Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered December 24, 2008, which denied plaintiffs' motion for summary judgment on the issue of liability, reversed, on the law, without costs, the motion granted, and the matter remanded for further proceedings.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Nardelli, McGuire, Acosta, DeGrasse, JJ.
Plaintiffs live in a building owned by defendant 3320 Holding LLC and managed by defendant National Management (the building defendants). The building has one elevator. To enter the elevator cab, a person must pass through two doors: the elevator door on the floor on which the person is located and the door to the cab itself. The door to the cab opens automatically when the cab is stopped at a particular floor and, once the cab is stopped, the elevator door on that floor will unlock and a person can open it if she wishes to get in the cab. A safety device, an interlock, locks the elevator door on each floor when the cab is not stopped at that floor, preventing a person from opening the elevator door. Thus, the purpose of the interlock is to prevent people from falling down the elevator shaft.
On July 16, 2007, plaintiff Leo Schechter sustained personal injuries when he fell down the elevator shaft from the lobby floor to the basement. Mr. Schechter, erroneously believing that the cab was stopped on the lobby floor, pulled the door to the elevator, stepped forward and fell down the shaft.
Mr. Schechter and his wife commenced this action against the building defendants and Imperial Elevator Corp. (Imperial Elevator), the company that serviced the elevator, asserting causes of action for common law negligence and negligence based on res ipsa loquitur. The theory of plaintiffs' lawsuit is that the interlock failed to work, allowing Mr. Schechter to open the elevator door even though the cab was not at the lobby. Supreme Court denied plaintiffs' motion for summary judgment on the issue of liability, and this appeal ensued.
Plaintiffs asserted before Supreme Court that both the building defendants and Imperial Elevator had a duty to maintain the elevator, particularly the interlock. Neither the building defendants nor Imperial Elevator challenged that assertion before Supreme Court. Similarly, on appeal, the same assertion by plaintiffs is not disputed by Imperial Elevator, the only defendant to file a brief. Nor is there any dispute as to the issue of notice. Plaintiffs submitted evidence that both the building defendants and Imperial Elevator had notice that the interlock was not working properly and that the door to the elevator in the lobby would open when the cab was not at that floor. Neither the building defendants nor Imperial Elevator argued before Supreme Court that an issue of fact existed with respect to notice; Imperial Elevator does not assert in its brief that such an issue of fact exists. Thus, the disposition of this appeal turns on whether a triable issue of fact exists with respect to whether defendants breached the duty of care they each owed to Mr. Schechter, whether a triable issue of fact exists with respect to Mr. Schechter's comparative negligence, or both.*fn1
Plaintiffs made a prima facie showing that the building defendants and Imperial Elevator were negligent in failing to maintain the interlock and that their negligence caused Mr. Schechter's accident. In addition to submitting the deposition testimony of Mr. Schechter, which demonstrated that the accident happened as described above, plaintiffs tendered the affidavit of an expert who averred that (1) when properly maintained, an interlock prevents an elevator door from opening when the cab is not stopped on that floor, (2) the interlock on the elevator door in the lobby failed to work properly at the time of Mr. Schechter's accident because it had not been maintained properly, (3) Mr. Schechter was able to open the elevator door because the interlock did not work properly, (4) defendants' failure to ensure that the elevator door had a working interlock was a violation of Administrative Code of the City of New York § 27-994, and (5) the interlock did not fail due to fluids penetrating it because, if fluids had penetrated the interlock, an electrical short circuit would have occurred causing the elevator to shut down -- fluids penetrating the interlock "would not affect the opening of the door without the elevator being present." That plaintiffs met their initial burden on their motion of establishing a prima facie showing of entitlement to judgment as a matter of law is not in dispute; neither the building defendants nor Imperial Elevator argued before Supreme Court that plaintiffs failed to carry their initial burden, and Imperial Elevator does not assert in its brief that plaintiffs failed to do so.
Imperial Elevator does assert that the deposition testimony of its employee, Santiago, was sufficient to raise a triable issue of fact regarding its negligence. Imperial Elevator argues that Santiago's testimony raises a triable issue of fact as to whether the interlock failed because Imperial Elevator failed to maintain the elevator in a reasonably safe condition or whether the interlock failed because fluids penetrated it and caused it to "freeze," i.e., prevented the pin in the lock from moving into position to lock the door. Santiago testified that the interlock failed to work properly because it was damaged by fluids that entered the interlock, not because of improper or negligent maintenance. The fluid that Santiago identified as the principal cause of the damage was urine, which both he and the building superintendent testified sometimes was present in the cab and elevator shaft because individuals in the building relieved themselves in the elevator. Santiago testified as well that mop water residue also penetrated the interlock and damaged it.
