Ling Hue Chiu v UOB Realty (USA) L.P.

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[*1] Ling Hue Chiu v UOB Realty (USA) L.P. 2018 NY Slip Op 50537(U) Decided on March 20, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 20, 2018
Supreme Court, Queens County

Ling Hue Chiu, Plaintiff,

against

UOB Realty (USA) Limited Partnership, National Westminster Bank USA and Thyssenkrupp Elevator Corporation, Defendants.



UOB Realty (USA) Limited Partnership, Third-Party Plaintiff,

against

ABM Janitorial Services and ABM Building Value, Third-Party Defendants.



19942/2013
Robert J. McDonald, J.

The papers numbered 1 to 13 read on this motion by defendant THYSSENKRUPP ELEVATOR CORPORATION for an Order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff's complaint and all cross-claims asserted against THYSSENKRUPP ELEVATOR CORPORATION:



Papers Numbered

Notice of Motion-Affirmation-Exhibits 1 - 4

UOB's Affirmation in Opposition-Exhibits 5 - 7

Plaintiff's Affirmation in Opposition-Exhibits 8 - 10

Reply Affirmation-Exhibits 11 - 13

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on March 7, 2012 while utilizing an elevator at the building located at 592 Fifth Avenue, New York, New York. The building is owned by defendant UOB Realty (USA) Limited Partnership (UOB). Defendant Thyssenkrupp Elevator Corporation (Thyssenkrupp) was providing maintenance and repair service to the elevator pursuant to a Maintenance Agreement with UOB dated January 1, 2004.

This action was commenced by filing a summons and complaint on October 29, 2013. Thyssenkrupp joined issue by service of a verified answer dated November 21, 2013. UOB joined issue by service of a verified answer dated December 30, 2013. UOB then commenced a third-party action on June 23, 2015. ABM Janitorial Services and ABM Building Value (collectively hereinafter ABM) served a verified answer to third-party complaint on July 27, 2015. Thyssenkrupp now moves for summary judgment on the ground that it did not create a defective condition and did not have actual or constructive notice of a defective condition.

Plaintiff appeared for an examination before trial on November 24, 2014. She is employed by United Overseas Bank with offices on the 10th floor of the subject building. On the date of the incident, at the end of the work day, she went to the elevator bank and pressed the button for the elevator. The subject elevator arrived, and the doors opened quicker than usual. She entered the elevator, and the doors closed at a faster than normal speed. After she pressed the lobby button, the elevator started traveling extremely fast and dropping. She grabbed the edge of the elevator button panel to avoid falling. The elevator then stopped with a lot of pressure. Her knees bent, and she was squatting slightly. Her head went forward suddenly. The elevator fell for a total of five seconds. There was no other movement of the elevator aside from the drop. Two days prior to the incident, she was alone in the subject elevator at the end of the work day when she felt a big shake and the elevator fell, coming to a hard landing at the lobby. After exiting the elevator at the lobby, she informed a security guard, Eric, that something was wrong with the elevator. Eric advised that the elevator was being worked on. During the six months prior to the subject incident, there was an additional incident, but she did not report it to anyone. From the time she began work in the building, which was seven years prior to the incident, she experienced difficulties with the elevator at least three times per year. The problems included uneven landing with the doors.

Eric Bassin appeared for an examination before trial on behalf of UOB Realty on December 17, 2014. He testified that he is employed by Newmark Grubb Knight Frank, the property manager for the subject premises. He began working at the subject premises after plaintiff's incident. He has no knowledge of what occurred on the date of the incident. On the date of plaintiff's incident, the building had a superintendent, Mark Domiczek, and a handyman/porter, Jose Cruz. Neither Mr. Domiczek not Mr. Cruz had any responsibilities regarding the elevators at the subject premises. The procedure for an elevator incident would be to contact Mr. Domiczek and Thyssenkrupp. Security for the building was handled by ABM Security. Security maintains logbooks at the lobby desk for complaints, including those regarding the elevators.

