Ramirez v Northern Blvd. 4818 LLC

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[*1] Ramirez v Northern Blvd. 4818 LLC 2017 NY Slip Op 51484(U) Decided on October 31, 2017 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 31, 2017
Supreme Court, Queens County

Cleotilde Juarez Ramirez, Plaintiff,

against

Northern Blvd. 4818 LLC, FOREST CITY NORTHERN ASSOCIATES II, LLC, FIRST NEW YORK PARTNERS MANAGEMENT, LLC, and OTIS ELEVATOR COMPANY, Defendants.



6529/2014
Robert J. McDonald, J.

The following papers numbered 1 to 29 read on this motion (seq. no. 7) by defendants NORTHERN BLVD. 4818 LLC, FOREST CITY NORTHERN ASSOCIATES II, LLC, and FIRST NEW YORK PARTNERS MANAGEMENT, LLC for an Order pursuant to CPLR 3212, granting summary judgment in favor of said defendants and dismissing all claims and cross-claims against them; on this cross-motion (seq. No. 7) by plaintiff CLEOTILDE JUAREZ RAMIREZ for an Order granting spoliation sanctions against defendants Northern Blvd. 4818 LLC, Forest City Northern Associates II, LLC and First New York Partners Management, LLC for destroying or failing to preserve evidence relevant to this action and costs; and on this motion (seq. no. 8) by defendant OTIS ELEVATOR COMPANY for an order pursuant to CPLR 3212 granting said defendant leave to file its motion for summary judgment late and, upon granting leave, granting summary judgment in favor of said defendant and dismissing all claims and [*2]cross-claims against it:



Papers/Numbered

Notice of Motion(seq. no. 7)-Affirmation-Exhibits 1 - 4

Affirmation in Support 5 - 6

Affirmation in Opposition-Exhibits 7 - 9

Reply Affirmation 10 - 11

Notice of Cross-Motion(seq. no. 7)-Affirmations-Exhibits 12 - 16

Affirmation in Opposition to Cross-Motion-Exhibits 17 - 19

Notice of Motion(seq. no. 8)-Affirmation-Exhibits-Memo. of Law 20 - 24

Affirmation in Opposition-Exhibits 25 - 27

Reply Affirmation 28 - 29

This is an action to recover damages for personal injuries allegedly sustained on May 23, 2013 on the premises known as the Shops on Northern and located at 48-18 Northern Boulevard, Long Island City, New York. Plaintiff alleges that she was caused to fall down an up escalator at the subject premises after she hit a piece of broken metal on the right side of the escalator. First New York Management manages the premises. FC Northern Associates II, LLC was the ground lessee of the subject premises. Northern Blvd. 4818 is an out of possession ground lessor. At the time of the incident, there was a contract between Forest City Enterprises and Otis Elevator Company (Otis) for preventative maintenance, service, and repair of all of the elevators and escalators at the subject premises.

Plaintiff commenced this action on June 20, 2014 by filing a summons and complaint. The complaint was amended to add additional defendants. All defendants joined issue by filing answers with cross-claims. On April 13, 2017, the parties stipulated that summary judgment motions shall be made returnable no later than July 25, 2017, and the matter was restored to the Trial Calendar Part's Calendar for November 14, 2017. All defendants now move for summary judgment on the grounds that the subject escalator was in safe, proper, and working condition on and prior to the date of the incident. Plaintiff cross-moves against Northern Blvd. 4818 LLC, Forest City Northern Associates II., LLC and First New York Partners Management, LLC for spoliation sanctions on the grounds that defendants failed to preserve video tape surveillance footage as well as inspection log books.

Initially, Otis acknowledges that its summary judgment motion is late as the motion was not made returnable on or before July 25, 2017. Otis contends that its motion involves identical issues and is supported by the same proof as the timely served and filed motion for summary judgment by co-defendants. In opposition, plaintiff contends that Otis failed to demonstrate good cause for the delay in making the motion.

An untimely motion for summary judgment may be considered if the untimely motion was made on nearly identical grounds as the timely motion (Vitale v Astoria Energy II, LLC, 138 AD3d 981 [2d Dept. 2016]; Wenicki v Knipper, 119 AD3d 775 [2d Dept. 2014]; Grande v Peteroy, 39 AD3d 590 [2d Dept. 2007]). Here, Otis' motion for summary judgment is based upon identical ground as the timely motion filed by co-defendants. As such, this Court will consider Otis' summary judgment motion herein.

