Cullen v PWV Acquisition, LLC

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Cullen v PWV Acquisition, LLC 2018 NY Slip Op 31972(U) July 20, 2018 Supreme Court, New York County Docket Number: 450299/16 Judge: Nancy M. Bannon Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 1] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 42 ------------------~----------------------x ANN JANE CULLEN, Plaintiff Index No. 450299/16 v DECISION AND ORDER PWV ACQUISITION, LLC, et al., Defendants. MOT SEQ 006, 007 -----------------------------------------x NANCY M. BANNON, J.: I. INTRODUCTION In this action to recover damages for personal injuries arising from an elevator accident, the defendants PWV Acquisition, LLC, UES Management Company, LLC, Larry Gluck, and The Chetrit Group, LLC (collectively the PWV defendants), move (SEQ 006) for summary judgment dismissing the complaint against them and on their cross claim for contractual indemnification against the defendant Nouveau Elevator Industries, Inc. (Nouveau) . Nouveau moves (SEQ 007) for summary judgment dismissing the complaint and all cross claims against it. The motions are denied. II. BACKGROUND It is undisputed that, on January 28, 2015, an elevator door closed on the plaintiff's left arm as she exited the elevator in 1 2 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 2] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 her apartment building, and that she fell to the floor of the elevator's cab. It is also undisputed that the elevator door was equipped with electronic sensors that should have caused it to open when a physical presence was detected in the elevator doorway, but that the door nonetheless came into contact with the plaintiff. The plaintiff alleges that the PWV defendants, as owners and managers of the building, owed her a duty to mainta~n the elevator in a safe condition, breached that duty by permitting the elevator door to remain in an unsafe condition, and had The plaintiff further asserts actual notice of this condition. that .the doctrine of res ipsa loquitur is applicable to her claims against the PWV defendants. The plaintiff also claims that Nouveau negligently inspected and misadjusted the door's settings, so that it remained open for an insufficient period of time, and it closed at too great a speed with excessive force. In support of their motion, the PWV defendants rely on the pleadings and the deposition transcripts of the parties, including its doorman, Hector Martinez, who also submits an affidavit, its property manager, Kyle Friedland, and Nouveau's elevator inspector, Larry Lewandoski. They also submit a video recording of the accident authenticated by the building's superintendent, the affidavit of its retained engineer, Nicholas A. Ribaudo, elevator ins~ection records, repair records, and the 2 3 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 3] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 elevator maintenance contract with Nouveau. The elevator inspection records include a statement of service calls and inspections made by Nouveau during 2014 and 2015 with respect to the subject elevator, and a work ticket for an inspection dated January 26, 2015, which was two days prior to the accident. Ribaudo asserts that he viewed the video, calibrated the timing of the accident, and inspected the elevator. He concludes that the elevator door was neither dangerous nor defective, as it generated less than the maximum force permitted by law, and that the time the door took to close after it was completely open was in excess of the minimum closing time required by the New York City Building Code. Although Ribaudo noted that the door did not instantaneously retract when it struck the plaintiff, he opined that the .25 seconds between contact and retraction was almost instantaneous, and there was no defect in the retraction mechanism. Documents submitted by the PWV defendants show that the elevator passed a City inspection 10 months prior to the accident, and that Nouveau had inspected it two days prior to the accident, and found nothing wrong. Friedland asserts that he never observed anything wrong with the elevator door, and did not remember receiving any oral or written complaints about it. Although Martinez makes similar assertions in his affidavit and generally throughout his deposition, he also testified at his 3 4 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 4] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 deposition that he -did receive complaints prior to the date of the accident that the elevators were either not steady, "the doors don't move, or they close, you know." Lewandoski testified at his deposition that, other than the PWV defendants, only Nouveau had access to the elevator controls. I He also stated that Nouveau's records reflected that it made a service call to repair an elevator roller on the 14th floor of the building on December 10, 2014, but that this repair was specific to hardware installed in the door frame on that floor. Lewandoski further a~serted that, based on his understanding of Nouveau's records, Nouveau made routine inspections of the subject elevator on November 10, 2014, December 11, 2014, and January 26, 2015, but that none of those visits involved repairs, adjustments, alterations, or