Dragaj v Central El. Inc.

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Dragaj v Central El. Inc. 2019 NY Slip Op 34973(U) January 22, 2019 Supreme Court, Bronx County Docket Number: Index No. 0028798/2017E Judge: Alison Y. Tuitt 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. INDEX NO. 28798/2017E FILED: BRONX COUNTY CLERK 01/31/2019 10:38 AM NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/31/2019 EW YORK SUPREME COURT----------COU TY OF BRONX IA-5 INDEX UMB ER : 28798/2017E Plaintiff, -aga inst- Present: HO . ALISO CENTRAL ELEV ATOR INC., THYSSSENKRUPP ELEVATOR CORPORATION, McGLYN HAYES & CO., INC., RICHMOND ELEV ATOR COMP ANY, I C. and CHINDLER ELEVATOR CORP., Y. TUITT Justice Defend ants. The fo ll owing papers num bered 1-3, Read on th is Defendant Ri chmond Elevator Com pany Inc.' s Motion fo r Summary Ju lgment On Ca lendar of 9/24/18 otice of Mo tio n-Ex hibi ts and Affirm ati o n- -- - - - -~ - -- - -- - - - - - Affi rmation in Oppositi on_ __ _ _ __ _ _ __ __ ~2~ - - - - - - - - - -- Reply Affi rm ation _ _ _ _ _ _ _ _ __ _ _ _ _ __ -=3_ __ _ _ __ _ _ __ _ _ Upo n the foregoi ng papers, defend ant Ri chmond Elevator Compan y, Inc.'s ("Rjchmon d") motion fo r summa1y judgment is grant d fo r the rea ons set fo rth herein. T he withj n action ari ses from an acci dent on Septem ber 18, 201 4 w hen the elevator doors at orth Central Bronx Hospital, whe re she wo rked, closed on her hitting both of her shoulders and all egedly causing inj uri es . Ri chmond had a contract with plaintiffs empl oyer the ew York C ity Health and Hos pital Corporation (' NYCHHC ') to service ome of th hospi ta l' s elevators. Johnson Co ntrol s Inc., the hospital' s property ma nager terminated the co ntract on May 15 , 201 3 16 months before pl aintiff s accident. Richm ond submi ts a letter dated April 17, 20 13 from Steve Duffy of Johnson Contro ls Sourcing Manager to Ri chmond wherein showing that it terminated the contract within 30 days of the letter. Richmond last perfo rm ed service [* 1] 2 of 4 INDEX NO. 28798/2017E FILED: BRONX COUNTY CLERK 01/31/2019 10:38 AM NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/31/2019 work on the elevators in the hospital in May 2013. Thereafter, YCHHC used Shindl er E levator Corp. to s rvice the elevators. Richmond now move for summary judgment dismissing plaintiffs complaint and the cross-cla ims against it on the grou nds that it contract with the ho pita! terminated 16 months before plaintiff's accident. Plaintiff opposes arguing tha t the motion shou ld be deni ed because discovery is outstanding as Richmond has not yet produced a witness for a deposition. Plaintiff argues that w ithout discovery there is no opportuni t to determine if Richmond was negligent. The cou1i's function on th is motion fo r summary judgment is issue finding rath r than issue determination. illman v. Twentieth Century Fox Fi lm Corp ., 3 .Y.2d 395 ( 1957). Since summary judgment is a drastic remedy, it should not be granted whe re there is any doubt as to the ex istence of a triable issue. Ro tuba E xtruders v. Cep pos, 46 . Y.2d 223 (1978). The movant must come forward w ith evidentiary proof in adm issib le form sufficient to direct judgment in its favor as a matter of law. Zuckerman v. C itv of 49 ew Yo rk, . Y.2d 557, 562 (1980). T hus, whe n the existence of an issue of fact is even arguable or debatable, summary judgment hould be denied. Stone v. Goodso n, 8 .Y.2d 8, ( 1960); illman v. Twentieth Century Fox Film Corp., supra. The proponent of a motion for summ ary judgment carri e the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Prospect Hosp ital 68 .Y.2d 320 (1986) . Thus the moving party must tender suffic ient evidence to demonstrate as a matter of law the absence of a mat ria l issue of fact. Once that ini tial burden has been atisfied, the 'burden of product ion" (not th e burden of persuasion) shift to the opponent, who must now go forward and produce sufficient evidence in admissible form to estab lish the existence of a triabl issue of fact. The burden of persuasion, howe er a lways remain where it began, i.e. w ith the proponent of the issue. Thus, if evidence is qually balanced the movant ha fa il ed tom et its bu rd n. 300 a t 34th Street Co. v . Habeeb, 683 .Y.S.2d 175 (l5' Dept. 1997). Defendant Richmond ' s motion must be granted. " An e levator company which agrees to maintain an elevator in a safe condition may be liable to a passenger for fai lure to correct condi tions of whic h it has knowledge or failure to use reasonab le care to discover and correct a condition which it ought to have fo und . ' Rog rs v. Dorchester Associates 32 .Y.2d 553 ( 1973). Howe er, Richmond ' s contract with YCHHC was terminated 16 months before plaintiffs accident and, therefore, Ri chmond no longer had a duty to anyone, inc lud ing plainti ff at the hospital. See, Remekie v 740 Corp., 861 N.Y.S.2d 6 18 (1st Dept. 2008)(In the absence of a contract for routine or syst matic mai ntenance, an independe nt repair co ntractor has no du ty to inspect or warn of any pu rported defects); Daniel v. Kromo Lenox A ociates, 791 N. Y.S.2d 17(1 st Dept. 2005). 2 [* 2] 3 of 4 INDEX NO. 28798/2017E FILED: BRONX COUNTY CLERK 01/31/2019 10:38 AM NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 01/31/2019 • Moreover, plaintiffs opposition is without merit. Defendant met its burden on this motion for summary judgment and plaintiff has failed to raise an issue of fact precluding dismissal of the action. A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant information. Bailey v. New York City Transit Authority, 704 .Y.S .2d 582 (1st Dept 2000). f or the court to delay action on the motion, there must be a likelihood of discovery leading to evidence that wi ll justify opposition to the motion. Jeffries v. New York City Housing Authority, 780 .Y.S .2d 1 (1 st Dept. 2004). The mere hope that discovery will lead to evidence sufficient to defeat the motion is insufficient.~ Here, it is clear that the contract was terminated 16 months before plaintiffs accident. Thus, defendant Richmond owed plaintiff no duty of care. Accordingly, defendant Richmond 's motion for summary judgment dismissing plaintiffs complaint and the cross-claims against it is granted. This constitutes the decision and Order of this Court. Dated: / / d d- / {q Hon. Alison Y. Tuitt 3 [* 3] 4 of 4

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