Crespo v YRL Assoc., L.P.

Annotate this Case

Download PDF

Crespo v YRL Assoc., L.P. 2019 NY Slip Op 34583(U) July 5, 2019 Supreme Court, Westchester County Docket Number: Index No. 57250/2017 Judge: Charles D. Wood 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: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 To commence commence the statutory statutory time lime period period for appeals appeals as of of right (CPLR are advised advised to to serve serve a copy copy as (CPLR 5513[a]), 5513(a]), you are oflhis notice of of entry, parties of this order, order, with notice entry, upon all parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY ------------------------------------------------------------------------)( ------------------------------------------------------------------------X JOSE DAVID DAVID CRESPO, CRESPO, JOSE DECISION & ORDER ORDER DECISION Plaintiff, Plaintiff, Index No.:57250/2017 Index No.:57250/2017 Sequence Nos. Nos. l& 1& 2 Sequence -against-againstASSOCIATES, L.P., L.P., OTIS OTIS ELEV ELEVATOR COMPANY, YRL ASSOCIATES, ATOR COMP ANY, YONKERS RACING RACING CORPORATION, CORPORATION, and YONKERS Defendants Defendants ------------------------------------------------------------------------)( ------------------------------------------------------------------------X WOOD,J. WOOD,J. New York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers Numbers 39-124 39-1241,1, New York connection with with the motion motion for summary summary judgment of defendants defendants YRL YRL Associates, Associates, were read in connection judgment of ("YRL"), and Yonkers Yonkers Racing Racing Corporation Corporation ("YRC"), ("YRC"), which which seeks seeks an order order dismissing dismissing L.P. ("YRL"), plaintiff s complaint complaint pursuant CPLR 3212, 3212, and to dismiss dismiss cross-claims cross-claims of of co-defendant co-defendant Otis plaintiffs pursuant to CPLR Elevator Company("Otis"); Company("Otis"); and the motion motion for summary summary judgment Otis, and to dismiss dismiss all Elevator judgment by Otis, claims as against against it (Seq (Seq 2). cross claims Plaintiff commenced commenced this action action to recover recover personal injuries as a result result of of an accident accident Plaintiff personal injuries allegedly caused caused by a door door strike strike in an elevator elevator on June June 7, 2015, 2015, at the Empire Empire City City Casino Casino allegedly located in Yonkers. Yonkers. located NOW based upon upon the foregoing, foregoing, the motions motions are decided decided as follows: follows: NOW based JAil references to documents documents will be cited cited by the NYSCEF Document Number. All references NYSCEF Document Number. 1 1 [* 1] 1 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 It is well well settled settled that that "a "a proponent proponent of of a summary summary judgment judgment motion motion must must make make a prima prima judgment as a matter sufficient evidence evidence to facie showing showing of of entitlement entitlement to judgment matter of of law, law, tendering tendering sufficient demonstrate demonstrate the absence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp. Hosp.,, 68 NY2d NY2d 320, 320, 324 [1986] [1986];; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686-687 686-687 [2d Dept AD3d 731 [2d Dept Dept 2007]; 2007]; see also Rea v Gallagher, Gallagher, 31 31 AD3d Dept 2007]). 2007]). Once Once the movant movant has threshold burden, burden, the opposing opposing party party must must present present the existence of triable triable issues issues of of fact met this threshold existence of (see Zuckerman New York, 557, 562 [1980] Nelson, 68 AD3d Zuckerman v New York, 49 NY2d NY2d 557, [1980];; see also Khan Khan v Nelson, AD3d 1062 Dept 200' 200::]). Conclusory, unsubstantiated unsubstantiated assertions assertions will not suffice defeat a motion motion for .?]). Conclusory, suffice to defeat [2d Dept summary judgment (Barclays AD2d 492 492 [2d Dept summary judgment (Barclays Bank Bank of of New New York, N.A. v Sokol, Sokol, 128 AD2d Dept 1987]). party opposing opposing a motion motion for summary summary judgment basis of of deposition deposition A party judgment may do so on the basis expert' s affidavit, testimony testimony as well well as other other admissible admissible forms of of evidence, evidence, including including an expert's affidavit, and eyewitness testimony testimony (Marconi (Marconi v Reilly, Reilly, 254 AD2d AD2d 463 [2d Dept Dept 1998]). 1998]). In deciding deciding a motion motion eyewitness summary judgment, court is required required to view view the evidence evidence presented presented "in "in the the light light most most for summary judgment, the court '-I favorable to the party party opposing opposing the motion motion and to draw every reasonable reasonable inference favorable draw every inference from the (Yelder pleadings and the proof proof submitted submitted by the parties parties in favor of of the opponent opponent to the motion" motion" (Yelder pleadings v Walters, Walters, 64 AD3d AD3d 762, 762, 767 [2d Dept Dept 2009]; 2009]; see Nicklas Nicklas v Tedlen Tedlen Realty Realty Corp., Corp., 305 AD2d AD2d 385,386 Dept 2003]). 