Rotondo v Luna Park Hous. Corp. Residential Mgt. Group, LLC

[*1] Rotondo v Luna Park Hous. Corp. Residential Mgt. Group, LLC 2013 NY Slip Op 51839(U) Decided on October 23, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2013
Supreme Court, Kings County

Heidi Rotondo, Plaintiff,

against

Luna Park Housing Corporation Residential Management Group, LLC, d/b/a DOUGLAS ELLIMAN PROPERTY MANAGEMENT COMPANY and AL'AN ELEVATOR CORP., Defendants.



2044/09



Plaintiff Attorney: Jay Torrenzano, Esq., Eaton & Torrenzano, LLP, 1662 Sheepshead Bay Road, Brooklyn, NY 11235

Defendant Attorney: French & Casey, LLP, 29 Broadway, New York, NY 10006

David I. Schmidt, J.

The following papers numbered 1 to 11 read herein:Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-45-6

Opposing Affidavit (Affirmation)7-9

Reply Affidavit (Affirmation)1011

Sur-reply Affidavit (Affirmation)

Other Papers

Plaintiff, Heidi Rotondo (Rotondo), was injured while exiting a passenger elevator in the apartment building owned by defendant Luna Park Housing Corporation (Luna Park) and managed by defendant Residential Management Group, LLC, d/b/a Douglas Elliman Property Management Company (Elliman). Rotondo commenced this personal injury, negligence action against Luna Park, Elliman and the elevator maintenance company, Al-an Elevator Maintenance Corporation (s/h/a Al'an Elevator Corp. [Al-an Elevator]). [*2]

Two post-note of issue summary judgment motions (motion sequence nos. 3 and 4),[FN1] both asserted pursuant to CPLR 3212, are hereby considered for a single disposition. Defendant Al-an Elevator moves (motion sequence no. 3) and, by separate motion, defendants Luna Park and Elliman collectively move (motion sequence 4) for summary judgment dismissing the complaint and any cross claims asserted against them on the grounds that (1) there is no evidence that defendants created or had actual or constructive notice of a defect in the operation of the subject elevator and (2) the doctrine of res ipsa loquitur is inapplicable.

Background Facts and Procedural History

The Elevator Accident

Rotondo was injured on August 14, 2007 while exiting passenger elevator # 2 in her apartment building at 2883 West 12th Street in Brooklyn, in the apartment complex known as Luna Park (Luna Park Building). Rotondo's May 16, 2013 affidavit in opposition notes, in describing the elevator accident that "[w]hen the elevator reached the first floor, the door began to open and as I started to walk out of the elevator, the door stopped half way and then closed quickly on my left and pushed me and pinned me against the right side of the elevator" (the Elevator Accident).

No dispute exists that Rotondo was injured as a result of the Elevator Accident, which a security surveillance video captured (the record contains a DVD of the video). Additionally, an August 16, 2007 Luna Park Incident Report from Don Haslett of Elliman to Ashley Barcelona regarding the elevator malfunction acknowledges the accuracy of Rotondo's account of the Elevator Accident:

"the door of elevator cab # 2 at 2879 West 12th St. (Bldg. # 1), closed on a resident on Tuesday, August 14, 2007. I have a copy of the security tape showing the incident and the resident's report appears accurate. The door opened, she started through the door and it closed fairly rapidly on her. Ms. Heidi Rotondo [of] apt 1 G leaned against the door to hold it from closing while her young daughter left the elevator car.

Our handyman tried the car door a number of times and the rapid close did not occur again. The elevator company, Alan Elevator Corp. Sent a service technician who repaired the stop unit and adjusted the stop unit' (quoted from repair ticket)" (emphasis added).

The 2001 And 2007 Elevator Maintenance Contracts

Al-an Elevator has serviced and maintained the elevators at the Luna Park Building pursuant to an elevator maintenance and servicing contract with Luna Park since approximately December 2001 (2001 Elevator Maintenance Contract).[FN2] Under the 2001 Elevator Maintenance Contract, Al-an Elevator agreed "that it shall service and maintain" Luna Park's elevators in compliance with the May 22, 2001 specifications. Section B, subd D of the specifications entitled "Scope of Work" provides, in relevant part that:

"The Elevator Contractor . . . shall provide all labor, supervision, tools, supplies and other expenses necessary to perform a full maintenance service program, and repairs of every description, including inspections, adjustments, cleaning, tests as herein specified for all equipment under this contract.

"The Contractor will use competent trained men . . . qualified to keep the elevator equipment properly adjusted and will use all reasonable care in maintaining the equipment in a proper and safe operating condition.

[*3]"They shall regularly and monthly examine, adjust, lubricate and clean; and when conditions warrant, repair or replace any mechanical, electrical, moving or stationary parts as listed, providing the specific item is incorporated within, or a segment of, the elevator unit.