Plaintiff was deposed on August 14, 2015, August 21, 2015, September 8, 2016, February 24, 2016, and February 26, 2016. She testified that on the date of the incident, she, along with her husband, Alejandro Amador Perez, four year old son, and one year old son, left their apartment and intended to go to Chuck E. Cheese located on the second floor at the subject premises. They were using a three-wheel, athletic type stroller to transport their baby. Upon leaving the apartment, they folded the stroller and carried the baby down the stairs at their residence. When they got in the taxi, they took the baby out of the stroller and folded it. When they arrived at the subject premises, they put the baby in the stroller and entered the building from 48th Street. Mr. Perez was pushing the stroller. They walked to the elevator. She pushed the button and waited five or six minutes for the elevator to come. The elevator did not come, so they went to the escalator. Mr. Perez backed the stroller with the baby in it onto the escalator. He was riding the escalator backwards. Mr. Perez positioned the stroller so that the two rear wheels were on the escalator and were five to six centimeters from the right edge of the escalator. The front tire was in the air. She then got onto the escalator with her four year old son, approximately three to four steps behind Mr. Perez and the stroller. The stroller was facing her. Plaintiff was standing on the same step as her son, holding him with her left hand and holding the handrail with her right hand. She was standing such that her right foot was close to the right edge of the escalator, scraping against the black hairs of the right edge of the escalator. She was about a quarter of the way up the escalator when her right shin was struck by a broken piece of metal sticking up from the right side of the escalator. Mr. Perez and the stroller had already passed the point of the escalator where the piece of metal struck her right leg. When the piece of metal hit plaintiff, she screamed, fell on her knees, and then fell backwards onto the escalator. She pulled her four year old son on top of her chest. Mr. Perez let go of the stroller at some point and the stroller got stuck on the escalator with the baby strapped inside. She and her son continued up the escalator on her back, passed underneath the stuck stroller and got out at the top of the escalator. After she got to the top of the escalator, she ran to the Guitar Center to get help while Mr. Perez tried to run down the up moving escalator to get to the stuck stroller. An employee from the Guitar Center came out and hit the stop button on the escalator. Immediately after the incident, Mr. Perez took photographs of the broken piece of metal that struck her right shin. The piece of metal with the duct tape around it is what hit her leg.

Alejandro Amador Perez appeared for an examination before trial on July 28, 2015. He testified that after arriving at the subject premises on the date of the incident, they went to the elevator, pushed the button to go to the second floor and waited two to three minutes. After waiting for the elevator, they decided to take the escalator, which was approximately ten feet away. Before getting on the escalator, Mr. Perez did not observe anything wrong with the escalator. As he went up the escalator backwards with the baby in the stroller, he heard a loud noise. He saw plaintiff fall down the escalator. He let go of the stroller. The stroller flipped up and struck the escalator on a triangular position so that the wheels of the stroller were in the air with the baby still strapped inside. The stroller got stuck between the walls of the escalator, halfway up the escalator.

Eira Feliciano appeared for an examination before trial on September 16, 2016. She testified that she was the property manager at the time of the subject incident. She was notified of the incident by an employee of Chuck E. Cheese. She arrived to the scene. There were warning [*3]signs at the base of the escalator that warned people not to bring strollers onto the escalator.

There is one set of escalators and one elevator leading to the second floor at the subject premises. There was a contract between Forest City Enterprises and Otis for preventative maintenance, service, and repair of all of the elevators and escalators at the subject premises. The contract was effective May 1, 2012 through December 21, 2013.

Alan Kimmerer appeared for an examination before trial on May 11, 2017. He testified that he was the Otis mechanic assigned to the subject location. He had been servicing elevators and escalators at the subject location since May 2012. He has been in the elevator business since 2000 and has been a union mechanic since 2005. On March 17, 2013, a call was placed by the building that a piece of metal was broken. On March 18, 2013, he repaired the escalator skirt, which is a separate and distinct component from the decking that was involved in this incident. He identified a copy of Otis Maintenance Control Records for the period of January 2013 through May 2013. On twenty-four separate occasions, an Otis mechanic tended to the escalator at the subject premises. All but one of these visits were performed by him. He testified that on each and every visit, he left the escalator in safe and proper working order. On the date of the incident, he responded to the subject premises after being advised that someone caused damage to the decking by putting a stroller on the escalator. He observed a piece of decking on the right side of the escalator being lifted from its position. He was aware of a piece of duct tape on one of the pieces of decking adjacent to the up elevator. The duct tape had been there since he started servicing the escalator. When he first saw the duct tape, he looked to see if the duct tape was holding the escalator together. There was no indication of such, and the screws were intact. He once tried to peel the duct tape off, but thought that the owner of the building would complain if the duct tape left residue on the escalator. The duct tape was not serving any functional purpose. The decking was secured with screws. The day before the incident, he tended to the subject escalator. He conducted a complete skirt and decking examination, which consisted of checking the condition and alignment of the skirt and decks on either side of the escalator. He also checked to see if there were any missing or damaged screws, any physical damage to the deck itself, and if the deck were loose or misaligned. The decking was in proper condition at that time. When he left the premises on May 22, 2013, all of the screws were in place and tightened.