2003]). The The court court must must accept accept as true the evidence evidence presented presented by the 385, 386 [2d Dept nonmoving party party and must must deny the motion motion if if there there is "even "even arguably doubt as to the arguably any doubt nonmoving existence of of a triable triable issue" issue" (Kolivas (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept 2005]); 2005]); Baker Baker v existence Briarcliff School School Dist., Dist., 205 AD2d AD2d 652,661-662 652,661-662 [2d Dept Dept 1994 1994]). Summary judgment drastic Briarcliff ]). Summary judgment is a drastic of a triable remedy and should remedy should not be granted granted where where there there is any doubt doubt as to existence existence of triable issue issue (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320, 324 [1986]). [1986]). (Alvarez NY2d 320, 2 [* 2] 2 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 Here, plaintiff plaintiff claims claims that that on June 2015, while while working working in the housekeeping housekeeping Here, June 7, 2015, department for YRC, YRC, plaintiff struck his head on the freight freight elevator elevator gate gate at the Empire Empire City department plaintiff struck Casino. Plaintiff Plaintiff refused refused medical medical attention attention and remained remained on duty. duty. Plaintiff Plaintiff had been been working working for Casino. about five years years in the housekeeping housekeeping department. department. The incident incident was captured captured by two YRC for about surveillance cameras. cameras. Plaintiff Plaintiff made made a claim claim for Worker's Worker's Compensation Compensation benefits. benefits. After After casino surveillance hearing on April 8, 2016, 2016, Workers Workers Compensation Compensation Law Judge, Judge, Gail Watson, Watson, awarded awarded plaintiff plaintiff a hearing certain benefits benefits relating relating to his claimed claimed head injury, injury, but found found that that plaintiffs plaintiffs other other claimed claimed certain injuries were not related related to the accident. accident. injuries According to plaintiff, doors to the elevator elevator would would remain remain open open so long long as someone someone According plaintiff, the doors passing through through the sensors, sensors, however, however, once one was no longer longer passing passing anything anything through, through, a was passing "whistle" would would go off off for approximately approximately two to five seconds seconds before before the doors doors would would begin "whistle" begin to ~ ~ close and would would continue continue until until the doors doors closed closed completely completely (Plaintiffs (Plaintiffs Tr. Doc Doc No. 47 at pgs 40close 41). Plaintiff Plaintiff testified testified that that he didn't didn't notice notice whether whether the gate to the elevator elevator started started to close close at any point prior-to his accident. accident. As he approached approached the freight freight elevator elevator "something" "something" hit his head head that that he point "supposed" was the gate (Doc (Doc No. No. 47 at pg 38). He did not state state whether whether the whistle whistle or buzzer buzzer "supposed" went off, but he did not hear hear it immediately immediately prior accident. went prior to his accident. Plaintiff testified testified that that he had made made prior prior complaints complaints regarding regarding the warning warning buzzer Plaintiff buzzer not sounding, specifically specifically two complaints complaints and both made in close close succession succession approximately approximately a sounding, both were made incident. After After he made made the second second complaint, complaint, he saw saw Otis Otis shut shut down down the elevator elevator year prior prior the incident. make repairs, repairs, after after which which he never never had a problem problem with with the warning warning buzzer buzzer not sounding sounding (Doc to make No. Plaintiff had used the freight freight elevator elevator to go from the basement basement to the first floor No. 47 at pg 50). Plaintiff 3 [* 3] 3 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 accident on the date of of the accident accident and recalled recalled the warning warning buzzer buzzer was was working working at before his accident that time (Doc No 47 at pg 132). Anthony Casino in or about Anthony Caragine Caragine testified testified that that he worked worked for Empire Empire Casino about August August 2012, 2012, as housekeeping supervisor. supervisor. He