***

"The Contractor shall be responsible for notifying the owner (in writing) of the existence or development of any defects in, or repairs required to, the elevator equipment . . . The Owner reserves the right to make the final determination concerning the responsibility for such defects, corrections or repairs.

"The Contractor shall be responsible for giving immediate notice to the Owner of any condition which he discovers that may present a hazard to either the equipment or passengers" (emphasis added)

Paragraph 4 of the 2001 Elevator Maintenance Contract provides that defendant Al-an Elevator "shall maintain the insurance set forth in the Specifications . . . which shall name Owner . . . and Owner's Managing Agent as addition[al] insured[s]" during the five-year duration of the 2001 Elevator Maintenance Contract "and for a period of two years after the expiration or termination hereof." Section A, subd 15 of the specifications requires that Al-an Elevator carry comprehensive general liability insurance for bodily injury with a minimum of $2 million of coverage for each occurrence.

Paragraph 5 of the 2001 Elevator Maintenance Contract also contains an indemnification provision, providing that

"Contractor hereby indemnifies and holds Owner [and] Owner's Managing Agent . . . harmless from and against all loss, cost, liability or expense caused or incurred by reason of the acts or failure to act of Contractor . . . on or about Owner's property arising out of or resulting from Contractor's obligations hereunder and/or Contractor's performance of the Work . . ."

Significantly, under Paragraph 8 of the 2001 Elevator Maintenance Contract, Al-an Elevator assumed liability for injury arising out of Al-an Elevator's maintenance and/or repair of Luna Park's elevators "independent of any question of negligence on its part":

Contractor shall be responsible and liable for any injury to any person . . . arising from the acts (or failure to act) of Contractor . . . during the progress of the work covered by this Agreement . . . . The liability of Contractor under this paragraph shall be absolute and shall be independent of any question of negligence on its part . . . and the failure of Owner to direct Contractor to take any particular precaution shall not excuse Contractor from liability in the event of damage or injury to persons or to property. In the event that suit is brought against Owner, or that any claims arise from any of the above causes, Contractor shall defend Owner in such litigation at its own expense . . . and in the event that judgment is entered against Owner in any such action, Contractor shall . . . also pay the full amount of such judgment. In the event that Contractor shall refuse, neglect or otherwise fail to defend such litigation and/or to pay forthwith any sum which shall become due under this paragraph, Owner shall have the right to defend such claim or litigation and pay such sums, and Contractor shall be liable to Owner for any and all fees, costs, expenses and disbursements, including appeals, paid by Owner and all other sums paid by Owner, which are the obligation of Contractor under this paragraph. Nothing in this paragraph shall be construed to indemnify Owner against the negligence of Owner."

Al-an Elevator contends that the parties entered into another, less comprehensive, elevator maintenance contract on April 1, 2007, and that such contract was in effect when the Elevator Accident occurred (2007 Elevator Maintenance Contract). However, it is unclear whether the 2007 [*4]Elevator Maintenance Contract was ever fully executed.[FN3] Al-an Elevator contends that the 2007 Elevator Maintenance Contract, in contrast to the comprehensive 2001 Elevator Maintenance Contract, "provides for limited maintenance of the 15 passenger elevators at the LUNA PARK complex, including lubricating and adjusting the elevator equipment on a routine basis and some limited repairs."

Al-an Elevator claims that it agreed to "furnish Preventive Maintenance," perform "scheduled service examinations" and "periodically examine all safety devices" on a monthly basis under the 2007 Elevator Maintenance Contract. The 2007 Elevator Maintenance Contract further provides that "[i]f any unit is malfunctioning or in a dangerous condition, you should immediately notify us. Until we correct the problem, you agree to remove the unit from service and take all necessary precautions to prevent access or use." The 2007 Proposed Elevator Maintenance Contract also includes a provision stating that Al-an Elevator "do[es] not assume possession or control" of the elevators at the Luna Park Building:

"[i]t is agreed that we do not assume possession or control of any part of the units, that such remains yours solely as owner, leesee, or agent of the owner or leesee, and that you are solely responsible for all requirements imposed by any federal, state or local law, ordinance or regulation" (emphasis added).

Elevator Maintenance At The Luna Park Building

Al-an Elevator's maintenance and service invoices reflect that Al-an Elevator charged Luna Park $7,100 per month for "scheduled maintenance" of the elevators at the Luna Park Building "as per your contract" from August 2005 through June 2006, and that Al-an Elevator charged $7,313 per month for such services from July 2006 through August 2007.[FN4] Al-an Elevator, an "Approved Private Elevator Inspection Agency," also prepared Elevator Inspection/Test Reports in September 2005, June 2006 and June 2007 certifying that it duly inspected the elevators at the Luna Park Building.