Michael De Canio appeared for an examination before trial on behalf of Thyssenkrupp on December 17, 2014. He testified that he has worked in the elevator field since 1988. He started with Central Elevator as an apprentice while getting his elevator education through Local 3. [*2]Thereafter, he earned the title of elevator maintenance mechanic. He left Central to work for Nouveau Elevator from 1994 through 2001. He then began working for Thyssenkrupp. His responsibilities as an elevator maintenance mechanic included greasing and oiling as well as handling shutdowns. The elevator would be operated to make sure that everything was working properly. The mechanic does not leave the location unless the elevator is running as designed. The subject elevator is an overhead traction machine with an operating speed of 350 fpm. Over-speeding occurs when the elevator operates at a certain percentage above the normal operating speed. The governor operates to stop the elevator in the event of an over-speed. Maintenance was performed on a monthly basis. Regarding the subject elevator, mechanic Tom Acerbo adjusted and cleaned a door lock on March 3, 2012. If the door does not close properly, the elevator will not leave the floor at which it is located. On March 5, 2012, an open door interlock was found at the 10th floor. Interlock is the same as door lock. On April 27, 2011, Mr. De Canio shutdown the subject elevator for a new operator board. This related to door function and had nothing to do with the governor or safety brake. On July 15, 2011, Mr. De Canio responded to a shutdown and replaced two relays located on the back of the elevator controller, which provide motion, but have nothing to do with car speed. On November 3, 2011, the subject elevator was stuck in the lobby. The drive was reset on November 3, 2011 and November 10, 2011. A malfunctioning drive would not cause an over-speed. On November 9, 2011, an adjustment was made to the DPP sensor, which gives the elevator its position to facilitate floor stops and leveling. A cart should not run if the DPP malfunctions. Also on November 9, 2011, the 4th floor door relating cable was repaired. On November 14, 2011, the elevator was stuck on the 2nd floor. The OUX contact was replaced, which allows the elevator to move. If the OUX contact malfunctions, the elevator cannot travel. On November 27, 2011, the elevator was traveling up and down the elevator shaft and not stopping at designated floors. On November 28, 2011, all the elevators were stuck on the 5th floor, and the 5th floor call board had to be replaced. On December 15, 2011, the 5th floor call board had to be reset again and a hall call issue also occurred on January 3, 2011. A deficiency was found on January 3, 2011, regarding the hoist cables. The deficiency was rectified on January 4, 2012. Routine maintenance was performed on February 29, 2012. No problems were found regarding the function of the subject elevator. On the date of the incident, plaintiff was stuck in the elevator, plaintiff was removed, and the elevator was shutdown.

Jose Cruz appeared for an examination before trial on June 4, 2015. He testified that he has been employed by Newmark Grubb Knight and Frank for eighteen years. He is the assistant engineer for the subject building. His responsibilities include taking care of any problems or repairs necessary in the building, excluding elevators. At approximately 5:30 p.m. on the date of the subject incident, building security contacted him on his walkie-talkie and advised that someone was stuck on elevator number one. He usually calls the elevator company immediately when there is a problem. He called Thyssenkrupp right away, advised that someone was stuck on the elevator, and that Thyssenkrupp needed to send a mechanic immediately. After contacting Thyssenkrupp, he went to the 10th floor and talked to plaintiff through the elevator doors. Thyssenkrupp arrived approximately twenty minutes after he called. The mechanic managed to open the elevator doors. The elevator floor was three to four feet below the building floor. At the mechanic's request, he retrieved and brought a ladder to the 10th floor. The ladder was placed into the elevator. The mechanic went into the elevator to assist plaintiff up the ladder. He was [*3]unaware of any prior incidents or complaints regarding the subject elevator.

Mark Domiczek appeared for an examination before trial on June 4, 2015. He testified that he is the superintendent/chief engineer of the subject building. He has worked for Newmark Grubb Knight and Frank for twenty years. His responsibilities include making sure the HVAC system is working properly and taking care of invoices. He also serves as the fire safety director for the building. His work does not include the elevators. Any elevator problems were referred to Thyssenkrupp. He did not work on the date of the subject incident. Mr. Cruz told him about the incident the following day. He was unaware of any prior similar incidents regarding the subject elevator.

Thyssenkrupp also submits the repair records produced by Thyssenkrupp and UOB's security log book to demonstrate that there were no prior complaints regarding the traveling speed or a sudden stopping of the subject elevator.