testified testified that although although the freight freight elevator elevator had signs signs posted posted stating stating a housekeeping passengers were were to ride in the freight freight elevator elevator and that that it was for freight freight only, only, the Casino Casino that no passengers required its employees employees to use the elevator elevator in the course course of of performing performing their their duties. duties. A warning warning required would sound sound for approximately approximately ten seconds seconds before before the doors doors to the freight freight elevator elevator started started to bell would continued until the doors doors are completely completely close. There electronic sensor sensor or "eye" "eye" close and continued There is an electronic which would would detect detect obstructions obstructions to the closing freight elevator elevator. . Once Once an obstruction which closing freight obstruction was detected, the gate would would stop coming down down and go back back up. After watching the video video clip of of the detected, stop coming After watching incident, he believes believes that that the elevator elevator gate came came to a compete compete stop stop before before plaintiffs plaintiffs head head comes comes incident, contact with with it, and that that it was the elevator elevator gate, gate, not the outer outer elevator elevator door, door, which which came came into into contact contact with plaintiffs plaintiffs head. head. As the garbage garbage can went went over over the threshold threshold of of the freight freight elevator, elevator, contact elevator gate re-opened, re-opened, or went went back back up (Doc the elevator (Doc No. 48, pg 167). According to Caragine, Caragine, Otis was responsible responsible for inspecting, inspecting, maintaining maintaining and repairing repairing the According elevators at the Casino. Casino. Cargine Cargine was not aware aware of of any complaints complaints or issues with the freight freight elevators issues with elevator, and was not aware aware of of any accidents accidents involving involving the freight freight elevator elevator prior prior to the subject subject elevator, accident. accident. Dominick Confreda Confreda testified testified that that he has been been employed employed as a mechanic mechanic with with Otis repairing Dominick Otis repairing maintaining elevators elevators for approximately approximately 15 15 years, years, and was assigned assigned to service and maintaining service the elevators elevators Casino since since 2010. 2010. He would would be alerted alerted through through an app; app; perform perform monthly monthly preventative preventative at the Casino maintenance; and fix any issues issues that that he observed observed while while he was performing performing maintenance maintenance and and maintenance; 4 [* 4] 4 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 repaIrs. Confreda Confreda reviewed reviewed the maintenance maintenance records records for the freight freight elevator elevator for a year prior repairs. prior to the of the accident, accident, and there there were were no prior prior issues issues with with the gate closing closing or the door door detectors detectors date of identified. The The only only service service call relating relating to the safety safety buzzer buzzer indicating indicating the door door closing closing was not identified. operating, was on January January 22, 22,2015, month prior prior to the accident. accident. At that that time time this this issue issue was operating, 2015, six month addressed. Routine Routine maintenance maintenance including including inspection inspection of of the freight freight elevator elevator occurred occurred each each month month addressed. with the buzzer, buzzer, door door detector, detector, or the gate closing closing were were noted noted or complained complained of. and no issues with inspection occurred occurred exactly exactly thirty thirty days prior prior to the date date of of the accident accident on May 7, 2015. The last inspection There service call back 11,, 2015, 2015, the issue issue was the gate gate switch switch was causing causing There was also a service back on May 11 doors to remain remain closed closed and caused caused the freight freight elevator elevator to become become intermittently intermittently the gate and doors (Confreda Tr. Doc Doc Nos. 81&82) stuck. (Confreda Nos. 81&82) Edwin Rodriguez Rodriguez testified testified that he has worked worked for Otis for over over 15 years years servicing servicing Edwin elevators, and has been been an elevator elevator mechanic mechanic for over over 26 years. As for the January January 22, 22,2015, elevators, 2015, repair, he confirmed confirmed that that it was was for the warning warning sound sound that that alerts alerts that that the gate is closing. closing. He did