Al-an Elevator's maintenance, service and repair tickets from January 2007 through August 2007 reflect that Al-an Elevator regularly serviced and performed extensive maintenance and repairs on the subject elevator in the months before the Elevator Accident. Thus, Al-an Elevator's business records reflect that Al-an Elevator regularly maintained, serviced and repaired the subject elevator 21 times in the eight months before the Elevator Accident, which included (1) "replac[ing] the take guide" and "adjust[ing] the car" on January 20, 2007; (2) "receiv[ing] 3 wire broken in the traveling cable for the selector sensor," "check[ing] operation" and returning it "back to service" on January 29, 2007; (3) "replac[ing] selector" and performing "maintenance" on January 31, 2007; (4) "replac[ing] generator and motor brushes" and "start[ing] the cleaning project for maintenance" on February 2, 2007; (5) performing "monthly maintenance" on February 21, 2007; (6); "repair[ing] the traveling cable due [to] the elevator was working crazy the wire was almost broken (fixed)" on March 1, 2007; (7) "adjust[ing] the parameter for brake hold and (brake drop) on the CPU," "check[ing] operation" and returning it "back to service" on March 5, 2007; (8) performing "monthly maintenance" on April 3, 2007; (9) "clean[ing] optical sensor in the selector" and returning it "back [*5]to service" on April 10, 2007; (10) "check[ing] operation" and returning it "back to service" on April 16, 2007; (11) "adjust[ing] in the selector unit the leveling sensor," "check[ing] operation" and returning it "back to service" on April 23, 2007; (12) performing "monthly maintenance" on May 2, 2007; (13) "blow[ing] out fuse in the dispatcher," "check[ing] operation" and returning it "back to service" on May 16, 2007; (14) "clean[ing] the selector . . . sensor," "adjust[ing] the parameters for the gain speed in the controller" and returning it "back to service" on May 18, 2007; (15) "reset[ting] the CPU," "clean[ing] the operator contacts," "adjust[ing] DCL contact" and returning it "back to service" on May 21, 2007; (16) "calibration out on "DCS" drive unit" due to "S/D on 9th DRIVE FAULT!," "retriev[ing] IMC - drive unit," "check[ing] operation" and returning it "BIS" (back to service) on May 23, 2007; (17) replac[ing] optical sensor in the selector board," "check[ing] operation" and returning it "back to service" on May 25, 2007; (18) replacing "new (selector unit complete)," "replac[ing] PR sensor in the selector" and "check[ing] operation" on May 30, 2007; (19) "replac[ing] selector guides," "clean[ing] optical sensor" and returning it "back to service" on July 16, 2007; (20) performing "monthly maintenance" on July 18, 2007; and (21) performing "monthly maintenance" on August 13, 2007, the day before the Elevator Accident.

Al-an Elevator's maintenance, service and repair tickets further reflect that Al-an Elevator serviced and repaired the subject elevator door soon after the August 14, 2007 Elevator Accident, which included: (1) "adjust[ing] door and clean[ing] contacts" on August 24, 2007; (2) "replac[ing] bibs on leveling unit," "check[ing] all operation" and "return[ing] car to service" on September 1, 2007; (3) "replac[ing] the sensor in stop unit" on September 4, 2007; and (4) "replac[ing] volm sensor in the selector bar" and "clean[ing] sensor" on September 10, 2007.

Rotondo's Personal Injury Action

Rotondo commenced this personal injury action in January 2009 against Luna Park, Elliman and Al-an Elevator. Rotondo's complaint alleges "[u]pon information and belief" that Luna Park and Elliman "owned," "operated," "maintained" and "controlled" the Luna Park Building and that Al-an Elevator "installed," "maintained" and "inspected" the elevators at the Luna Park Building "pursuant to a contractual Agreement" between Al-an Elevator and Luna Park. Rotondo's complaint further alleges that the Elevator Accident and Rotondo's personal injuries "were due to the negligence and carelessness on the part of the defendants in the ownership, operation, maintenance, repair, servicing and control of the said building and/or elevator . . ." and that Rotondo "further relies upon the doctrine of res ipsa loquitur."

Rotondo's bill of particulars further alleges that "[b]oth actual and constructive notice is claimed," yet expressly concedes that Rotondo "does not possess the names of the defendants agents, and/or servants who had actual notice of said dangerous conditions . . ." Rotondo testified at her February 8, 2010 deposition that she verbally complained, "[t]hat the elevators weren't working properly" and that the elevators "were getting stuck," to an unidentified "maintenance guy" at the Luna Park Building before the Elevator Accident. However, Rotondo could not identify "the maintenance guy" or provide any details about the substance of her complaint. Rotondo admitted that she never experienced an elevator malfunction before the Elevator Accident, and that she did not know anyone who complained about the subject elevator before the Elevator Accident.