the replacement of parts. Nouveau relies on the same submissions, and also submits an Nouveau notes that, at his unsworn report from an engineer. deposition, Lewandoski testified that he inspected ~he elevator within one hour after the accident, and that the elevator was found to be operating properly, requiring no repairs or adjustments. Lewandoski asserted that the subject elevator door is equipped with a series of 60 infrared light beams spaced at one-inch intervals along its edge and that, when an object passed in front the beam, the door was supposed to open. He further asserts that Nouveau received no prior complaint about the speed 4 5 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 5] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 or force with which the door closed. Lewandosk~ testified that he also viewed the video, and that it showed that the elevator door merely brushed the plaintiff's arm when it began to close. He further testified that it was feasible to adjust both the force generated by the elevator door would when it closed, the time it could remain open before it began to close again, and the speed at which it would close. In opposition to the motions, the plaintiff relies on her own deposition testimony, the video, the deposition testimony of non-party witness Christian Diekman, and an affidavit from her retained engineer, Patrick A. Carrajat. Both the plaintiff and Diekman testified at their depositions that, contrary to the assertions made by Martinez and Friedland, numerous complaints had been made to doormen, the building's handyman, and the building superintendent that the elevator door frequently closed too qu~ckly elderly passengers, and thus posed a danger. upon unsuspecting Carrajat, who personally inspected the elevator in 2016, and viewed the video of the accident, opines that, as of the accident date, the doors did not meet the most current standards of the American Society of Mechanical Engineering, which require that closing elevator doors equipped with infrared sensors do not come into contact with passengers. He-concluded that, based on his calibrations, the door closed after only two seconds during the course of the 5 6 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 6] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 accident, and thus less than the three seconds calculated by Ribaudo and the_ minimum required by Code. that, contrary to without R~baudo's further·test~ng the date of the parameters. wha.t a~cident, He further states conclusion, it cannot be known fo~ce was generated by the door on or whether it was within Code Cairajat also asserts that adjustments could have and should have been made to the door prior to the accident to allow it to remain open for longer than the three seconds that Ribaudo claimed was sufficient, and ta generate less force than -that which struck the plaintiff. III. DISCUSSION A. Standard For Summary Judgment Motions It is well settled that the movant on a summary judgment motion "must make a prima facie showi~g of entitlement to judgment as. a matter of law, tendering sufficient evidence to eliminate any material issues of fact £rom the case." Winegrad v New York Univ. Med. Ctr., ~4 NY2d 851, 853 (1985). must be supported by evidence in admissible form. The motion See Zuckerman v City of ~ew York, '49 NY2d 557 [1980]) The "facts must be viewed in the light most favorable to the non-moving party." Restani Constr. Coro., 18 NY3d 499, 503 (2012) quotation marks and citation omitted) . Vega v (internal Once the movant meets its burden, it is incumbent upon the non-moving party to establish 6 . 7 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 7] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 the existence of material issues of fact. See id., citing Alvarez v Prospect Hosp., 68 NY2d 320 (1986). In decidiAg a summary judgment motion, the court must be mindful that "'summary judgment is a drastic remedy, the procedural equivalent of a trial. It should not be granted where there is any doubt about the issue.'" Bronx-Lebanon Hospital Ctr. v Mount Eden Ctr., 161 AD2d 480, 480 (1st Dept. 1990) quoting Nesbitt v Nimmich, 34 AD2d 958, 959 (2nd Dept. 1970). B. Obligation of Property and Elevator Repair Contractors Owne~s An owner of an apartment building has a "nondelegable duty under Multiple Dwelling Law repair" § 78 to keep its premises in good (Bonifacio v 910-930 S. Blvd., 295 AD2d 86, 91 [1st Dept. 2002]), and that duty "includes elevator maintenance." Id.; see Cole v Homes for the Homeless Inst., Inc., 93 AD3d 593 (1sc Dept. 2012). A plaintiff who seeks to hold an owner or its managing agent liable for injuries caused by a defective elevator must prove either that (1) the owner or managing agent created the condition or had actual or constructive notice of the defect, but failed to take appropriate steps to remedy the problem or (2) the doctrine of res ipsa loquitur is applicable. See Ezzard v One E. Riv. Place Realty Co., LLC, 129 AD3d 159, 162-163 (1st Dept. 2015). A property owner can thus be held liable "where it fails to notify the elevator company with which it has a maintenance 7 8 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 8] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 and repair