repair, not remember remember this repair, repair, but but he detailed detailed the procedure procedure he would would follow follow to address address the issue. He testify that if if the system system is working working properly, properly, the gate will stop stop and and re-open re-open when when the beam beam is did testify breached; if if it is not working working properly properly the gate will continue continue to close close without without stopping stopping or breached; reversing. (Rodriguez (Rodriguez Tr Doc No. 85). No. 85). reversing. support of of its motion, motion, YRC argues argues that that the claims against it are barred barred by the Section Section claims against In support exclusivitY provision provision of of the Workers Workers Compensation Compensation Law, Law, which which prohibits negligence action action 11 exclusivity prohibits a negligence by an employee employee agaisnt agaisnt his employer, employer, whetther whetther or not the employer employer caused caused the claimed claimed injury injury (DeSpigna v Lutheran Lutheran Med. Med. Ctr. Parking, Parking, 170AD2d 170AD2d 645 [2d Dept Dept 1991]). 1991]). (DeSpigna 5 [* 5] 5 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 YRL argue that possession that plaintiff plaintiff cannot cannot maintain maintain an action action against against it, as it is the out of of possession owner/lessor of of the land. YRL did not own, occupy occupy or lease lease the improvements improvements (like (like the freight freight owner/lessor elevator) plaintiff walked elevator) when when plaintiff walked into the elevator. elevator. YRL had no obligation obligation to inspect, inspect, maintain maintain repair replace anything repair or replace anything on the property property including including any improvements improvements like the freight freight elevator elevator within the casino casino building. building. YRC YRC not YRL actually actually owned owned the freight freight elevator. elevator. Under Under the ground ground within solely YRC YRC which which undertook responsibility to inspect, inspect, maintain, maintain, repair repair and replace replace lease it was solely undertook responsibility the improvements, improvements, including including the freight freight elevator. elevator. YRL had literally literally no control control over over the freight freight elevator. elevator. In oppositon, oppositon, plaintiff plaintiff argues argues that that YRL and YRC YRC are liable liable to plaitniff plaitniff for their their failure failure to I maintain property in safe conditon maintain the property conditon and under under the doctrine doctrine ofres of res ipsa ipsa loquitor. loquitor. YRC YRC owned owned building and improvements improvements including including the freight elevator, elevator, and YRL YRL was the owner owner of of the the building land which which was leased leased to YRC. YRC. Plaintiff further further argues argues that that there there are triable triable issues issues as to whether whether YRC YRC was was actually actually Plaintiff plaintiffs employer on the date of of the accident accident as the Worker Worker Compensation Compensation Notice of Decision Decision plaintiff's employer Notice of dated April 8, 8,2016, and the Memorandum Memorandum of of Board Board Panel Panel Decision Decision issued issued on September September 4, dated 2016, and both named named Brian Brian Boru Boru of of Westchester Westchester Inc, as plaintiffs employer. The The carrier carrier and the 2016, both plaintiffs employer. policy holder holder had ample ample opportunity opportunity to correct correct these these purported errors at both hearing, the first policy purported errors both hearing, before Judge Judge Watson Watson and and the second Board, but failed to do so. In reply, reply, YRC YRC before second before before the Board, but failed submits the W-2 Wage Wage and Tax Tax Statement Statement for 2015, 2015, which which lists plaintiffs employer as "Yonkers "Yonkers submits plaintiffs employer Racing Corporation, Corporation, 810 Yonkers Yonkers Avenue. Avenue. (Doc No 117). In addition, addition, YRC' YRC'ss attorney attorney explains explains Racing Brian Boru Boru was the food and beverage beverage vendor vendor at Empire Empire City City Casino Casino and and a separate separate legal that Brian Plaintiffhimselftesfied worked for YRC, YRC, as did plaintiffs supervisor. entity. Plaintiff himselftesfied that he worked plaintiffs supervisor. 