August 27, 2013
Christine JOHNSON, Plaintiff,
MUTUAL REDEVELOPMENT HOUSES, INC., Defendant. No. 112648/08.
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 it a complete copy of the proposed amended complaint. (N.Y.SCEF 40).
Mutual maintains that Nouveau's faulty repair caused the misleveling, and that because Mutual neither created or had notice of the problem, it cannot be held liable. It denies that it had exclusive control of the elevator, and asserts that it is Nouveau's responsibility to check the elevator car for dangers such as misleveling after a repair is completed. (N.Y.SCEF 31-1).
Although plaintiff does not dispute that Nouveau caused the misleveling, she claims that Mutual, as owner of the premises, has a non-delegable duty to keep the premises safe (N.Y.SCEF 44), and relies on the affidavit of her expert who asserts that Mutual should have inspected the elevator following the repair (N.Y.SCEF 45). She also maintains that once Nouveau returned the keys, Mutual resumed exclusive control of the elevator, thereby warranting an inference that Mutual was negligent. (N.Y.SCEF 44).
Nouveau contends that given the many elevator cars in the building, Mutual should have kept the elevator out of service " until it was certain that the elevator was operating properly" and that plaintiff's conversation with her neighbor raises a material issue as to whether Mutual timely and sufficiently attended to the misleveling once notified of it. (N.Y.SCEF 35). It denies having caused the misleveling. ( Id. ).
In reply, Mutual denies that the return of the keys constitutes evidence that it resumed exclusive control of the elevator, or even that Nouveau had completed its repairs, alleging that the elevator remained under Nouveau's observation at the time of the accident. (N.Y.SCEF 58).
A party seeking summary judgment must demonstrate prima facie, that it is entitled to judgment as a matter of law, by presenting sufficient evidence to negate any material issues of fact. (Forest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 314 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853  ). If the movant meets this burden, the opponent must offer admissible evidence to demonstrate the existence of factual issues that require a trial. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562  ). If the movant does not meet this burden, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad, 64 N.Y.2d at 853). A defendant moving for summary judgment must negate, prima facie, an essential element of the plaintiff's cause of action. (Rosabella v. Metro. Trans. Auth., 23 A.D.3d 365, 366 [2d Dept 2005] ). Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable. ( Forest, 3 N.Y.3d 314). Moreover, " as a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v. Esposito, 4 A.D.3d 399, 400 [2d Dept 2004], quoting George Larkin Trucking Co. v. Lisbon Tire Mart, Inc., 185 A.D.2d 614, 615 [4th Dept 1992] ).
Negligence arises from a duty, a breach thereof, and an injury proximately caused thereby. (Kenney v. City of New York, 30 A.D.3d 261, 262 [1st Dept 2006] ). A building owner has a nondelegable duty to maintain all parts of its premises in a safe condition (Administrative Code of City of N.Y. § 27-127, 128), which includes maintaining and repairing elevators (Rogers v. Dorchester Assoc., 32 N.Y.2d 553  ). The nondelegable duty is not avoided by the hiring of a repair company to maintain and service elevators. (See Kleinberg v. City of New York, 61 A.D.3d 436, 438 [1st Dept 2009] [owner may still be held liable when it " had the authority to control the injury producing activity" ]; O'Neill v. Mildac Props., 162 A.D.2d 441, 442-443 [2d Dept 1990] [owner liable, regardless of elevator repair company's negligence, when dangerous condition sufficiently longstanding that owner should have independently discovered it] ). Liability for a dangerous condition on premises may arise from the duty owed by virtue of ownership, occupancy, control, or special use of the premises ( Jackson v. Bd. of Educ. of City of New York, 30 A.D.3d 57, 60 [1st Dept 2006] ), and whether a dangerous condition exists on premises " depends on the particular circumstances of each case and is generally a question of fact for the jury" ( Shalamyeva v. Park 83rd St. Corp., 32 A.D.3d 387, 388 [2d Dept 2006] ).
