Xholi v 150 E. 42 Holdings LLC

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Xholi v 150 E. 42 Holdings LLC 2020 NY Slip Op 31627(U) May 29, 2020 Supreme Court, Kings County Docket Number: 505866/17 Judge: Kathy J. King 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. [* 1] INDEX NO. 505866/2017 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/29/2020 ' At *1 !AS Term, Part 64 of the Sup~me Court of the State of New Yo~, held in and for the County of Kingjs, at the Courthouse, at Civic Cent~r, Brooklyn, New York, on the 29thlday of May, 2020. PRES ENT: HON. KATHY J. KING, Justice. -------------------------------------X Kujtime Xholi, DECISION/ORDER Plaintiff, Index No. 505866/l 7 - against150 East 42 Holdings LLC, 150 Ea't 42 Realty LLC, AM 150 East 42 Realty LLC, Jones Land Lasalle Americas, Inc. and Nouveau Elevators Industries Inc. Defendants. -------------------------------------X The following papers number 1 to 6 read herein: Papers Numbered Notice of Motion/Order to Sl1ow Cause/ Petition/Cross Motion and Affidavits (Affirmations) An11exed _ _ _ _ _ _ _ _ __ 1-2 3-4 Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ __ 5 6 Reply Affidavits (Affirmations)._ _ _ _ _ _ _ _ _ _ __ 7 8 Upon the foregoing papers, Defendant Nouveau Elevators industries, Inc. ("Nouveau") I moves for sununary judgment, dismissing plaintiffs complaint, ptVsuant to CPLR 3212. i Defendants 150 East 42 Holdings LLC, 150 East 42 Realty LLC, 4M 150 East42 Realty LLC i 1 and Jones Land Lasalle Americas, Inc. (collectively "'fl1e Building !Defendants"), cross move ! and seek summary judgment and dismissal of plaintiff's complaint~ pursuant to CPLR 3212, or, 1 of 4 [* 2] INDEX NO. 505866/2017 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/29/2020 ' in the alternative, move for indemnification agaiI1st co-defendant Nouveau. 1 Plaintiff, Kujtime Xholi, opposes both the motion and cross motion. II Plaintiff seeks to recover monetary damages for personalji11juries allegedly sustained 6n ! May 18, 2016 when she was struck by the doors of a service ele~ator in the process of closing at ' 150 East 4znd Street New York, New York ("the strbject premise$"). PlaiI1tiff is an office cleaner I at the subject premises. 'fhe Building Defendants are the ownerslofthe subject premises. At the time of the accident, defendant Not1veau was the provider of ele~tor maintenance services for . i the Building Defendants pur~uant to a contract between the parti~s. The elevator service contract i required the door open time to be 3 seconds, the door close time tp be 4 seconds and the car stop I dwell time to be 3 seconds. In support of its motion, defendant Nbuveau contends that prior to, I and on the day of the accident, tl1e subject elevator functioned in ~ccordance with the !, requirements of the elevator service contract. The Building Defen~ants argue that they had no notice of a defect regarding the elevator. i A party mo'vi11g for summary judgment bears the burden of making a prima facie showing I of entitle1nent to judg1nent as a matter of law and must tender sJfficient evidence in admissible I form to demonstrate the absence of any material factual issues (~ee CPLR 3212 [bJ; Alvarez v i Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 i [1980]). Once this showing has been made, the burden shifts to t~e party opposing the motion to ' produce evide11ce in admissible form sufficie11t to establish an is,ue of material fact requiring a ', trial (see CPLR 3212; Alvarez, 68 NY2d at 324; Zuckerman, 49 Nty2d at 562; Graffeo, 46 AD3d I at 615). "[O]ne opposing a motion for su1nmary judgment mus~ produce evidentiary proof in i admissible form sufficient to require a trial of material questions of fact on whicl1 l1e rests his claim 1 The· Building Defendants adopted defendant Nouveau's arguments and eviden e in support of their motion. 