Yuri Cuellar appeared for an examination before trial on May 8, 2017. He testified that he was assigned to the subject premises on and before the date of the alleged incident. On the date of the incident, he worked from 6:00 a.m. to 2:00 p.m. Each day when he arrives at work, including the date of the incident, he cleans the escalator including each individual step as well as the sides of the escalator. He also turns the escalator on with a key and rides it. On the morning of the subject incident, he did not observe any problems with the escalator, and he did not observe any pieces of metal sticking out. No one ever complained to him about problems with the escalator. Throughout the course of his shift on the date of the incident, he rode the escalator approximately fifteen times. If he had observed metal sticking out of the side of the escalator, he would have shut the escalator down and called Otis. Before he left the subject premises at 2:00 p.m., he checked the escalator and did not observe any defects or problems. When he left, the escalator was in proper working order and there was no metal sticking up.

Based on the above deposition testimony, defendants contend that the escalator was in [*4]proper working order on the date of the subject incident. Additionally, defendants contend that they had no duty to warn plaintiff of the open and obvious danger of bringing the stroller onto the moving escalator.

In opposition, plaintiff submits the expert affidavit of Patrick A. Carrajat dated August 19, 2017. Prior to rendering his affidavit, Mr. Carrajat reviewed deposition testimony, photographs, the bill of particulars, legal pleadings, EMS Ambulance Report, service and repair records produced by Otis, and the inspection and violation history of the elevator from the online records of the New York City Department of Buildings, Elevator Division relating to the subject escalator. He also examined the subject escalator on April 4, 2016. Mr. Carrajat concludes that: the proximate cause of the incident and plaintiff's injuries was the damaged and improperly repaired section of the inner deck; there is no evidence that the stroller was the cause of the incident; plaintiff was using the escalator in its intended manner and did not do anything to cause or contribute to the incident; and the signage using only English and homograph representations of a stroller were insufficient. Mr. Carrajat further opines that a piece of the inner deck will not become loosened and injure a passenger in the normal operation of an escalator absent negligence in its maintenance and repair. Additionally, repairing the inner deck with duct tape is highly improper. Lastly, Mr. Carrajat opines that the duct tape could not have existed before January 4, 2013 as no inspector would pass an escalator with a duct tape repair.

Plaintiff's counsel contends that defendants failed to meet its burden by failing to produce an expert or witness affidavit explaining why the metal decking was broken at the time of the incident. Additionally, counsel contends that, at the very least, issues of material fact are present.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

A property owner has a nondelegable duty to maintain and repair the escalators on its premises (see Isaacs v Federated Dept. Stores, Inc., 146 AD3d 762 [2d Dept. 2017]; Roberts v Old Navy, 134 AD3d 1088 [2d Dept. 2015]; Jaikran v Shoppers Jamaica, LLC, 85 AD3d 864 [2d Dept. 2011]). To demonstrate its prima facie entitlement to judgment as a matter of law, the defendant has to establish that it did not create the subject defective condition that caused the incident or have actual or constructive notice of that condition (see Isaacs v Federated Dept. Stores, Inc., 146 AD3d 762 [2d Dept. 2017]; Roberts v Old Navy, 134 AD3d 1088 [2d Dept. 2015]; Jaikran v Shoppers Jamaica, LLC, 85 AD3d 864 [2d Dept. 2011]). To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the site was last inspected prior to the incident (see James v Orion Condo-350 W. 42ndd St., LLC, 138 AD3d 927 [2d Dept. 2016]; Mehta v Stop & Shop Supermarket Co., LLC, 129 AD3d 1037 [2d Dept. 2015]).

Here, defendants submitted evidence demonstrating, prima facie, that it did not create or have actual or constructive notice of the alleged defective condition, i.e. the piece of metal which struck plaintiff's leg (see Isaacs v Federated Dept. Stores, Inc., 146 AD3d 762 [2d Dept. 2017]; Bazne v Port Auth. of NY & N.J., 61 AD3d 583 [1st Dept. 2009]; Kelly v Old Navy, 11 AD3d [*5]345 [1st Dept. 2004]). Through the testimony of Mr. Kimmerer and Mr. Cuellar, defendants established that the escalator was regularly inspected and maintained and that defendants had not received any prior complaints about the escalator prior to the incident. Specifically, Mr. Cuellar testified that he inspected the escalator less than one hour before the subject incident and it was in working order. Moreover, Mr. Kimmerer testified that he performed an inspection of the subject escalator the day before the incident, and the entire elevator, including the decking, was in safe and proper condition and defect-free when he left the premises on the date of the incident.