Rotondo's bill of particulars also alleges that "[c]onstructive notice is claimed herein in that . . . said dangerous and defective conditions existed for such an inordinate length of time that the defendants, their agents, servants and/or employees in the exercise of ordinary and reasonable care knew or should have become aware of the existence of said dangerous and defective conditions." Rotondo's supplemental bill of particulars alleges that Rotondo's claim of "constructive notice" is premised upon defendants' alleged failure to perform "periodic checks as required by the industry. . ."

Defendants' Cross Claims

Defendants Luna Park and Elliman answered the complaint, denied the negligence allegations therein and asserted cross claims against defendant Al-an Elevator for: (1) contractual and common law indemnification; (2) contribution; and (3) indemnification "to the extent [Al-an [*6]Elevator] failed to procure liability insurance as required under any written contract in favor of the answering defendants as named insureds or as additional insureds thereunder."

Defendant Al-an Elevator answered the complaint, denied the negligence allegations therein and asserted cross claims against defendants Luna Park and Elliman for: (1) "indemnification and/or contribution, in whole or in part . . ."; (2) primary liability, in whole or in part "by reason of the sole, active and primary carelessness, recklessness, negligence, breach of contract, breach of warranty, strict products liability and/or affirmative acts of commission or omission by the co-defendants"; and (3) breach of contract for failing to procure liability insurance naming Al-an Elevator as a named insured.

Defendants' Summary Judgment Motions

Al-an Elevator's Summary Judgment Motion (Motion Sequence No. 3)

Defendant Al-an Elevator moves for summary judgment dismissing the complaint and all cross claims asserted against it on the grounds that (1) "plaintiff cannot establish a prima facie case of negligence . . . as there is no evidence that AL-AN created or had actual or constructive notice of any alleged defective condition in the operation of the elevator door in question prior to the alleged subject incident" and (2) "the doctrine of res ipsa loquitur is inapplicable to the instant case."

Al-an Elevator contends that there is no evidence that it had notice "of any problem with the subject elevator" or "any defect in the operation or maintenance of the elevator door as a result of its monthly inspections or occasional emergency service calls," although its business records reflect frequent "emergency service calls" regarding the subject elevator in the months preceding the Elevator Accident (emphasis in original). Al-an Elevator also relies on the deposition testimony of Richard Gaudiosi, director of Al-an Elevator's daily business and field operations at the time of the Elevator Accident. Gaudiosi, who was responsible for receiving complaints and service requests from Al-an Elevator customers, like Luna Park, testified that he was unaware of any complaints made to Al-an Elevator about the operation of the subject elevator before the Elevator Accident.

Al-an Elevator contends that the doctrine of res ipsa loquitur is inapplicable here because "plaintiff has not established that the alleged elevator incident would not have occurred in the absence of negligence, has not established that the elevator equipment was in [its] exclusive control . . . and has not established that the plaintiff did not cause or contribute to the event."

Specifically, Al-an Elevator argues that its 2001 and 2007 Elevator Maintenance Contracts with Luna Park do not "contain[ ] any language wherein AL-AN assumed ownership or complete control of the equipment" and claims that "an elevator maintenance contract does not include a comprehensive assumption of the building owner's safety-related obligations by the elevator maintenance company." Al-an Elevator contends that the doctrine of res ipsa loquitur is inapplicable here because "plaintiff cannot establish that either defendant had exclusive control of the elevator . . ."

Finally, Al-an Elevator claims that liability cannot be based on res ipsa loquitur because "plaintiff caused and/or contributed to the subject accident." Al-an Elevator's claim, in this regard, is premised on video surveillance of the Elevator Accident. Al-an Elevator contends that the surveillance video conclusively proves that Rotondo contributed to the Elevator Accident by attempting "to exit the elevator before the door was fully open" and by "push[ing] against the elevator door as she was attempting to exit the elevator."

Luna Park And Elliman's Summary Judgment Motion (Motion Sequence 4)

Defendants Luna Park and Elliman collectively move for summary judgment dismissing Rotondo's complaint and all cross claims asserted against them because they claim that they "did not have actual or constructive notice of the condition which allegedly caused plaintiff's accident at any time prior to its occurrence," and they contend that "[t]here is no evidence in the record that the building or managing agent was aware of any defects regarding the operation of the doors." Luna Park and Elliman further claim that "[t]he doctrine of res ipsa loquitur does not avail plaintiff where the defendants ceded all maintenance and repair responsibility to an independent contractor or where the plaintiff is partially responsible for the accident." [*7]

Defendants rely on the affidavit of Eric Szurant, superintendent of the Luna Park Building, who attests that he was not "personally aware of any prior similar accidents . . ." and that he never received complaints about the subject elevator before the Elevator Accident. Szurant confirmed that Luna Park "did not perform any repairs or maintenance in connection with the elevators," "relied on Al'an to keep the elevators in the building in good working order" and "would have no way of knowing if there were any internal mechanical problems with the elevators in the complex unless we were advised by Al'an of such problems."

