman s witness, Robert C u m i n s (Cummins), the I P 8 3 0 0 relay is a landing control system. It is the subcomponent that controls floor stops and direction selection. Guardsman was called on June 27, 2007, apparently sometime soon a f t e r -2- [* 3] plaintiff s accident, ,to r e p l a c e the relay again, which it did the n e x t day. C u m i n s testifies that an IP8300 relay can be burnt o u t by low voltage , and that low voltage can be caused by a spike of very h o t weather. TPE and Guardsman apparently c l a i m that Con Edison caused a brownout on t h e day in question, because of t h e hot weather, and the brownout was t h e cause of the low v o l t a g e that may have affected the IP8300 relay on the day of plaintiff s accident. Thus, TPE faults Con Edison with the condition contributing to plaintiff s accident; a burnt-out relay, caused by the actions of a third party. The proponent of a motion f o r summary judgment must demonstrate that t h e r e are no material issues of fact in dispute, and t h a t it is entitled to judgment as a matter of law. Dallas,Stephenson v Waisrnan, 39 AD3d 3 0 3 , 3 0 6 (1 D e p t 2 0 0 7 ) , citing Winesrad v New York University Medical C e n t e r , 64 NY2d 8 5 1 , 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, t h e p a r t y opposing a motion for summary judgment bears the burden of produc[ingl evidentiary proof in admissible form sufficient to require a trial of material questions of Plaintiff claims that her accident occurred about 5:OO P.M. C u m i n s claims that the call came into Guardsman s answering service at 5:15 P.M. TPE and Guardsman do not concede t h a t t h e r e w a s an accident. -3- [* 4] fact, ' ' I P e w l e v Grasso, 50 AD3d 5 3 5 , 545 ( l SDept 2008), t quoting Zuckermw v C itv of New York, 49 N Y 2 d 557, 562 (1980). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied. Rotuba Extruders v Ceppos, 46 NY2d 223 (1978);Gross v Amalqamated Houginq Corooration, 298 AD2d 224 (1st Dept 2002). "Liability for a dangerous condition is generally predicated on either ownership, control or a special use of the property." Lopez v Allied Amusement; Shows, Inc., 83 A D 3 d 519, 519 (1st Dept 2011). A landowner may be found liable in tort if a party suffers an injury due to \\'an allegedly defective condition upon property,"' if it is determined that "'the landowner affirmatively created the condition or had actual or constructive notice of its existence [citation omitted].'" Spindel1 v Town of Hempstead, 92 AD3d 669, 2012 NY Slip Op 00951, "2 (2d Dept 2012); see also 2011). Pintor v 122 Water Realty, LLC, 90 A D 3 d 449 (1st Dept "Actual notice may be found where a defendant either created the condition, or was aware of its existence prior to the accident." Atashi v Fred-Douq 117 LLC, 87 AD3d 455, 456 (1st Dept 2011). "In order to constitute constructive notice, a defect must be visible and apparent for a sufficient length of time to permit the defendant's employees to discover and remedy it." &, citing Gordon v American Museum of Natural History, 67 NY2d 836 (1986). -4- [* 5] In the present case, there is no evidence that TPE caused the burnt: relay which may have contributed to plaintiff's accident. However, there is some question about whether it had actual or constructive notice of a defective relay. TPE denies any knowledge of a defective condition. However, its repair company, Guardsman, admits that the IP8300 relay could burn out during low-voltage episodes. In addition, plaintiff's expert states that the weather reports f o r the day of the accident show that a blackout did occur but that such was not the result of excessive electrical overload on The Con Ed grid, i.e. there was no brownout which results when there is a power cutback by the utility to prevent a blackout. The expert further notes that the superintendent's memo book for the building contained entries related to the elevator on the day of the accident, but they do not indicate any low volt.age problems on that day. He opined that within a reasonable degree of mechanical certainty, the malfunction or series of malfunctions that occurred on June 27, 2007 on the elevator were not due to any reduction in voltage in the building. The expert also stated that one of the records of third party defendant Guardsman indicated that t h e I P 8 3 0 0 relay was failing o v e r a month prior to the accident. Such constitutes evidence that TPE had knowledge of the defect knowledge: a relay which could not withstand low voltage, and that had failed in the past, and would be expected to fail in the -5- [* 6] future, during ordinary brownout events. There is, therefore, a question of actual or constructive notice on TPE s part, and likewise whether Guardsman a l s o may be charged with notice of the potential f o r relay failure during brownouts. Even if there was no question of notice, there is an issue of fact in this case based on the doctrine of res ipsa loquitur. As a first argument, TPE suggests that res ipsa loquitur can never be applied in the absence of an initial showing of notice. However, cases in b o t h the Appellate Division, First Department, and t h