Before an owner of premises may be held liable for a dangerous condition on the premises, the owner must have notice of the dangerous condition. ( Herman v. State of New York, 63 N.Y.2d 822  ). For a premises owner to be deemed to have received notice of a dangerous condition, the condition must be visible and apparent for a sufficient period of time before the accident so that the owner, exercising reasonable care, should have discovered and remedied it. ( Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837  ).
Thus, in order to prevail on a motion for summary judgment dismissing a claim for negligence arising from the failure to remedy a dangerous condition, a premises owner must show, prima facie, that it neither created nor had notice of a dangerous condition on the premises. ( See Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 458 [1st Dept 2011] lv denied, 17 N.Y.3d 708 ; Gjonaj v. Otis El. Co., 38 A.D.3d 384 [1st Dept 2007] ). A premises owner satisfies its burden of showing that it lacked notice of the dangerous condition by offering in evidence admissible statements based on personal knowledge. ( De La Cruz v. Lettera Sign & Elec. Co., 77 A.D.3d 566, 566 [1st Dept 2010] ).
Here, there is no evidence that Mutual created the misleveling. O'Neill testified from his own personal knowledge that the elevator never misleveled before Nouveau's repair, Christiano acknowledged that Nouveau mechanics are responsible for inspecting elevators for misleveling, and Russo admitted that despite his usual practice of checking elevator operations and recording this task, this information is absent from his May 9 repair ticket and he does not recall whether he checked that day. Moreover, Mutual was advised of the misleveling after plaintiff's accident, and the hour that transpired between the repair and the accident is not sufficiently lengthy that Mutual ought to have discovered it. Thus, Mutual has offered prima facie evidence that it neither created nor had notice of the misleveling, thereby satisfying its burden on the motion. ( See San Andres v. 1254 Sherman Ave. Corp., 94 A.D.3d 590, 591 [1st Dept 2012] [owner entitled to summary judgment when property manager, during his weekly inspections, never saw elevator mislevel]; Gjonaj, 38 A.D.3d at 384 [owner entitled to summary judgment upon showing absence of prior complaints within six month period, and absence of recorded past problems by elevator repair company] ).
Although plaintiff's expert opines that Mutual was negligent in failing to inspect Nouveau's repair, as the plaintiff admits that the floor and car were level when she entered, there is an insufficient basis for finding that Mutual would have discovered any misleveling before plaintiff's accident. Additionally, the hearsay statement of plaintiff's neighbor is inadmissible. ( See Waiters v. N. Trust Co. of New York, 29 A.D.3d 325, 327 [1st Dept 2006] [" hearsay evidence alone is insufficient to raise a triable issue of fact as to notice of a dangerous condition" ] ). Even if this statement is credited, it does not raise a triable issue absent any evidence that the neighbor notified Mutual. ( See Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 459 [1st Dept 2011], lv denied 17 N.Y.3d 708  [affidavit alleging that elevator misleveling was " a well-known problem in the building" insufficient to establish notice when affirmant did not complain to owner] ).
B. Inference of negligence
When the actual, specific cause of an injury is unknown, the fact finder may nonetheless " infer negligence from the circumstances of the occurrence." ( Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494  ). For an inference of negligence to be drawn from particular circumstances, the plaintiff must establish that " (1) the occurrence ... would not ordinarily occur in the absence of negligence; (2) when the elevator ... caused plaintiff injury it was within the exclusive control of the defendant(s); and (3) nothing plaintiff did in any way contributed to the happening of the event." ( Hodges v. Royal Realty Corp., 42 A.D.3d 350, 351-352 [1st Dept 2007] ). Here, the issue is whether Mutual " exercised such a degree of control over the elevator's operation as to provide a rational basis for finding that the malfunction ... occurred as the result of its negligence." ( Id. at 352).
In Hodges, the Appellate Division, First Department, held that a premises owner's liability hinges on the nature of its relationship with the elevator repair company, relying on the parties' contract attributing to the repair company " all responsibility for the daily operation of the building's elevators," leaving the premises owner with " no role in inspecting, maintaining or repairing the elevators." ( Id. ). The court observed that the repair company " not only provided a mechanic on site to handle all service calls and performed all routine and preventative maintenance as well as periodic inspections, it also informed [the premises owner] when any additional work on the elevators was needed." ( Id. ). Thus, while the premises owner owned the elevators, it had nothing to do with their maintenance or operation. The court consequently held that there was no basis for concluding that the owner " did something, or failed to do something, that caused this accident." ( Id. ).