Defendants Luna Park and Elliman also rely on the affidavit of Anthony Donadio, Luna Park's Director of Operations, who was responsible for the "physical plant" at the Luna Park Building. Donadio supervised the building maintenance staff who perform daily inspections of the elevators "limited to making sure the elevators were in service." Donadio avers that "[a]ny necessary repair and/or maintenance would be referred to Al'an Elevator Corp." because "[n]o building employees have ever performed elevator repair or mechanical inspections as this is outside of our area of expertise."

Donadio, who is responsible for referring elevator complaints to Al-an Elevator, avers that he did not receive any complaints about the subject elevator from tenants, building maintenance staff or Al-an Elevator in the year before the Elevator Accident. Donadio attests that "Luna Park relied on Al-An to keep the elevators in the building in good working order," Luna Park and Elliman "would have no way of knowing if there were any internal mechanical problems with the elevators in the complex unless we were advised by Al'An of such problems" and that he "did not observe any defects concerning the operation of the subject elevator prior to plaintiff's accident."

Rotondo's Opposition To Defendants' Motions

Rotondo opposes defendants' motions by arguing that there are triable issues of fact "as to (1) whether the [d]efendants' created this dangerous condition . . . and/or whether the defendants had constructive notice as they failed to perform proper maintenance and/or (2) whether the doctrine of Res Ipsa Loquitur applies to either defendant."

Rotondo contends that, based on the affidavit of her expert, Patrick Carrajat, an elevator consultant, "[d]efendants have failed to produce any evidence that the subject elevator was properly maintained." Carrajat inspected the subject elevator, reviewed deposition testimony, Al-an Elevator maintenance, servicing and repair records, video surveillance of the Elevator Accident, the 2001 and 2007 Elevator Maintenance Contracts between Al-an Elevator and Luna Park, records of the New York City Department of Buildings, Elevator Division and "exchanges" from defendants' experts, Jon Halpern and Kevin Dougherty.

Carrajat notes in his affidavit that there is no documentary evidence that Al-an Elevator "performed regular and systematic preventive maintenance on the subject elevator" or "tested the subject elevators' [sic] door operation" regarding the door speed and closing force, although "industry practice dictate that door closing force be tested annually at a minimum." Carrajat also notes that Al-an Elevator's time tickets are "a record of time without details of work performed." Carrajat asserts that "the subject elevator was under the exclusive control of AL'AN by virtue of their maintenance agreements for the subject elevator they installed." Carrajat notes that "Ms. Rotondo's incident was never reported to the Department of Buildings as required by section 27-1006 of the Building Laws of the City of New York," which would have prompted a full safety inspection. In addition, Carrajat notes that the Department of Buildings issued violations regarding the subject elevator in 2005 and 2007. Carrajat concludes that the "most probable" cause of the Elevator Accident was "that the signal from the detector was not received by one or more of the components that must be energized or de-energized to set a door reversal in motion."

Discussion

(1)

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and [*8]should, thus, only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment, as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Manicone v City of New York, 75 AD3d 535, 537 [2010], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If it is determined that a party has made a prima facie showing of entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562). Considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega v Restani Constr. Corp, 18 NY3d 499, 503 [2012]).

Nevertheless, the court must evaluate whether the issues of fact alleged by the opposing party are genuine or unsubstantiated (Gervasio v Di Napoli, 134 AD2d 235, 236 [1987]; Assing v United Rubber Supply Co., 126 AD2d 590 [1987]; Columbus Trust Co. v Campolo, 110 AD2d 616 [1985], affd 66 NY2d 701 [1985]). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat a motion for summary judgment (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]); Spodek v Park Prop. Dev. Assocs., 263 AD2d 478 [1999]). "[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment" (Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 383-384 [2004], quoting Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290 [1973]). If there is no genuine issue of fact, the case should be summarily determined (Andre, 35 NY2d at 364). "The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal citations omitted]).

(2)

Defendants' Actual Or Constructive Notice

The Appellate Division, Second Department has held that "[a] property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect . . . or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect" (Tucci v Starrett City, Inc., 97 AD3d 811, 812 [2012], citing Cilinger v Arditi Realty Corp., 77 AD3d 880, 882-883 [2010] [holding that building owner and manager were entitled to summary judgment dismissing complaint arising out of elevator accident based on evidence that there was no defect that could have been discovered through the exercise of reasonable care]; see also Lee v City of New York, 40 AD3d 1048, 1049 [2007] [upholding dismissal of personal injury action alleging that defendants negligently maintained elevator because "even if a defect existed, they did not have actual or constructive notice of any such defect"]; Isaac v 1515 Macombs, LLC, 84 AD3d 457, 458 [2011], lv. denied 17 NY3d 708 [2011] [holding that building owner and elevator maintenance contractor "demonstrated their prima facie entitlement to summary judgment by showing that they did not have actual or constructive notice of an ongoing misleveling condition and did not fail to use reasonable care to correct a condition of which they should have been aware"]; Oxenfeldt v 22 N. Forest Ave. Corp., 30 AD3d 391, 392 [2006] [reinstating complaint against building owner because nonparty witnesses' testimony that they observed elevator defect two months before accident raises a triable issue of fact regarding the owners' negligence"]).

