Illuminado Pastoriza as Administrator of the Estate of MARIBEL PASTORIZA, and ILLUMINADO PASTORIZA, Individually, Plaintiffs,
The New York City Housing Authority, and AMERICAN SECURITY SYSTEMS, INC., , Defendants.
Rosenbaum & Rosenbaum, PC Attorneys for Plaintiff
Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP Attorneys for Third-Party Defendant
Neil R. Finkston Herzfeld & Rubin, PC Attorneys for Defendant
Anil C. Singh, J.
In this wrongful death action, plaintiff Illuminado Pastoriza (Pastoriza) alleges that defendants New York City Housing Authority (NYCHA) and American Security Systems, Inc. (ASSI) were negligent in maintaining the intercom system in his apartment building and, as a result, emergency medical personnel were unable to get to his apartment in time to save the life of his wife after she suffered an asthma attack. Defendant NYCHA moves for summary judgment dismissing the complaint and any cross claims against it (seq. # 004). By separate motion (seq. No. 003), defendant/third-party defendant ASSI also moves for summary judgment dismissing the complaint, the third-party complaint, and any cross claims against it. The motions are consolidated for purposes of their disposition.
On June 19, 2006, and for approximately 15 years prior to that date, Pastoriza and his now deceased wife, Maribel Pastoriza, resided in Apartment 6A, at 140 Columbia Street, on the lower east side of Manhattan (the building). Pastoriza Dep., Ex. C to Finkston Aff. in Support of NYCHA's Motion (Finkston Aff.), at 9. The 14-story building is part of a public housing development, known as the Baruch Houses, owned and operated by NYCHA. Dep. of Henry Thompson (Thompson Dep.), Ex. L to Finkston Aff., at 8. At the front entrance to the building, which had a door with a lock, an intercom system was installed, permitting residents to "buzz" visitors into the building. Access to the building was also possible through the front entrance of an adjoining building located at 130 Columbia Street, which connected to 140 Columbia Street and shared the intercom system. 50-H Hearing, March 14, 2007, Ex. B to Finkston Aff., at 32.
The intercom system connected each apartment to the front entrance door using telephone lines installed in each tenant's apartment. Dep. of Robinson Milsois (Milsois Dep.), Ex. J to Finkston Aff., at 38. The intercom had a "lobby panel" with a speaker, a microphone, and a keypad, which allowed a visitor to call a resident. Id. at 29-31. To operate the intercom, a visitor pressed numbers on the keypad which corresponded to a code assigned to each apartment. Id. at 32. After dialing the code, the visitor heard a ringing sound, and then would be able to hear the person inside the apartment who answered the call. Id. at 32-33. To answer the intercom, a tenant needed to pick up a telephone connected to the intercom, and, after speaking to the person seeking entry, the tenant could open the front door by pressing "9, " which released the front door lock. Id. at 33-35. A beeping sound indicated to the visitor that the door was unlocked. Id. at 33.
Defendant ASSI had a contract with NYCHA (the contract), commencing on or about April 1, 2006, to provide service and maintenance of the intercom systems at various NYCHA developments and buildings, including the building at 140 Columbia Street. See Requirement Contract, Ex. G to Thompson Aff. in Support of ASSI's Motion for Summary Judgment (Thompson Aff.); Dep. of Freeman Grady (Grady Dep.), Ex. T to Gammons Aff. in Opp. to Defendants' Motions (Gammons Aff.), at 97-98. The intercom system was installed by another company some years before ASSI entered into the contract with NYCHA. Grady Dep., at 91-92. The contract provided that ASSI "shall provide service and repair... to maintain the intercom systems in properly functioning and good condition." See Thompson Aff., ¶ 12; Requirement Contract, Specifications, § III (A). The contract further set out the procedures for ASSI to be notified of, and to respond to, requests for repairs, and required ASSI to make quarterly visits to inspect the intercom systems. See Thompson Aff., ¶ 13; Requirement Contract, Specifications, § V; Milsois Dep., at 40-41, 45-46.
According to ASSI technician Robinson Milsois (Milsois), the quarterly service visits generally included inspection of intercom components located in the basement of the building, to check that the system as a whole was operational, followed by a test of the front entrance intercom components. Milsois Dep., at 63-64, 77-79. The front entrance intercom was tested by randomly calling a tenant, to check that the microphone, speaker, and keypad were working, and that the buzzer opened the door. Id. at 74-75. If a technician found a problem during a quarterly inspection, the technician would fix the problem (id. at 92), and any repairs that were done would be noted on the service record. Id. at 67, 81. The same procedure was repeated at every building to be serviced. Id. at 76.
On May 16, 2006, ASSI conducted a quarterly inspection of the intercom system in the building, as well as the systems in all other buildings in the Baruch Houses development. See Intercom Service Authorization, Ex. K to Finkston Aff.; Milsois Dep., at 48-49. The service order reflecting the May 16, 2006 inspection indicates that technician Andrew Holder "performed quarterly service on entire development" and "all tested ok." See Service Order, Ex. K to Finkston Aff.; Milsois Dep., at 49-50, 71. Milsois testified that "tested ok" meant that all intercom components were working (id. at 85), that one could talk and listen on the intercom and buzz the door (id. at 71), and that no problems were found. Id. at 82. Records show that Holder started the inspection at 8:30 a.m. and completed it at 12:00 noon. See Service Order, Ex. K to Finkston Aff.; Milsois Dep., at 83.
Shortly after midnight on June 19, 2006, when he and his wife were in their apartment, Pastoriza discovered that his wife was having an asthma attack. When he saw that she continued to struggle to breathe, even after using her inhaler, he called 911. 50-H Hearing, March 14, 2007, at 18, 20; Pastoriza Dep., at 18-20. Pastoriza testified that he made the call to 911 about four to five minutes after his wife began having trouble breathing, at about 12:15 a.m. 50-H Hearing, March 14, 2007, at 20-21; Pastoriza Dep., at 19-20. Call records submitted by the parties show that the call was received at about 12:34 a.m. See FDNY Call Report, Ex. V to Gammons Aff. in Opp.; Pastoriza Dep., at 70. After he made the 911 call, Pastoriza called his wife's daughter, Maria, spoke to her for "less than a minute, " (id. at 59-60), and then noticed that his wife was not breathing. Id. at 60. Minutes later, at about 12:50 a.m., he called 911 a second time, to find out where the ambulance was. Id. at 62-63, 71. Plaintiff did not recall how long after the second call emergency medical workers arrived at his apartment (id. at 65-66), but Fire Department records indicate that emergency medical workers arrived at plaintiff's apartment while he was on the telephone. Id. at 71; see FDNY Call Report, Ex. V to Gammons Aff. in Opp.
Emergency medical service (EMS) workers dispatched from New York Downtown Hospital were the first emergency medical workers to reach plaintiff's apartment on June 19, 2006. See Ambulance Call Report, Ex. Q to Finkston Aff.; Dep. of Jason Morrissey (Morrissey Dep.), Ex. P to Finkston Aff., at 12, 73-74. Subsequently, FDNY emergency medical technicians (EMTs) arrived. Jason Morrissey, then an FDNY EMT, testified that he and his partner received a call at 12:57 a.m., on June 19, 2006, to respond to an emergency at plaintiff's address, and when they arrived at the building, they saw that EMS workers from New York Downtown Hospital were already there. Morrissey Dep., at 12. Morrissey ...