contract about a known defect.n City, Inc., 97 AD3d 811, 812 (2~ Tucci v Starrett Dept 2012). With respect to such known defects, "the absence of a Building Code violation is not tantamount to the absence of negligence. [C]ompliance with statutory or regulatory enactments does not preclude a finding that the defendant violated a common-law duty. Irrespective of the absence of a statutory obligation, the landlord remains subject to the common-law duty to take minimal precautions to protect tenants from foreseeable harm.n Kelly v Metropolitan Ins. & Annuity Co., 82 AD3d 16, 23 Dept. 2011) (1st (citation and internal quotation marks omitted) "An elevator company which agrees to maintain an elevator in safe operating ~ondition 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.n Rogers v Dorchester Assoc., 32 NY2d 553, 559 (1973). inference of ne~ligent An inspection and repair may be drawn from the door's prior malfunction. See Scafe v Schindler Elev. Corp., 111 AD3d 556 (1st Dept. 2013); Fanelli v Otis El. Co., 278 AD2d 362 (2~ Dept. 2000). Although the movants demonstrated, prima facie, that the elevator was neither defective nor dangerous, the plaintiff raised a triable issue of fact with Carrajat's affidavit that the elevator door was indeed defective and posed a danger. With respect to the issue of whether the PWV defendants had prior notice of any problems with the elevator door, their own 8 9 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 9] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 submissions reflect that Martinez knew about problems with the closing of the door, and Friedland's statement that he did not remember any complaint is insufficient to establish that there were no such complaints. In any event, the plaintiff raised a triable issue of fact in this regard with her own testimony and that of Diekman that the defendants had prior notice of the condition and defective nature of the elevator door. This proof is further sufficient to raise a triable issue of fact as to whether the PWV defendants also breached their duty to notify Nouveau of a known problem with the elevator door. Bertelsmann Prop., 21 AD3d 712 See Santoni v (1st Dept. 2005). D. Res I6sa Loguitur The movants' submissions reveal the existence of a triable issue of fact as to whether the plaintiff may rely on the doctrine of res ipsa loquitur. "Res ipsa loquitur permits a factfinder to infer negligence based upon the sheer occurrence of an event where a plaintiff proffers sufficient evidence that (1) the occurrence is not one which ordinarily occurs in the absence of negligence; (2) it is caused by an instrumentality or agency within the defendant's exclusive control; and (3) it was not due to any voluntary action or contribution on the plaintiff's part. If a plaintiff establishes these elements, then the issue of negligence should be given to a jury to decide." Ezzard v One E. Riv. Place Realty Co., LLC, supra, at 162-163 (citations omitted) . The First Department has articulated "a 9 10 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 10] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 long established jurisprudence . recognizing that elevator malfunctions do not occur in the absence of negligence, giving rise to the possible application of res ipsa loquitur." Id. at 163; see Gutierrez v Broad Fin. Ctr., LLC, 84 AD3d 648, 649 (Pt Dept. 2011); Dubec v New York City Hous. Auth., 39 AD3d 410(1st Dept. 2007); Ardolaj v Two Broadway Land Co., 276 AD2d 264 (1st Dept. 2000); Dickman v Stewart Tenants Corp., 221 AD2d 158 (1st Dept. 1995); Burgess v Otis El. Co., 114 AD2d 784 1985), affd 69 NY2d 623 (1986). (1st Dept. Thus,. where, as here, there is testimony that an elevator door suddenly and unexpectedly closed, the evidentiary doctrine of res ipsa loquitur may apply. Lilly v City of New York, 161 AD3d 461 See (1st Dept. 2018); Barkley v Plaza Realty Invs., Inc., 149 AD3d 74 (1st Dept. 2017); Ianotta v Tishman Speyer Props., Inc., 46 AD3d 297 (1st Dept. 2007). Further, exclusive possession and control by the PWV defendants need not be absolute for the doctrine to apply, and the concept is not to be rigidly applied. Rather, as long as their possession and control are of such a character that the probability that the negligent acts complained of were committed by someone else is so remote that it is fair to permit an inference that they were negligent, they are deemed to have exclusive control. York, 44 NY2d 417 See De Witt Properties, Inc. v City of New (1978) .. The PWV defendants argue that they did not exercise 10 11 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 11] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 exclusive control over the elevator, but instead contractually ceded all responsibility for the daily operation of the elevator to Nouveau, and had no role in inspecting, maintaining, or repairing the elevator~. However, a building owner may only avoid applicability of the doctrine of res ipsa loquitur where an elevator maintenance company's control over every aspect of an elevator is "absolute. ,, Hodges v Royal Realty Corp., 42 AD3d 350, 352 (pt Dept. 2007) ; see Sanchez v. New Scandic Wall L. p., 145 AD3d 643 (pt Dept. 2016); Fasano v Euclid Hall Assoc., L. p.' 136 AD3d 478 (pt Co., LLC, supra. Dept. 