6 [* 6] 6 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 Additionally, Additionally, Plaintiffs Plaintiffs W-2 forms, forms, paychecks paychecks and personnel personnel file all confirm confirm that that he was employed employed by YRC. A person person may be deemed deemed to have more more than than one employer employer for purposes purposes of of the Workers' Workers' Compensation special employer; Compensation Law, Law, a general general employer employer and a special employer; such such determination determination is generally generally a question being "as question of of fact, with with a special special employee employee being "as one who is transferred transferred for a limited limited time time of of whatever whatever duration duration to the service service of of another" another" (Schramm (Schramm v Cold Cold Spring Spring Harbor Harbor Lab., Lab., 17 AD3d AD3d 661 , 662 [2d Dept 661,662 Dept 2005]). 2005]). Principal Principal factors factors include: include: "who "who has the right right to control control the employee's employee's work, work, who is responsible responsible for the payment payment of of wages wages and the furnishing furnishing of of equipment, equipment, who has the right right to discharge discharge the employee, employee, and whether whether the work work being being performed performed was was in furtherance furtherance of of the special employer's employer's or the general general employer's employer's business. business. The most most significant significant factor factor is who controls controls special directs the manner, manner, details, details, and ultimate ultimate result result of of the employee's employee's work" work" (Schramm (Schramm v Cold Cold and directs Spring Spring Harbor Harbor Lab., 17 AD3d AD3d at 662. From this record, record, genuine genuine issue issue of of material material fact as to whether whether plaintiff was an employee employee From plaintiff was of YRL. The court court cannot cannot ignore ignore that the Workers Workers Compensation Compensation Board Board viewed viewed another another entity entity of beside plaintiff s employee, employee, and it appears appears no party party challenged challenged such assertion. On the such assertion. beside YRL, as plaintiffs of Judge Judge Gail Watson's Watson's Notice of Decision, Decision, and in the Memorandum Memorandum of of Decision Decision ,the face of Notice of Employer is clearly clearly marked marked as "Brian "Brian Boru Boru of of Westchester Westchester Inc. (WCB (WCB Notice of Decision Decision Doc Doc Notice of Employer 41&42). Nos. 41&42). addition, YRC YRC's' s argument argument that it is clear clear from YRC YRC's' s contract contract with with Otis Otis that that YRC In addition, upon and contracted contracted with with Otis to inspect, inspect, maintain maintain and repair repair the elevators elevators at Empire Empire City relied upon Casino, which which might might be true. However, However, in this court's court's view, there are also questions questions of of fact as to Casino, view, there 7 [* 7] 7 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 delegation of of duties duties and YRC's YRC's duty to maintain maintain its elevators, elevators, certainly certainly having having a duty to the delegation of problems. problems. notify Otis of Turning next next to YRL role in plaintiffs plaintiffs accident, accident, YRL argues argues that that it was merely merely an out out of of Turning possession owner owner of of the raw land. The The evidence evidence produced YRL was true true and and accurate accurate copies copies possession produced by YRL of legal documents documents on file with with the Westchester Westchester County County Clerk, Clerk, Division Division of of Land Land Records, Records, of including deeds deeds and leases leases and business records introduced introduced through through the sworn sworn affidavit affidavit including business records (testimony) of ofaa custodian custodian with with personal personal knowledge, knowledge, YRC's YRC's Chief Chief Financial Financial Officer Officer Joel Daum. Daum. (testimony) contend that that YRL was the out of of possession owner/lessor of of the Raw Raw land and YRC and YRL contend possession owner/lessor lessee with with sole sole ownership ownership of of the improvements improvements including including the freight freight elevator elevator YRC was the lessee pursuant terms of of the ground ground Lease. pursuant to the terms record shows shows that that the Lease dated dated June June 15, 1972, originally originally was was between between YRL Land Land The record Corporation as Lessor, Lessor, and YRC, YRC, as lessor, lessor, through through assignments assignments becoming YRL, and Corporation becoming between between YRL, YRC, (see Lease, Lease, Doc Doc No. 67). In Article Article 6 of of the Ground Ground Lease, Lease, Section Section 6.02 provides YRC, provides that "Lessor shall not be required required to furnish furnish any services facilities or to make make any repairs repairs or "Lessor services or facilities alterations to the Land Land or the Improvements, Improvements, and Lessee Lessee hereby hereby assumes assumes the full and sole sole alterations responsibility for the condition, condition, operation, operation, repair, replacement