Patrick J. McPartland, P.E. submits an expert affidavit dated November 30, 2017. He identifies the records and documents reviewed prior to rendering his affidavit. He visited the subject building on May, 22, 2014. After a review of the records and upon his own inspection, Mr. McPartland concludes that none of the repairs were in response to an over-speed issue, related to the function of the governor, or would cause a sudden stop. Thus, Thyssenkrupp did not have actual or constructive notice of a defect related to an over-speed issue, the function of the governor, or any defect that would cause a sudden stop.

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]).

"An 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]; see Koch v Otis El. Co., 10 AD2d 464 [1st Dept. 1960]). An inference of negligent inspection and repair in the maintenance of an elevator may be drawn from evidence that the elevator doors previously malfunctioned (see Fanelli v Otis El. Co., 278 AD2d 362 [2000]; Liebman v Otis El. Co., 127 AD2d 745 [2d Dept. 1987]). To establish a prima facie entitlement to judgment as a matter of law, movant has the burden to demonstrate that it did not have actual or constructive notice of a condition that would cause the elevator to mislevel, and that it did not fail to use reasonable care to correct this condition of which it should have been aware (see Reed v Nouveau El. Indus., Inc., 123 AD3d 1102 [2d Dept. 2014]; Tucci v Starrett City, Inc., 97 AD3d 811 [2d Dept. 2012]; Hall v Barist El. Co., 25 AD3d 584 [2d Dept. 2006]; Carrasco v Millar El. Indus., 305 AD2d 353 [2d Dept. 2003]). The same burden is upon Samaritan (see Green v City of New York, 76 AD3d 508 [2d Dept. 2010]).

Based on the submitted evidence, including the testimony and expert affidavit stating that none of the prior repairs were related to an over-speed issue, Thyssenkrupp contends that plaintiff has failed to demonstrate any notice of any prior condition which resulted in the alleged incident. Additionally, Thyssenkrupp contends that plaintiff's own testimony that she informed security two days prior to the incident of a problem with the subject elevator is unsupported by [*4]the security log book and merely self-serving. Having failed to show notice, Thyssenkrupp argues that plaintiff is unable to make out her prima facie case of negligent maintenance (citing Issac v 1515 Macombs, LLC, 84 AD3d 457 [1st Dept. 2011]; Feblot v New York Times Co., 32 NY2d 486 [1973]; Farmer v Central Elev., 255 AD2d 289 [2d Dept. 1998]).

In opposition, plaintiff submits an expert affidavit from Patrick A. Carrajat dated January 21, 2018. He identifies the records and documents reviewed prior to rendering his affidavit. He notes that the subject elevator failed to pass routine inspections by the NYC Department of Buildings in 2007, 2008, 2009, and 2011. The subject elevator was also found unsatisfactory under the annual safety inspections in 2010, 2011, and on May 13, 2012, the first inspection after the subject incident. Mr. Carrajat states that the most probable cause of the incident was the clipping or malfunction of the 10th floor interlock. He further notes that a monthly minimum of one and a half hours to two hours of preventive maintenance is required to prevent operational problems. Here, however, aside from emergency repairs, there is no record of any preventative maintenance to the interlock system in the twelve months preceding the incident. Mr. Carrajat opines that a properly maintained elevator will not fail repeated inspections or stop abruptly absent negligence in its maintenance and repair. Mr. Carrajat concludes that the elevator's abrupt stop was a proximate cause of plaintiff's incident. Defendants' failure to maintain the elevator properly was a competent producing cause of the subject incident.

Based on Mr. Carrajat's opinion that the work tickets indicate a continuing or recurrent problem, that the number of shutdowns, trouble calls, and repeated failures to pass inspection reflect a lack of proper and preventative maintenance, that the ten trouble calls or shutdowns involving interlock issues and the service performed by Thyssenkrupp on the interlock only two days prior to the incident indicate that the interlock was the most probable cause of the incident, and based on plaintiff's own testimony regarding multiple instances of bouncing and shaking of the subject elevator in the months preceding the incident, plaintiff contends that Thyssenkrupp failed to demonstrate, prima facie, that the elevator was in good operating condition prior to the incident. Plaintiff also contends that there is a question of fact as to whether Thyssenkrupp failed to use reasonable care to discover the subject defect that caused the malfunction during the months prior to the incident. Lastly, plaintiff contends that Thyssenkrupp is liable to plaintiff under the doctrine of res ipsa loquitur, which is not even addressed in the motion papers.