2016); Ezzard v One E. Riv. Place Realty The contract submitted by the PWV defendants does not establish that Nouveau's control over every aspect of elevator maintenance was absolute. The four-page elevator maintenance contract merely states that it is a "full-service contract," but does not describe what that term entails. Moreover, unlike the maintenance contracts at issue in Sanchez, Fasano, and Hodges, the contract here does not prohibit entities other than Nouveau from making alterations, additions, adjustments, repairs, or replacements, contains no specific language by which the PWV defendants ceded all responsibility for the daily operation of the elevators to Nouveau, and does not require Nouveau to provide a mechanic on site to handle all service, inspection, and repair calls. Hence, the PWV defendants cannot rely on the service contract to absolve it of liability 11 12 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 12] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 under the doctrine of res ipsa loquiiur. Morever, Lewandoski's deposition testimony, upon which the PWV defendants rely, reflects that Nouveau's inspections in November 2014, December 2014, and January 2015 did not involve the alteration, adjustment, repair, or replacement of any parts or systems of the elevator, but only observations of the condition of the elevator. As such, the.PWV defendants' submissions reveal the existence of a triable issue of fact as to whether Nouveau exercised control over the elevators sufficient to vitiate the PWV defendants' exclusive control. Yeboah v Metro-North Commuter R.R., 25 NY3d 2015 See Barney(2015), revg 120 AD3d 1023 (1st Dept. 2014); Meade v OTA Hotel Owner LP, 76 AD3d 470 (1st Dept. 2010); cf. Feblot v New York Times Co., 32 NY2d 486 (1973) (res ipsa loquitur is inapplicable since extent of plaintiff's control over elevator was equivalent to defendant's) The PWV defendants thus failed to make a prima facie showing that the doctrine of res ipsa loquitur is inapplicable, and summary judgment must be denied regardless of the sufficiency of the plaintiff's opposition papers. In any event, as the plaintiff correctly notes in her opposition papers, the doctrine may be applied even where the owner/manager and. elevator repair company jointly exercise "exclusive control" over the elevator. As explained by the First Department, res ipsa loquitur may be applicable where, as here, "[t]he mechanism of injury related to 12 13 of 15 [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 13] INDEX NO. 450299/2016 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 08/14/2018 the electronic eye and the door operator and controller . which were inaccessible to the general public and in the exclusive control of defendant owner/managers and the elevator repair company." 79 Barkley vPlaza Realty Invs., Inc., supra, at (emphasis added); see Rogers v DorchesterAssocs., supra. D. Cross Claims Contractual indemnification is available to a party only where that party is itself free from fault in the happening of the underlying accident. (l); Rodrigu~z v Hetitage Hills Socy., Ltd., 141 AD3d 482 Dept. 2016); Cuortio v 53rd Dept. 2013). See General Obligations Law§ 5-322.l .& 2nd Assoc., LLC, 111 AD3d 548 (1st (Pt Since it has yet to be determined whether any of the movants was negligent, and the parties have made no definitive showing here that could resolve that issue on papers, those branches of their motions which are addressed to the PWV defendants' third cross claim against Nouveau, which is for contractual indemnification, are premature. See Miranda v Nor star Building Corp., 7 9 AD3d 4 2 (3rd Dept. 2010) . Since the parties' submissions reveal that there are triable issues of fact as to whether Nouveau was free fr9m negligence, that branch of its motion which is for summary judgment dismissing the PWV defendants' first cross contribution, ~ust be denied as well. 13 14 of 15 clai~, which is for [*FILED: NEW YORK COUNTY CLERK 08/14/2018 09:26 AM 14] NYSCEF DOC. NO. 222 INDEX NO. 450299/2016 RECEIVED NYSCEF: 08/14/2018 Finally, although Nouveau also nominally moves for summary judgment dismissing the second cross claim asserted against it by the PWV defendants, which seeks to recover for failure to procure insurance, it does not address this cross claim in its moving papers. It has thus failed to establish its prima facie entitlement to judgment as a matter of law dismissing that cross claim, and that branch of its motion which is addressed to that cross claim must be denied. IV. CONCLUSION Accordingly, it is ORDERED that the motion of the defendants PWV Acquisition, LLC, UES Management Company, LLC, Larry Gluck, and The Chetrit Group, LLC (SEQ 006), for summary judgment dismissing the complaint against them and on their third cross claim, which is for contractual indemnification, against the defendant Nouveau Elevator Industries, Inc., is denied; and it is further, ORDERED that the motion of the defendant Nouveau Elevator Industries, Inc. (SEQ 007), for summary judgment dismissing the complaint and all cross claims against it is denied. This constitutes the Decision and Order of the court. Dated: July 20, 2018 ENTER: HON. NANCY M. BANNON 14 15 of 15

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