The merit of Imperial Elevator's position depends on whether Santiago is qualified to render an expert opinion on the cause of the failure of the interlock. Santiago testified that he was employed by Imperial Elevator as a "maintenance man" for 12 years and that his duties in that position were to "check for oil, check [and clean] the [inter]locks," "clean the motor room, clean the top of the ca[b], [and] clean the pit [beneath the elevator]." Although he had worked approximately 20 years for various elevator maintenance and repair companies, Santiago had no formal training in inspecting, maintaining or repairing elevators. Additionally, Santiago was not a certified elevator mechanic and had no certifications or licenses of any kind with respect to elevator maintenance or repair. Santiago testified that he received all of his training concerning elevator maintenance and repair from a co-worker at a prior employer; Santiago did not know whether that co-worker possessed any licenses related to elevator maintenance and repair, and he did not elaborate on what that training consisted of.
For a witness to be qualified as an expert, the witness must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable (Matott v Ward, 48 NY2d 455, 459 ). Here, Santiago had no formal training or education, and does not possess any certification or license, with respect to elevator maintenance or repair. He was not, however, precluded from being qualified as an expert for lack of formal training and education; he could have been qualified if through "long observation and actual experience" (Price v New York City Hous. Auth., 92 NY2d 553, 559  [internal quotation marks and brackets omitted]) he possessed sufficient skill, knowledge and experience in elevator maintenance and repair to support an assumption that his opinion regarding the cause of the interlock's failure was reliable. But Imperial Elevator failed to submit evidence demonstrating that Santiago possessed such skill, knowledge and experience (see Rosen v Tanning Loft, 16 AD3d 480 , citing, among other cases, Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 ; see also Hellert v Town of Hamburg, 50 AD3d 1481 , lv denied 11 NY3d 702 ). No evidence was submitted demonstrating what on-the-job training Santiago received from the co-worker at his prior employer; Santiago's duties as a "maintenance man" -- "check[ing] for oil, check[ing] [and cleaning] the [inter]locks," "cleaning the motor room, cleaning the top of the ca[b], [and] cleaning the pit [beneath the elevator]" -- do not suggest that he can render a reliable opinion regarding the cause of the failure of the interlock; and Santiago's deposition testimony does not demonstrate that he is familiar with the laws, rules, regulations, and accepted customs and practices in the field of elevator maintenance and repair (cf. Efstathiou v Cuzco, LLC, 51 AD3d 712 ). Because Imperial Elevator failed to demonstrate that Santiago is qualified to render a reliable opinion regarding the cause of the failure of the interlock, it failed to raise a triable issue of fact with respect to the issue of its negligence.
Our dissenting colleague concludes that Santiago is qualified to render an opinion regarding the cause of the failure of the interlock because he worked on elevators for approximately 20 years and that work entailed, among other things, "checking" and cleaning interlocks, including the interlocks in the elevator of this building. We disagree that these factors establish that Santiago was competent to render an opinion regarding the cause of the failure of the interlock. Evidence that a person has experience "servicing and repairing elevators," standing alone, does not establish that the person possesses the requisite skill, training, education, knowledge or experience from which it can be assumed that the person can render a reliable opinion regarding the cause of the failure of an interlock (see Matott, 48 NY2d at 459).
Dickman v Stewart Tenants Corp. (221 AD2d 158 ), cited by our dissenting colleague, is distinguishable. In Dickman, we rejected the defendant's claim that the plaintiff's expert was not qualified to testify regarding the causes of the misleveling of an elevator. We did so because that claim was unpreserved. In dicta, we stated that "the expert was qualified to testify regarding [causation] as he had 44 years of experience in the installation, maintenance and repair of elevators, including his tenure as one of four Staff Field Engineers with Otis Elevator Company" (id. at 158-159); no mention was made of the expert's skills, training, education, knowledge or other experience. The briefs in Dickman, however, disclose that the expert had been found qualified to render an expert opinion regarding the maintenance and repair of elevators in numerous other cases in both state and federal courts; after more than 10 years as an elevator mechanic, he trained elevator mechanics for 21 years; he had served as the vice president in charge of maintenance, ...