UOB also opposes the motion contending that based on Mr. Carrajat's expert affidavit, questions of fact exist precluding an award of summary judgment. UOB also argues that Thyssenkrupp failed to address the cross-claims for contractual indemnification and breach of contract for failure to procure insurance.

Upon a review of the motion, oppositions, and reply thereto, this Court finds as follows:

Thyssenkrupp failed to establish a prima face case of entitlement to judgment as a matter of law. Here, plaintiff herself testified that two days prior to the incident, she personally observed the elevator shake and fall, coming to a hard landing at the lobby. Additionally, plaintiff experienced difficulties with the elevator at least three times per year, including uneven landing with the doors. As such, Thyssenkrupp failed to demonstrate that it lacked notice regarding the malfunctioning of the subject elevator. Although, Mr. McPartland and Mr. De Canio state that the prior service calls were not related to an issue involving over-speeding, such statements contradict Mr. Carrajat's statements, and at the very least, create an issue of fact as to whether [*5]Thyssenkrupp had constructive notice of the elevator malfunctioning and whether Thyssenkrupp failed to use reasonable care to discover and correct a condition which it ought to have found (see Miguel v 41-42 Owners Corp., 57 AD3d 488 [2d Dept. 2008]; Oxenfeldt v 22 N. Forest Ave. Corp., 30 AD3d 391 [2d Dept. 2006]).

Even if Thyssenkrupp did establish a prima facie case, the history of previous malfunctioning events coupled with Thyssenkrupp's undertaking to perform all inspection and maintenance is sufficient for the jury to infer negligence (see Burgess v Otis El. Co., 114 AD2d 784 [1st Dept. 1985], aff'd 69 NY2d 623 [1986]; Lackowitz v City of Yonkers, 29 AD3d 744 [2d Dept. 2006]; Lerner v Luna Park Hous. Corp., 19 AD3d 553 [2d Dept. 2005]). Moreover, Thyssenkrupp failed to conclusively establish that it took reasonable care in inspection and maintenance designed to prevent such problems. Based on the two expert affidavits, at the very least an issue of fact exists as to whether such inspection is good custom and practice (see Burgess v Otis El. Co., 114 AD2d 784 [1st Dept. 1985], aff'd 69 NY2d 623 [1986]). Moreover, any discrepancies in the expert affidavits are an issue of credibility which is for a jury to determine (see Francis v Basic Metal, 144 AD2d 634 [2d Dept. 1988]).

Plaintiff's claims are also based on the theory of res ipsa loquitur. Thyssenkrupp failed to address such in its motion papers. In any event, res ipsa loquitur is appropriate "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 control of the defendant; (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 [2d Dept. 1983]). The exclusivity requirement is met where a building owner relied on the elevator maintenance company's expertise to inspect and maintain the elevators in a reasonably safe operating condition pursuant to a service contract (see Burgess v Otis El. Co., 114 AD2d 784 [1st Dept. 1985]). Based on the testimony and expert affidavits, and the undisputed facts that the maintenance and service of the elevator was within the exclusive control of Thyssenkrupp and that plaintiff did not contribute to the happening of this accident, this Court finds that Thyssenkrupp did not present a basis to preclude the application of res ipsa loquitur as Thyssenkrupp never demonstrated that but for its own negligence the incident would not have happened (see Fiermonti v Otis El. Co., 94 AD3d 691 [2d Dept. 2012]; Fyall v Centennial El. Indus., Inc., 43 AD3d 1103 [2d Dept. 2007]).

Likewise, Thyssenkrupp failed to address UOB's cross-claims in its motion papers. Thus, such will not be addressed herein.

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that defendant THYSSENKRUPP ELEVATOR CORPORATION's motion for summary judgment is denied; and it is further

ORDERED, that this matter shall remain on the Trial Scheduling Part's Calendar for May 24, 2018.



Long Island City, NY

Dated: March 20, 2018

ROBERT J. MCDONALD

J.S.C.