The Court of Appeals has similarly held that "[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found" (Rogers v Dorchester Assoc., 32 NY2d 553, 559 [1973] [reinstating judgment on building owner and management company's cross claim against elevator maintenance company based on evidence that the elevator malfunctioned many times during the six [*9]months preceding the elevator accident, from which the jury might have inferred that the elevator company negligently performed its undertaking to repair and maintain the subject elevator]; see also Fiermonti v Otis Elevator Co., 94 AD3d 691, 691-692 [2012] [holding that plaintiff raised triable issue of fact regarding elevator maintenance company's notice of elevator defect]).

The Court of Appeals has held that "[t]o charge a defendant with constructive notice, the defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit the defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986] [holding that defendant did not have constructive notice where the record contains no evidence that anyone observed a dangerous condition or "some indication that it had been present for some period of time"].Here, triable issues of fact exist concerning whether defendants Al-an Elevator, Luna Park and Elliman had actual or constructive notice that the subject elevator door's stop sensor had a preexisting defect and/or malfunction that may have caused the Elevator Accident.

Al-an Elevator's own business records (i.e., elevator service and repair tickets) reflect that Al-an Elevator regularly serviced and repaired the subject elevator in the eight months before the Elevator Accident. Al-an Elevator's maintenance, service and repair tickets prove that Al-an Elevator maintained, serviced and repaired the subject elevator 21 times in the months preceding the Elevator Accident, and these instances were not "limited" in nature or "routine," as Al-an Elevator now contends. The Al-an Elevator service tickets, most of which were signed by a "mechanic" named "Carlos" and co-signed by someone authorized to certify that "The Work Was Done To My Satisfaction," reflect that the elevator was taken out of service on almost a bi-weekly basis. This documentary evidence raises factual issues regarding Al-an Elevator's actual and constructive knowledge of a persistent condition. Furthermore, a jury may infer that Al-an Elevator negligently performed its undertaking to repair and maintain the subject elevator, based on documentary evidence that the elevator malfunctioned and was taken out of service repeatedly in the eight months before the Elevator Accident, and may concurrently note that Al-an Elevator performed monthly maintenance on the subject elevator one day before the Elevator Accident.

Similarly, documentary and testimonial evidence raises questions of fact regarding Luna Park and Elliman's actual and/or constructive notice of problems with the operation of the subject elevator. Anthony Donadio, Luna Park's Director of Operations, testified that "[a]ny necessary repair and/or maintenance would be referred to Al'an Elevator" and that he was responsible for referring complaints and servicing requests to Al-an Elevator. Thus, Luna Park and/or Elliman (acting on Luna Park's behalf) authorized Al-an Elevator's service and repair calls that are documented on the service and repair tickets. Luna Park and Elliman claim that "there is nothing contained in the prior work tickets which would have put an ordinary property owner . . . on notice of a problem with the operation of the doors," but the many service tickets for the subject elevator indicate that Luna Park and Elliman had some level of awareness that the subject elevator had a persistent condition requiring service. Donadio avers that he did not receive any complaints about the subject elevator before the Elevator Accident, but he must have been aware that Al-an Elevator serviced the subject elevator 21 times from January to August 2007. Documented evidence of Al-an's frequent repairs to the subject elevator in the months before the Elevator Accident seemingly contradict Donadio's affidavit testimony that he "did not observe any defects concerning the operation of the subject elevator prior to plaintiff's accident."

(2)

Res Ipsa Loquitur Is Applicable

Rotondo's complaint against Al-an Elevator also withstands summary dismissal because Rotondo has established a prima facie case of negligence against Al-an Elevator under the doctrine of res ipsa loquitur. The Appellate Division, Second Department has held that:

"[i]n our State, submission of a particular case to the triers of fact on the theory of res ipsa, with appropriate instruction by the court, is indicated where a 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 [*10]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 El. Co., 97 AD2d 197, 203 [1983] [holding that doctrine of res ipsa loquitur applicable against elevator maintenance company because essential elements of doctrine established by circumstantial evidence], quoting Corcoran v Banner Super Market, 19 NY2d 425, 430 [1967], mod on remittitur 21 NY2d 793 [1968]); see also Fyall v Centennial El. Indus., Inc., 43 AD3d 1103, 1104 [2007] [holding that "proof that the rapid descent and abrupt, misaligned stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence, that the maintenance and service of the elevator was within the exclusive control of Centennial, and that no act or negligence on the plaintiff's part contributed to the happening of the accident, is a basis for liability under the doctrine of res ipsa loquitur"]).