2 2 of 4 [* 3] INDEX NO. 505866/2017 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/29/2020 . . . inere conclusions, expressions of hope or unsubstantiatetl allegations or assertions are I insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 ![1980]). ! Here, in order to make a prima facie showing of summarY judgment as a matter of law, 1 the Building Defendants must show that the elevator was not defJctive and that they had no ' i notice of a detect. The case law has established that "[aJn elevatQr company which agrees to 1. maintain an elevator in safe operating condition can also be held ~iable to an injured passenger !. 'for failure to use reasonable care to discover and correct a condit~on which it ought to have ' found"' (Hussy v Hilton Worldwide, Inc, 164 AD3d 482, 483-48~ [2d Dept 2018] [internal i citations omitted]). Additionally, it is well settled that, ''a propert~ owner can be liable for an ' elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the detect, or where it fails to notify the ! ~levator company with wl1ich it ! 11as a maintenance and repair contract abou,t a known defect" (Go~dwin v Guardian Life ins Co ofAm, 156 AD3d 765, 766 [2d Dept 2017]). 1 1 In the case at bar, the Building Defendants submit proof in Iadmissible form i11cluding, 1. inter alia,_plaintiffs deposition testimo11y, affidavit of Property Mfnager Walter Maher, copies ' of the elevator service record, records of the City of New York Department of Buildings I ("DOB") inspections and a report from Jon Halpern, the engineerirjig expert of the moving i defendants, to show that the subject elevator was functioning proptrly in accordance with the elevator service contract at the time of the accident. i 1 Based on the admissible evidence, t11e Court finds that Nou\.reau and the Building 1 Defendants have made a prima facie showing as a matter of law th4t the elevator was not i defective and that there was no actual or constructive notice of anyjdefective condition whicl1 I could have caus_ed plaintiff's injuries (see Goodwin v Guardian Liff Ins Co ofAm, 156 AD3d 765, 766 [2d Dept 2017]. 3 3 of 4 [* 4] INDEX NO. 505866/2017 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 05/29/2020 ' While plaintiff's expert, Patrick A. Carrajat, in oppositio*, opined that the safety edge, an ! elevator part which holds the elevator doors open, may not have peen functioning properly, tl1e i, Court fi11ds that Mr. Carrajat's affidavit was conclusory and spetjulative, and, thus, insufficient to ! 1 raise a triable issue of fact. Contrary to the'opinion ofplaintiff's 1expert, the DOB inspection ' records indicate that ru1 inspection was performed the day following the accident which found I that the elevator was functioning properly. Notably, the DOB's tinding is consistent with the ', opinion of Jon Halpern, defendant's expert, whose report is annet_ed to the moving papers. i Finally, the affidavit of Property Manager, Walter Maher, establ~shes tl1at prior to the accident, i defendants had never received nor logged any complaints that thci doors of the elevator were not 1 ftmctioning properly. Accordingly, the Court finds that plaintiff failed to raise a triable issue of ! fact, as to whether tl1e elevator door was defective (see Goodwin ~56 AD3d at 766). i! Plaintiff also failed to raise a triable issue of fact as to whfther the accident was one that i would not ordinarily occur in the absence of negligence and, therGfore, plaintiff cannot rely on ! res ipsa loquitur (see Goodwin 156 AD3d at 767) to defeat the prika facie showing of Nouveau and the Building Defendants. I, Based on the foregoing, defendant Nouveau's motion for ~urnmary judgment dismissing ' plaintiffs complaint is granted (Mot. Seq.# 2), and the cross motiin of the Bl1ilding Defendants' i for summary judgment dismissing plaintiffs complaint is granted '(Mot. Seq.#3). This constitutes the decision/ord'er of the Court. ENTER, '-=W ...__,_'-e, HON. KATHtftNG J.S.C. 4 4 of 4

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