JOAN A. MADDEN, J
In this personal injury action, defendant Federal Express Corporation ("FedEx") moves pursuant to CPLR 3211 to dismiss the complaint against it, arguing, inter alia, that it owes no duty to plaintiff. Plaintiff Russell Chanice ("Chanice") opposes the motion, as do defendants Hunter Roberts Construction Group ("Hunter Roberts"), defendant Empire State Building Company LLC ("Empire State"), and third-party defendant E-J Electric Installation Co. ("E-J").
Chanice seeks to recover damages for injuries that he allegedly sustained on June 8, 2009, when he as struck in the head by the top of a bi-parting elevator door. At the time of the accident, Chanice was working as an electrical construction worker for E-J, a subcontractor of Hunter Roberts, at 350 Fifth Avenue (a/k/a the Empire State Building). Empire State is the owner of the building in which the elevator is located, and Hunter Roberts was a contractor hired to perform certain renovation and construction work in the building. Second third-party defendant New York Elevator & Electrical Corporation, now known as Thyssenkrupp Elevator Corporation ("Thyssenkrupp"), operated and maintained the elevators at the building.
The complaint alleges, inter alia, that Chanice's injuries were caused by the negligence of Empire State and Hunter Roberts in the operation, repair, maintenance, and control of the elevator and premises, and by the failure of Hunter Roberts to provide a safe work place.
On December 30, 2010, Hunter Roberts commenced a third party action against E-J. Chanice subsequently moved to amend the complaint to add FedEx as a defendant. By decision and order dated January 12, 2012, the court granted plaintiffs motion, finding that plaintiff had adequately shown that his injuries were potentially caused by the negligence of the FedEx employee as supported by a video tape of the accident showing that the FedEx employee apparently pushed the button of the self-operating freight elevator thus causing the biparting doors to close and strike Chanice in the head. While FedEx opposed the motion, as it was not yet a party, the court did not consider its arguments in opposition.
The amended complaint alleges, inter alia, that plaintiffs injuries were caused by the negligence of FedEx's agent and/or employee, who was in the elevator with Chanice at the time of the accident. It further alleges that this negligence includes failing to properly operate the elevator; failing to properly press buttons of the elevator door; operating the elevator with his back toward entrance; failing to observe whether or not anyone was entering the elevator before pressing the button to close elevator; and negligently closing the elevator doors.
FedEx now moves to dismiss the claim against it, asserting that Chanice has not alleged any specific actions attributable to FedEx, which could have caused the accident. Furthermore, FedEx contends that its employee merely pushed a button which triggered the closing of the elevator doors. FedEx also argues that even if by pushing the button its employee caused the accident, its employee did not owe any duty to Chanice, and that in cases where a person injured by a closing door is permitted to recover from such person, the tortfeasor is an employee whose job responsibilities include the duty of opening and closing doors, thus creating a relationship and attendant duty. FedEx argues that its courier was not an employee of Empire State or the building management company and therefore was not responsible for safely operating the elevator. FedEx argues that to find otherwise, would impose a duty on all passengers in an elevator to operate the doors carefully or to be subject to tort liability.
In opposition, Chanice argues that the FedEx courier voluntarily assumed the performance of a duty based on allegations that at the time of the accident the FedEx courier was operating the freight elevator. Chanice argues that FedEx overlooks the common law doctrine of assumption of duty, which requires a person who assumes a duty to act carefully under the reasonably prudent person standard. Chanice also asserts that the FedEx courier breached his duty by operating the controls of the elevator with his back towards the entrance of the elevator and without checking if anyone was attempting to enter the elevator before pressing the button to close the bi-parting doors.
Hunter Roberts and Empire State also oppose the motion, arguing that it should be denied as premature since no meaningful discovery has been conducted with FedEx. The co-defendants also assert that the FedEx courier voluntarily assumed a duty to Chanice when he purportedly decided to operate the freight elevator in the course of his employment for FedEx. Third-party defendant E-J similarly argues that FedEx has failed to demonstrate that it did not owe a duty to persons, such as plaintiff, who could foreseeably be injured by the actions of its employees.
In reply, FedEx argues that the doctrine of assumption of duty is inapplicable to the instant action because it requires reliance on the part of the plaintiff. FedEx asserts that there is no basis in law or policy to find that the FedEx courier owed a duty Chanice.
At oral argument on October 11, 2012, Chanice's counsel introduced the transcript and decision in Spielman v. Broadway Real Estate Services, et al. Index No. 112287/11 (Sup Ct NY Co. Aug. 15, 2012), another action in which FedEx was sued in connection with injuries sustained in an elevator accident. In Spielman. plaintiff alleged that the action of FedEx's courier in using a passenger elevator with an overloaded delivery cart caused that elevator to mis-level and resulted in injuries to the plaintiff. The court in Spielman denied FedEx's motion to dismiss, holding that its employee owed a duty to ensure that loads brought onto the elevator did not create an unreasonably dangerous condition.
In a two-page letter brief dated October 22, 2012, FedEx argues that Spielman is not dispositive here, since the injuries in this action were not ...