In Carrasco v Millar El. Indus. (305 AD2d 353, 354 [2003]), a personal injury action arising out of an incident where an elevator suddenly stopped and began to shake and vibrate, the Appellate Division, Second Department held that summary judgment for the elevator maintenance company was unwarranted because there was "an issue of fact as to whether the [malfunction] is an event that would not ordinarily occur were due care exercised in the elevator's maintenance." The appellate decision explained in Carrasco that the plaintiff raised a triable factual issue as to the applicability of the theory of res ipsa loquitur where the elevator was in the elevator maintenance company's possession and control and the plaintiff did not contribute to the elevator malfunction.

The Appellate Division, First Department has held that the "exclusivity" requirement regarding possession and control over an elevator for purposes of applying the resp ipsa loquitur doctrine "is a relative term, not an absolute" (Burgess v Otis El. Co., 114 AD2d 784, 787 [1985], affd 69 NY2d 623 [1986]). The court further held that the "exclusivity" requirement is met where a building owner relied upon the elevator maintenance company's "expertise to inspect and maintain the intricate devices of the elevator in reasonably safe operating condition, pursuant to the service contract" (Burgess, 114 AD2d at 787; see also Bigio v Otis El. Co., 175 AD2d 823, 824 [1991] [holding that "the elevator was in the defendant's exclusive control as a result of a service contract with the building owner"]).

Here, Rotondo has raised a triable issue of fact, through the testimony of her expert, Patrick Carrajat, regarding Al-an Elevator's liability under the doctrine of res ipsa loquitur. Carrajat's uncontroverted testimony raises an inference that the Elevator Accident arose from Al-an Elevator's negligence in servicing the subject elevator. A jury may reasonably infer that the elevator door malfunction is an event that would not occur in the absence of negligence. Furthermore, Al-an Elevator is deemed to have had possession and control over the subject elevator based on Luna Park and Elliman's reliance upon Al-an Elevator's expertise to inspect and maintain the elevators at the Luna Park Building in reasonably safe operating condition. Documentary and testimonial evidence supports Rotondo's expert's opinion that "the subject elevator was under the exclusive control of AL'AN by virtue of their maintenance agreements for the subject elevator they installed."

Finally, there is no record evidence that Rotondo had any control over, or tampered with, the elevator door or the sensor signal that controls the operation of the elevator door. Video surveillance of the Elevator Accident captured Rotondo's reaction to the elevator door malfunction and, contrary to defendants' contentions, does not evidence that Rotondo tampered with the door's stop sensor or otherwise contributed to the happening of the Elevator Accident. Defendants' argument that Rotondo contributed to, or caused, the Elevator Accident is also belied by Elliman's Luna Park Incident Report, in which Elliman expressly concedes from a review of the video surveillance that "the resident's report appears accurate. The door opened, she started through the door and it closed fairly rapidly on her." Accordingly, Rotondo has stated a prima facie claim for defendant Al-an Elevator's negligence based on the doctrine of res ipsa loquitur.

(3)

Defendants' Cross Claims

Defendants seek summary judgment dismissing all cross claims asserted against them without providing any legal basis for such dismissal. Specifically, Luna Park and Elliman seek dismissal of Al-an Elevator's cross claims asserted against them for (1) indemnification and/or [*11]contribution; (2) primary liability, in whole or in part "by reason of the sole, active and primary carelessness, recklessness, negligence, breach of contract, breach of warranty, strict products liability and/or affirmative acts of commission or omission by the co-defendants" and (3) breach of contract for failing to procure liability insurance naming Al-an Elevator as a named insured.

Al-an Elevator similarly seeks dismissal of the cross claims asserted against it by Luna Park and Elliman for (1) contractual and common law indemnification; (2) contribution; and (3) indemnification "to the extent [Al-an Elevator] failed to procure liability insurance as required under any written contract in favor of the answering defendants."

Indemnification And Contribution

The Appellate Division, Second Department has held that "[c]ommon-law indemnification is warranted where a defendant's role in causing the plaintiff's injury is solely passive, and thus its liability is purely vicarious" (Balladares v Southgate Owners Corp., 40 AD3d 667, 671 [2007]). Conversely, "a party which has actually participated in the wrongdoing is not entitled to indemnification" (Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792, 796 [2007]). A party must demonstrate the absence of negligence on its part to establish a prima facie claim for indemnification (Balladares, 40 AD3d at 671). The Appellate Division, First Department has held that a cross claim for contribution arising from an elevator accident is appropriate where there is "circumstantial evidence of sufficient probative force to permit a jury to infer negligence" (see Thomas v Rosen Group Props., 130 AD2d 451 [1987], appeal dismissed 70 NY2d 927 [1987]).