By contrast, in Singh v. United Cerebral Palsy of New York City, Inc. 72 A.D.3d 272 (1st Dept 2010), the Appellate Division, First Department, held that the plaintiff, injured as a result of a malfunctioning elevator door sensor mechanism, raised triable issues as to an inference of negligence against the premises owner, reasoning that such an inference may be applied " where more than one defendant could have exercised exclusive control." ( Id. at 277). The court observed that the premises owner's contract with the elevator repair company was not an exclusive maintenance contract but provided as-needed services. Therefore, that the elevator company occasionally made repairs on the sensor mechanism did not " remove the sensor from [the premises owner's] exclusive control." ( Id. ).
Mutual's contract with Nouveau to service its elevators was exclusive. (N.Y.SCEF 31-11). Mutual referred all elevator complaints or problems in its housing complex to Nouveau. (N.Y.SCEF 31-8; 31-17). Nouveau performed monthly maintenance checks on the elevators, or more frequently if a specific elevator required repairs, and Nouveau mechanics were entrusted with keys to the elevator. (N.Y.SCEF 31-9). This relationship reflects that, as in Hodges, and in contrast to Singh, Mutual was neither in a position to maintain the elevators, nor was it in exclusive control of the elevator car in question. Thus, there is no evidentiary basis offered for inferring that Mutual was negligent.
IV. PLAINTIFF'S CROSS MOTION
A cross motion may not be used to seek affirmative relief from a nonmoving party. ( Mango v. Long Is. Jewish-Hillside Med. Ctr., 123 A.D.2d 843, 844 [2d Dept 1986] ). Nonetheless, the court may disregard such a defect when there is no prejudice and the non-movant has had ample opportunity to be heard on the merits of the relief sought in the cross motion. (CPLR 2001; Vople v. Canfield, 237 A.D.2d 282, 283 [2d Dept 1997]; Klein v. Sujin Food Corp., 2006 WL 6103090 [Sup Ct, N.Y. County], mod on other grounds, 30 A.D.3d 331 [1st Dept 2006] ). Here, plaintiff has complied with the prior justice's order by attaching to her cross motion the proposed amended verified complaint (N.Y.SCEF 43), there is no alleged prejudice, and defendants had an ample opportunity to be heard on the cross motion.
As motions for leave to amend the pleadings are freely granted absent a showing of prejudice to the non-movant (CPLR 3025[b]; Global Bus. Inst. v. Rifkin Radler, LLP, 82 A.D.3d 553 [1st Dept 2011]; Degregorio v. Am. Mfrs. Mut. Ins. Co., 90 A.D.3d 694, 696 [2d Dept 2011] ), and Nouveau, as third-party defendant, has participated in all aspects of the litigation and does not allege any prejudice, there is no basis for denying leave here.
Accordingly, it is hereby
ORDERED, that defendant Mutual Redevelopment Houses, Inc.'s motion for an order dismissing plaintiff's complaint is granted, and the complaint is dismissed and severed as to this defendant; it is further
ORDERED, that the Clerk is directed to enter judgment accordingly;
ORDERED, that plaintiff's cross motion for leave to renew is granted, and upon renewal, the motion to amend is granted; it is further
ORDERED, that the amended verified complaint in the proposed form annexed to the moving papers and e-filed at NYSCEF Doc. No. 43 shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further
ORDERED, that upon said service, the action shall bear the following caption:
NOUVEAU ELEVATOR INDUSTRIES, INC.,
ORDERED, that the defendant shall serve an answer to the amended complaint or otherwise respond thereto within 20 days from the date of said service; and it is further
ORDERED, that counsel for the moving party shall serve a copy of this order with notice of entry upon the County clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records to reflect the amended caption.