This decision has been referenced in a table in the New York Supplement.
Matthew J. Fein, Esq., Pazer, Epstein & Jaffe, P.C., New York City, for plaintiff.
Vanessa Keegan-Natola, Esq., Wilson, Elser, et. al., New York City, for Mutual.
Peter J. Verdirame, Esq., Chesney & Nicholas, LLP, Baldwin, for Nouveau.
BARBARA JAFFE, J.
Defendant Mutual Development Houses, Inc. (Mutual) moves pursuant to CPLR 3212 for an order dismissing the complaint, or in the alternative, granting an order of indemnification against third-party defendant, Nouveau Elevator Industries, Inc. (Nouveau) in the event liability is assessed against it. Plaintiff and Nouveau oppose. Plaintiff also cross-moves pursuant to CPLR 2221 to renew an order denying her motion to amend the caption and join Nouveau as a direct party defendant. Nouveau opposes.
I. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND
On March 24, 2005, Nouveau entered into a full coverage maintenance contract with Mutual, owner of 355 Eighth Avenue, New York, New York, building 8B, by which Nouveau agreed to provide " daily systematic examinations, adjustments, cleaning, and lubrication of all machinery ..." including, among other things, adjusting elevator cars " to provide accurate leveling within 1/4" of the floor level." (N.Y.SCEF 31-11).
On May 8 and May 9, 2008, Nouveau was at the premises to replace the sheave, a pulley that controls elevator movement, and install new hoist cables on the subject elevator. The repairs were completed sometime between 2 and 3 pm on May 9, whereupon service resumed. Mutual's security log book reflects that at 2:17 pm, a Nouveau repair mechanic left the elevator keys at Mutual's security office. (N.Y.SCEF 31-38; 31-14). Soon thereafter, at approximately 3:15 pm, plaintiff tripped and fell while exiting one of the elevators. (N.Y.SCEF 31-6). The following day, she reported the incident to Mutual. (N.Y.SCEF 31-7). On or about September 17, 2008, plaintiff commenced the instant action against Mutual (N.Y.SCEF 31-2), and on or about May 21, 2009, Mutual commenced a third-party action against Nouveau (N.Y.SCEF 31-4).
At an examination before trial (EBT) held on September 29, 2010, plaintiff testified that the elevator car appeared level with the floor when she entered the car, that she fell as she exited, and that immediately after she fell, she noticed that the floor of the car was not flush with the ground floor. (N.Y.SCEF 31-7). Plaintiff also testified that her neighbor told her following the accident she had seen the elevator mislevel that morning. ( Id. ).
At an EBT held on June 6, 2011, Larry O'Neill, director of safety for Mutual, testified that on May 9, at approximately 3:30 pm, Mutual security was informed that the elevator was not level with the floor, whereupon at approximately 4 pm, Mutual security officer Aaron Daily inspected it and removed it from service. (N.Y.SCEF 31-8). The security log reflects that at 4:02 pm, the elevator car was " taken out of service and Nouvueau [was] notified." ( Id. ). The Nouveau repair tickets dated May 9, 2008 shows that at 7:06 pm Nouveau remedied the problem by " relearning" the board that controls leveling in the elevator, and that service resumed shortly thereafter. (N.Y.SCEF 31-12; 31-13). According to O'Neill, the elevator never had a misleveling problem before Nouveau's May 9 repair. (N.Y.SCEF 31-8).
At an EBT held on December 14, 2011, Donald Christiano, general manager of Nouveau's service department, testified that it is the mechanic's responsibility to check the elevator car upon completing a task, which includes ensuring that the car is level with individual floors. (N.Y.SCEF 31-17).
At an EBT held on March 26, 2012, Ronald Russo, the Nouveau mechanic who performed the repairs on the elevator the day of the accident, testified that his usual practice following a repair is to check that the elevator is working properly, return it to service, and record his activity on a work ticket. This information does not appear on his May 9 ticket, and Russo did not recall if he had checked the elevator or put it back into service following this repair. (N.Y.SCEF 31-9).
By order dated August 15, 2012, the judge previously presiding in this part denied without prejudice plaintiff's motion for an order amending the caption and joining Nouveau as a direct defendant, and permitted her to renew the motion upon annexing to ...