However, viewing the evidence in the light most favorable to the non-moving party, plaintiff proffered sufficient evidence to raise a triable issue of fact as to whether defendants had constructive notice of the defective condition. Here, both plaintiff and Mr. Perez testified that there was duct tape where the metal piece struck plaintiff's leg. Additionally, plaintiff submitted photographs taken directly after the incident evidencing the duct tape as well as caution tape inside the inner decking where the metal piece broke off and struck her leg. Although Mr. Cuellar testified that the duct tape was not functional, he does not know how the duct tape got there and never removed the duct tape. Additionally, based on Mr. Carrajat's opinion that the screws could not have been checked unless the duct tape was removed, issues of fact exist as to, inter alia, whether defendants had constructive notice of a defective condition. Accordingly, as issues of fact remain, defendants' motions for summary judgment are denied.

Turning to the cross-motion, plaintiff contends that defendants Northern Blvd. 4818, LLC, Forest City Northern Associates II, LLC, and First New York Partners Management, LLC (collectively hereinafter defendants) intentionally or negligently failed to preserve or destroyed inspection log books that contained daily, handwritten entries made by defendants' maintenance employees of their personal observations and inspections made on the date of the incident and prior to the date of the incident of the condition of the escalator. Plaintiff further contends that defendants either negligently destroyed or failed to preserve video tape surveillance footage of the incident and incident scene.

In opposition, defendants submit an affidavit from Ms. Feliciano dated October 11, 2017. Ms. Feliciano affirms that she is employed by First New York Partners Management, LLC as the property manager for the subject premises. From September 2016 to June 2017, she participated in a search for a logbook containing entries from 2013, including a search of the supply room located at the subject premises, archive boxes, and desk and office files. She was unable to locate the logbook. In addition, the building chief engineer, Richard Dzubay, the security supervisor, Stephen Blackford, the regional property manager, Tom Onorato, the administrative assistant Tiffany Williams, and the porters Yuri Cuellar, Thomas Mitchell, and Leandro Salcedo participated in the search for the logbook. Despite the search, the logbook was unable to be located. She further affirms that she conducted a search of her email account for an email sent to Jozsef Ban, security director, requesting that he preserve the footage of the first floor and second floor on the date of the incident. She was unable to locate the email.

Defendants also submit an affidavit from Jozsef Ban dated October 11, 2017. Mr. Ban affirms that he is employed by First New York Partners Management, LLC as the security director of the subject premises. His job responsibilities include maintaining the video surveillance equipment at the subject premises. No part of the escalator or escalator enclosure is [*6]captured on the video surveillance. At the time of the incident, he reviewed the surveillance video and confirmed that no part of the incident was captured on the video. Accordingly, no footage was maintained.

Based on the above affidavits, defendants contend that there is no evidence of negligent or intentional destruction of the logbook. Additionally, defendants contend that there is no evidence that the logbook would support plaintiff's claims as Ms. Feliciano testified that the porters would only make notations in the logbook if they observed a problem with the escalator. Regarding the video footage, defendants contend that based on Mr. Ban's affidavit, there is no video of the subject incident.

Upon a review of the cross-motion and opposition, this Court finds that plaintiff failed to demonstrate that defendants willfully or with a culpable state of mind actively deleted the video or destroyed the subject logbook. Moreover, as plaintiff has not been deprived of the ability to establish her case, this Court finds that no sanction is appropriate at this time (Pennachio v Costco Costco Wholesale Corp., 119 AD3d 662 [2d Dept. 2014]; Denoyelles v Gallagher, 40 AD3d 1027 [2d Dept. 2007]).

However, plaintiff is entitled to an adverse inference charge.

Accordingly, and for the above stated reasons, it is hereby

ORDERED, that the motion for summary judgment by defendants NORTHERN BLVD. 4818 LLC, FOREST CITY NORTHERN ASSOCIATES II, LLC, and FIRST NEW YORK PARTNERS MANAGEMENT, LLC (seq. no. 7) is denied; and it is further

ORDERED, that the cross-motion for spoliation sanctions by plaintiff CLEOTILDE JUAREZ RAMIREZ (seq. no. 7) is denied; and it is further

ORDERED, that the motion for summary judgment by defendant



OTIS ELEVATOR COMPANY (seq. no. 8) is denied.

Dated: October 31, 2017

Long Island City, NY

______________________________

ROBERT J. McDONALD

J.S.C.