replacement, , maintenance maintenance and management management of of responsibility Improvements and the land. " (Doc No. The Lease Lease does does provide provide that that Lessor Lessor is the Improvements No. 67 at pg 10). The authorized to enter enter the Land Land or the improvements improvements at all reasonable reasonable times times during during usual usual business authorized business of inspecting inspecting same. hours for the purpose purpose of of the foregoing, foregoing, YRL established established its entitlement entitlement to judgment matter oflaw of law In light of judgment as a matter by demonstrating demonstrating that that it was an out-of-possession out-of-possession landlord landlord which which had had no duty duty to maintain maintain or repair the elevator elevator (Valenti (Valenti v 400 Carlis CadIs Path Path Realty Realty Corp., Corp., 52 AD3d AD3d 696 [2d Dept Dept 2008]). 2008]). repair 8 [* 8] 8 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 out-of-possession landlord's landlord's duty to repair repair a dangerous dangerous condition condition on leased leased premises premises An out-of-possession "is imposed imposed by statute statute or regulation, regulation, by contract, contract, or by a course course of of conduct" conduct" (Lee v Second Second Ave. Ave. ViII. Partners, Partners, LLC, 100 AD3d AD3d 601 601,, 602 [2d Dept Dept 2012]). 2012]). An out-of-possession out-of-possession landlord landlord is Vill. generally not responsible responsible for injuries injuries that that occur occur on its premises premises "unless "unless it has retained retained control control generally over over the premises premises or is contractually contractually obligated obligated to maintain maintain or repair repair the alleged alleged hazard" hazard" (Deerr'Matos (Deerr'Matos v Ulysses Ulysses Upp, Upp, LLC, LLc' 52 AD3d AD3d 645 [2d Dept Dept 2008]). 2008]). Under the circumstances, circumstances, YRL establishes, establishes, prima prima facie, facie, that that it was an out-of-possession out-of-possession Under landlord which which is the owner owner of of the raw land, and not the Improvement, Improvement, it had had no obligation obligation to landlord inspect, manage, manage, maintain, maintain, repair repair or replace replace the freight freight elevator. elevator. In opposition, opposition, plaintiff inspect, plaintiff failed to triable issue issue of of fact, by merely merely accusing accusing YRL of of not meeting meeting its burden. raise a triable burden. Turning next next to Otis' Otis' motion motion for summary summary judgment, Otis asserts asserts that that the freight freight elevator elevator Turning judgment, Otis malfunction and therefore therefore there there was no unreasonably dangerous or defective defective condition. condition. did not malfunction unreasonably dangerous believes on the basis of the testimony testimony of of the experienced experienced Otis Otis mechanics mechanics and the video, video, Otis believes basis of establishes that the elevator elevator was operating operating properly time of of the accident. accident. establishes properly at the time argues that that it was not negligent negligent and had neither neither actual actual nor constructive notice notice of of Otis also argues nor constructive allegedly defective defective condition. condition. There evidence that Otis had notice notice of of any prior prior problem any allegedly There is no evidence problem complaint involving involving either either the door door detectors, detectors, the gate itself, itself, or the warning warning sound/buzzer. sound/buzzer. or complaint performed periodic routine preventable maintenance on a regular regular basis. Confreda Otis performed periodic routine preventable maintenance basis. Mr. Confreda recalled performing routine routine maintenance each month month for a full year year prior prior to the alleged alleged accident, accident, recalled performing maintenance each with the exception exception that that one or two within within the maintenance maintenance records records were were proffered proffered by other other with mechanics. This This maintenance maintenance included included inspecting inspecting the door door detectors, detectors, checking checking the audible audible buzzer buzzer mechanics. opening and closing closing of of the gate to ensure ensure each was in proper proper working working order. order. Otis and the opening 9 [* 9] 9 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 maintains the following: following: To the extent extent that plaintiff claims claims that that the buzzer buzzer was not working, working, Otis maintains that plaintiff maintains that that the detectors detectors were were working. working. Additionally, Additionally, if ifthere was no buzzer, buzzer, it does does not maintains there was explain why plaintiff plaintiff did not see