e Appellate Division, Second Department, demonstrate otherwise, finding that the inference of negligence created by the doctrine may call for the denial of a motion f o r summary judgment even where t h e possibility of notice has not otherwise been established. See Devito v Centennial Elevator Industries, Inc., 90 AD3d 595 (2d Dept 2011); Sinsh v UP^ t e d Cerebral palsy N.Y. City, Inc., 72 AD3d 2 7 2 (1st Dept 2010); Iangtta v Tishrnan Speyer Properties, Inc., 46 AD3d 297 (1st Dept 2007); Fyall v Centennial Elevator Industries, Inc., 43 AD3d 1103 (2d Dept 2007). Thus, plaintiff may proceed on a theory of res ipsa loquitur. Res ipsa loquitur creates an inference of negligence under certain circumstances. Dermatosgiaq v New York City Transit Authority, 67 NY2d 219 (1986). Under c h i s doctrine, an action may proceed to the trier of fact if it is established that t h e -6- [* 7] accident "(1) was of a kind that 'ordinarily does not occur in the absence of someone's negligence; ( 2 ) [was] caused by an agent or instrumentality within the exclusive control of the defendant; [and] (3) [was not] due to any voluntary action or contribution on the p a r t of the plaintiff.'" Sinqh v United Cerebral P a l w ~f N.Y. City, Inc., 72 AD3d at 277, quoting Moreion v R a i a Construction C nmpanv, 7 NY3d 203, 209 (2006). To the extent that TPE addresses the res ipsa loquitur argument, TPE claims that the second element, exclusive control, is missing, because of the alleged interference of Con Edison's brownout with the IP8300 relay. TPE argues that t h e there is only evidence, if at all, that the accident was the fault of Con Edison, who caused a nondefective part on the elevator, the IP8300 relay, to be "made defective,,by providing low voltage. As such, TPE denies having exclusive control of the elevator. This c o u r t finds that there is a question of fact as to whether res ipsa loquitur provides a presumption of negligence. As to the first requirement for a showing of res ipsa loquitur, this c o u r t finds that the accident in question is "an event of the kind which would not ordinarily occur in the absence of negligence." Burqess v Otis Elevator Company, 114 AD2d 7 8 4 , 7 8 6 (1st Dept 1 9 8 5 ) , 69 NY2d 623 (1986). TPE claims that it was not in exclusive control of the r e l a y because any problem was caused not by TPE, but by Con Edison. -7- [* 8] This position ignores the reality that t h e relay, which ought to be functioning at a l l times, was in the exclusive control of TPE and/or Guardsman. TPE s claim that it \ neverclaimed to maintain t h e elevator, let alone exclusively maintain the elevator , does not defeat a r e s ipsa loquitur argument. \ \ [ R ] e s ipsa loquitor does not require sole physical access to the instrumentality causing t h e injury and can be applied i n situations where m o r e than one defendant could have exercised exclusive control. $inqh v Unitd Cerebral Palsy of N.Y. Citv, Inc., 72 AD3d at 277. The evidence shows that Guardsman came to the premises monthly and as needed. There is no evidence that TPE ceded all responsibility for the elevator to Guardsman; the elevator remained within TPE s control, as owner of the premises. TPE s reliance on cases involving escalators, in which exclusive control is often found lacking, is untenable. In such cases, it is acknowledged that the public has access to the workings of escalators. See Parris v P o r t of N,Y. Authority, 47 AD3d 460, 461 (1st Dept 2008) (escalator subject to extensive public contact on a daily basis ); Birdsall v Montqornery Ward. & L., 109 AD2d 969 (3d Dept 1 9 8 5 ) , affd 65 NY2d 913 (1985) (escalator malfunctioning attributable to debris on escalator). This is not the case with elevators, where the inner workings of the machine are not generally within the public s p h e r e . -8- [* 9] of notice of a dangerous condition with the elevator, that is, a propensity of the elevator to f a l l . However, as specified previously, Guardsman had access t o the elevator, and knowledge of the alleged relay problem during low-voltage events. Further, res ipsa loquitur applies as a valid theory of negligence, based on Guardsman's access to the elevator, and its admission that it had recently changed the I P 8 3 0 0 rely. Issues of fact exist. As a resulL of the foregoing, this court finds t h a t there is a question of fact as to whether TPE had actual or constructive notice of a defect in the I P 8 3 0 0 relay, Further, there a r e questions of fact as to whether an inference of negligence exists, based on the application of the doctrine of res i p s a loquitur to the f a c t s . As a result, both the motion of T P E , and t h a t of Guardsman, are denied. Accordingly, it is ORDERED that t h e motion brought by defendant TPE NWI General for summary judgment dismissing the complaint is denied; and it is further ORDERED that the motion brou.ght by third-party defendant Guardsman Elevator Co., Inc. for summary judgment dismiesing t h e third-party complaint is denied. This is t h e decision and order of t h e court. Dated: April 12, 2012 ENTER -9- IS2012

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