Here, as previously discussed, issues of fact exist regarding defendants' respective liability for negligence based on documentary evidence that the subject elevator required frequent repairs and was removed from service many times before the Elevator Accident. In other words, all of the defendants seemingly had some level of awareness that there were operational problems with the subject elevator before the Elevator Accident, which may warrant negligence liability.

However, paragraph 5 of the 2001 Elevator Maintenance Contract contains an indemnification provision under which Al-an Elevator agreed to hold Luna Park and Elliman "harmless from and against all loss, cost, liability or expense caused or incurred by reason of the acts or failure to act of Contractor . . . arising out of or resulting from Contractor's obligations hereunder and/or Contractor's performance of the Work." Importantly, Al-an Elevator specifically assumed liability for injury arising out of Al-an Elevator's maintenance and/or repair of Luna Park's elevators "independent of any question of negligence on its part" under paragraph 8 of the 2001 Elevator Maintenance Contract.

Luna Park and Elliman have legally viable cross claims for indemnification and contribution from Al-an Elevator under the express terms of the 2001 Elevator Maintenance Contract, the only executed maintenance contract in the record. Indeed, Al-an Elevator specifically assumed liability for any elevator-related injury under the 2001 Elevator Maintenance Contract. Consequently, Al-an Elevator is precluded from seeking any damages from Luna Park and Elliman "independent of any question of negligence on its part." Consequently, an order is warranted (1) denying Al-an Elevator's motion to summarily dismiss Luna Park and Elliman's indemnification and contribution cross claims, and (2) granting the motion by Luna Park and Elliman for summary judgment dismissing Al-an Elevator's cross claims for indemnification and contribution.

Liability Insurance Coverage

Defendants Al-an Elevator, Luna Park and Elliman also seek summary judgment dismissing the respective cross claims asserted against them regarding the procurement of liability insurance. Luna Park asserted a cross claim against Al-an Elevator for contractual indemnification to the extent that Al-an Elevator did not procure liability insurance for Luna Park and Elliman in accordance with the terms of the 2001 Elevator Maintenance Contract. Al-an Elevator, in turn, has asserted a cross [*12]claim against Luna Park and Elliman for breach of the parties' "agreement" in failing to procure insurance naming Al-an Elevator as an insured.

The 2001 Elevator Maintenance contract specifically requires that Al-an Elevator maintain liability insurance for personal injury with a minimum of $2 million in coverage per occurrence, naming Luna Park and Elliman as additional insureds. Al-an Elevator agreed to maintain insurance coverage under the 2001 Elevator Maintenance Contract during the five-year contract term "and for a period of two years after the expiration or termination hereof." Therefore, Al-an Elevator specifically agreed to procure liability insurance coverage for Luna Park and Elliman at all relevant times.

Al-an Elevator's cross claim for breach of contract, on the other hand, lacks merit because no evidence shows that Luna Park or Elliman agreed to procure liability insurance for Al-an Elevator's benefit. Al-an Elevator, in contrast, specifically agreed in the 2001 Elevator Maintenance Contract to procure and maintain liability insurance naming Luna Park and Elliman as additional insureds. Hence, an order is warranted (1) granting Luna Park and Elliman's summary judgment motion dismissing Al-an Elevator's cross claim for breach of contract, and (2) denying Al-an Elevator's summary judgment motion. Accordingly, it is

ORDERED that the branch of Al-an Elevator's summary judgment motion to dismiss the complaint is denied; and it is further

ORDERED that the branch of Luna Park and Elliman's summary judgment motion to dismiss the complaint is denied; and it is further

ORDERED that the branch of Al-an Elevator's summary judgment motion to dismiss the cross claims asserted against it is denied; and it is further

ORDERED that the branch of Luna Park and Elliman's summary judgment motion to dismiss Al-an Elevator's cross claim asserted against them is granted.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1:Plaintiff filed a Note of Issue on or about December 8, 2010.

Footnote 2:The 2001 Elevator Maintenance Contract reflects that it was executed by Al-an Elevator on December 19, 2001 and by Luna Park on January 7, 2002. Section A, subd 13 of the 2001 Elevator Maintenance Contract states that it has a five-year term which "shall commence upon a date, mutually agreeable to by all parties."

Footnote 3:Al-an Elevator claims that the 2007 Elevator Maintenance Contract was in effect on August 14, 2007, the date of the Elevator Accident, while Luna Park and Elliman contend that the more comprehensive 2001Elevator Maintenance Contract was then in effect. Significantly, the 2007 Elevator Maintenance Contract in the record is only executed by Al-an Elevator. Thus, defendants Luna Park and Elliman characterize the 2007 Elevator Maintenance Contract as an "unsigned proposal from Al'an to Luna Park."

Footnote 4:The 2001 Elevator Maintenance Contract provides that the monthly fee for maintenance services shall be $7,100 per month, while the 2007 Elevator Maintenance Contract provides that the "Base Contract Price For Preventive Maintenance Service" shall be $7,390 per month.