the door door closing closing for two seconds seconds before before running running his head into a explain retracting door. Otis argues argues that that plaintiff plaintiff cannot cannot establish establish that that there there was was any issue issue with with the retracting warning buzzer, buzzer, as he could could not recall if if the buzzer buzzer warning warning that that the doors doors were were going going to close close warning was working working but but believed believed he did not hear it. The video video demonstrates demonstrates that that the door door began began to close close second prior prior to plaintiff plaintiff attempting attempting to enter enter the elevator elevator and before before plaintiff plaintiff began began looking looking a full second When plaintiff plaintiff and/or and/or his garbage garbage can crossed crossed the threshold threshold of of the elevator elevator and thereby, thereby, down. When interrupted the beams beams of of the Lambda Lambda detector detector device, device, the gate stopped stopped descending descending and and began began reinterrupted opening within within less than than a second, second, or immediately. immediately. Thereafter, Thereafter, plaintiff plaintiff who was now now looking looking opening down and moving moving swiftly swiftly into the elevator elevator without without pausing pausing despite despite the obvious obvious gate gate closing closing ran down bottom of of the ascending ascending gate. gate. his head into the bottom court viewed viewed the video. video. The freight freight elevator elevator door door was was open open as plaintiff plaintiff was wheeling wheeling The court garbage bin in front front of of him him toward toward the elevator. elevator. As he approached approached the freight freight elevator, elevator, he was the garbage looking down down at the floor, floor, and at the wheels wheels of trash can. As plaintiff plaintiff neared neared the elevator elevator of the trash looking threshold, the elevator elevator door door quicky quicky descended, descended, which which the court court interpreted interpreted as leaving leaving him 2 threshold, options-stop abruptly and not to enter, enter, or quickly quickly duck duck and enter enter the the elevator. elevator. Plaintiff's Plaintiffs split optionsstop abruptly split second decision decision was not unlike unlike accelerating accelerating through through a yellow yellow traffic traffic light, light, and the door door was second descending simultaneously simultaneously as he walked walked into it, striking striking him in the head. head. However, However, it is also descending plausible that that a finder finder of of fact might might not believe believe that that plaintiff plaintiff had any opportunity opportunity to duck duck or stop plausible court saw it. It is unclear unclear whether whether Plaintiff Plaintiff maintains maintains that that the the audible audible alarm alarm (buzzer) (buzzer) as the court if plaintiff plaintiff had no warning warning that the gate was about to close. close. failed to go off, or if was about 10 [* 10] 10 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 Plaintiff argues argues that that Otis Otis summary summary judgment must be denied denied because because Otis Otis failed failed to Plaintiff judgment must maintain maintain records records and because because the witnesses witnesses it provided provided had no personal personal knowledge knowledge regarding regarding inspection, inspection, maintenance maintenance and repair repair of of freight freight elevator. elevator. Plaintiffs Plaintiffs expert expert elevator elevator consultant, consultant, Patrick Patrick A. Carrajat, Carrajat, reviewed reviewed the parties' parties' deposition deposition The expert testimony, pleadings, video testimony, photographs, photographs, pleadings, video of of the accident. accident. The expert described described the freight freight elevator as manufactured manufactured by Otis; Otis; with with a geared overhead traction traction elevator elevator fitted fitted with with vertically vertically elevator geared overhead bi-parting door door at each each landing landing and a metal metal mesh mesh gate which which rides rides with with the elevator. elevator. The The gate bi-parting operate sequentially sequentially with with the gate closing closing first followed followed by the bi-parting bi-parting doors. doors. and doors operate (Affidavit of of Patrick Patrick Carrajat, Carrajat, Doc No. No. 108 108).). (Affidavit Plaintiffs expert expert concluded concluded that the failure of of the detector detector edge edge was rooted rooted in the failure failure Plaintiff's of Otis to properly properly clean, clean, adjust, adjust, examine examine and test the function function of of the detector; detector; Otis failed failed to of perform any testing testing of of the gate closing closing speed speed and functionality functionality of of the soft soft edge edge on the bottom bottom of of perform the gate contributed plaintiffss head; contributed to the severity severity of of the impact impact on plaintiff head; the buzzer buzzer did not function function provide plaintiff plaintiff with with a warning was about about to close close (Doc (Doc No. and failed to provide warning that the gate was No. 108). "To invoke invoke the doctrine doctrine ofres of res ipsa ipsa loquitur, loquitur, the event event (1) must must be of ofaa kind kind which which ordinarily does not occur occur in the absence absence of of someone's someone's negligence; negligence; (2) must must be caused caused by an ordinarily agency or instrumentality instrumentality within within the exclusive exclusive control control of of the defendant; defendant; and (3) must must not have agency been plaintiff (Gaspard been due to any voluntary voluntary action action or contribution contribution on the part of of the plaintiff (Gaspard v Barkly Barkly Coverage Corp., Corp., 65 AD3d AD3d 1188, 1188, 1189 [2d Dept Dept 2009]). 2009]). Coverage Applying these these principals, principals, Otis established established its prima prima facie entitlement entitlement to judgment Applying judgment as a matter matter of of law by demonstrating demonstrating that it did not create create or have have actual actual or constructive constructive notice notice of of a defective condition condition in the elevator elevator that that would would cause cause the gate to drop drop However, However, in opposition, opposition, defective 11 11 [* 11] 11 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 INDEX NO. 57250/2017 RECEIVED NYSCEF: 07/09/2019 plaintiff raised raised a triable triable issue issue of of fact in connection connection with with the applicability applicability of of the the doctrine of res plaintiff doctrine of loquitur. Proof Proof that that the sudden sudden closing closing of of the elevator door or gate was was an occurrence occurrence that that ipsa loquitur. elevator door would not ordinarily ordinarily occur occur in the absence absence of of negligence, negligence, that that the maintenance maintenance and would and service service of of the elevator elevator was within within the exclusive exclusive control control of of Otis, and that that no act or negligence negligence on the injured injured plaintiffs part contributed contributed to the happening happening of accident, is a basis basis for liability liability under under the of the accident, plaintiffs doctrine ofres of res ipsa ipsa loquitur loquitur (Fiermonti (Fiermonti v Otis Elevator Elevator Co., 94 AD3d AD3d 691,692 691, 692 [2d Dept Dept 2012) doctrine 2012) This record is replete replete with with evidence triable issue issue of of fact as to whether whether Otis Otis had This record evidence to raise a triable notice of of the defect defect that that caused caused plaintiffs plaintiffs accident. accident. notice conclusion, Otis Otis established established its prima prima facie entitlement entitlement to judgment matter of of law, In conclusion, judgment as a matter plaintiff raised raised triable triable issue issue of of fact as to the liability liability of of company under the doctrine doctrine of of res ipsa ipsa but plaintiff company under loquitur. matters not specifically addressed are herewith herewith denied. denied. All matters specifically addressed This constitutes constitutes the Decision Decision and Order Order of of the Court. Court. This Accordingly, it is hereby hereby Accordingly, ORDERED, that that motion motion Seq 1 is granted granted to the extent extent that that summary summary judgment granted ORDERED, judgment is granted to YRL, thus, the complaint, complaint, and all cross-claims cross-claims are dismissed dismissed as against against YRL, YRL, but but denied denied otherwise; and it is further further otherwise; ORDERED, that that the summary summary judgment Motion Seq 2 by Otis Otis is denied; denied; and further ORDERED, judgment Motion and it is further ORDERED, that that the remaining remaining parties parties are directed directed to appear appear in the Settlement Settlement ORDERED, °"-5 ,JS+ Conference Part Part on On.s tJS+ ;JO, ~O, 2019 2019 at 9:15 9: 15 A.M., A.M., in CourtRoom CourtRoom 1600 of of the Westchester Westchester Conference County Courthouse, Courthouse, 111 III Dr. Martin Martin Luther Luther King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. New York County 12 [* 12] 12 of 13 FILED: WESTCHESTER COUNTY CLERK 07/09/2019 02:52 PM NYSCEF DOC. NO. 127 Dated: Dated: RECEIVED NYSCEF: 07/09/2019 July 5 5, , 2019 2019 July White Plains, Plains, New York York White HON. CHARLES D. Justice of the Supre To: To: Parties by NYSCEF All Parties NYSCEF 13 [* 13] INDEX NO. 57250/2017 13 of 13

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.