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Meade v. Otis Elevator Co.

United States District Court, S.D. New York

December 18, 2017

JUNIOR MEADE, Plaintiff,
v.
OTIS ELEVATOR COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          LAURA TAYLOR SWAIN UNITED STATES DISTRICT JUDGE

         In this single-count negligence action, Plaintiff Junior Meade (“Meade” or “Plaintiff”) seeks to recover damages from Defendant Otis Elevator Company (“Otis” or “Defendant”) for severe and permanent injuries allegedly suffered by Plaintiff as a result of an April 20, 2012, accident involving a service elevator manufactured, installed, and maintained by Defendant. Defendant now moves for summary judgment and the dismissal of the action. (Docket Entry Nos. 26 and 27.) Defendant also moves to preclude the expert report and testimony of Plaintiff's expert Patrick A. Carrajat. (Docket Entry No. 34.) Plaintiff moves to strike Docket Entry Numbers 55 through 67, or portions thereof, asserting that Defendant raised new arguments and facts in its reply papers. (Docket Entry No. 70.)

         The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332.

         The Court has reviewed carefully the parties' submissions. For the following reasons, Defendant's motion for summary judgment is granted in part, Defendant's motion to preclude Plaintiff's expert is denied and, in light of the Court's disposition of Defendant's motion for summary judgment, Plaintiff's motion to strike Docket Entry Numbers 55-67 or portions thereof based on new arguments and facts is denied as moot.

         Background

         Unless otherwise indicated, the following facts are undisputed.[1]Plaintiff was employed at all relevant times by Mount Sinai Hospital (“Mt. Sinai”) as a supplies and equipment handler. (Def. 56.1, Docket Entry No. 29, ¶ 2.) Plaintiff alleges that on April 20, 2012, he suffered injuries as the result of “an alleged misleveling of an elevator at the premises known as 1425 Madison Avenue, New York, New York [(the “Premises”)] . . . on the MC floor.” (Id. ¶ 3.) That elevator (the “Subject Elevator”) “is identified by Mount Sinai Hospital as the East Passenger elevator 119, ” by OTIS as machine number 380155, [and] by the New York City Department of Buildings as Device IP37721, and is an OTIS Electronic 401 model programmed to service the FC, MC, 1 through 18 floors, of the Premises.” (Id. ¶ 4.) Defendant “serviced certain electromechanical components of the [S]ubject [E]levator at the time of the alleged accident, ” pursuant to an elevator maintenance contract with Mt. Sinai. (Id. ¶ 5.) To Defendant's knowledge, Defendant installed each part of the Subject Elevator, including the leveling system, and its “maintenance and repair” are “handled exclusively by Otis at [Mt.] Sinai.” (Deposition of the Defendant, by Steven Kleber, Tr. (“Kleber Dep. Tr.”), David Paul Horowitz Declaration (“Horowitz Decl.”), Exhibit O, Docket Entry No. 38-7, at 24:14-25:16, 18:2-5.)

         Defendant's Service Records

         A review of Defendant's service records, which “reflect all procedures, repairs and callbacks” for the Subject Elevator, spanning the time period of April 20, 2011, through April 24, 2012, “reflect no leveling complaints in the year prior, and [for] four days after April 20, 2012, ” “no [placement of a] service call to” Defendant on the date of the alleged misleveling, and “no repairs to, or replacements of the selector tape or PPT.” (Affidavit of Steven Kleber (“Kleber Aff.”), Horowitz Decl., Docket Entry No. 31-6, ¶ 9.) The records show there was no report of an “issue with the stopping or leveling” of the Subject Elevator, and none of Defendant's resident elevator maintenance mechanics at Mt. Sinai “ever observed, or had reported to them, ” a misleveling incident in the Subject Elevator. (Id. ¶¶ 11, 13.)

         Plaintiff's expert has testified that he was “not aware and [has] no proof of any prior incidents of misleveling of the [S]ubject [E]levator at any time before Mr. Meade's alleged accident.” (Deposition of Plaintiff's Expert Patrick A. Carrajat (“Carrajat Dep.”), Horowitz Decl., Docket Entry No. 38-3, 166:23-167:4.) He further avers that the records do not indicate whether the Subject Elevator's leveling was tested during the relevant period, and he characterizes the records as incomplete “as to all the work that was performed” on the Subject Elevator and “lack specific detail to determine the specifics of the work performed that was reported.” (Affidavit of Patrick A. Carrajat, (“Carrajat Aff.”), Shimko Decl., Exhibit 2, Docket Entry No. 53-2, ¶¶ 14-15.) He asserts that the records “paint [a] general picture that in the months prior to the accident date of April 20, 2012, [Defendant] worked on this elevator frequently [but Plaintiff] do[es] not have proof that the work was done correctly and did not cause a problem with the PPT leveling.” (Id. ¶ 12.) Plaintiff's expert avers that Plaintiff and he “cannot trust the maintenance, service, and repair records produced” in the above-captioned action. (Id. ¶ 15.)

         The Alleged Elevator Incident

         On the date of the alleged incident, Plaintiff was instructed to move a wood pallet with heavy containers of fluid chemicals stacked in two layers that was temporarily stored in a staging area on the MC floor. (Def. 56.1 ¶¶ 7-8.) The pallet, which rested atop a manual pallet jack, was approximately nine square feet, and the height of the load was chest high; Plaintiff alleges that “he could not see over the top of the load positioned on the pallet jack.” (Id.; see also Pl. Resp. to Def. 56.1, Docket Entry No. 54, ¶ 8; Meade Deposition Tr., Horowitz Decl., Exhibit M-2, Docket Entry No. 48-12, at 402:25-403:21.) Plaintiff further alleges that, after pumping the handle of the pallet jack “to raise the pallet and load off the ground so it could be moved, ” he “pulled and steered the manual pallet jack with the heavy load of chemicals through the corridor towards the elevator lobby at the MC level.” (Def. 56.1., ¶ 9.) At the east elevator lobby, Plaintiff states, he “positioned the pallet jack to one side so as not to block the area in front of the elevators, ” and summoned an elevator to arrive. (Id. ¶ 10.) Plaintiff testified that when the Subject Elevator arrived, he “glanced” and “looked down” into the elevator, but did not “look to see if [the elevator floor] was that level on where it meets the door, ” nor did he “see if [the elevator doors] had little lips or knots going all the way down until when the wheels [of the pallet] hit it.”[2] (Meade Deposition Tr., Horowitz Decl., Exhibits M-1 and M-2, Docket Entry Nos. 48-11 and 48-12, at 372:4-373:13, 388:21-23; see also Def. 56.1, ¶ 12, Pl. Resp. to Def. 56.1 ¶ 12.) Plaintiff further testified that, when the Subject Elevator arrived, he “reached into the elevator cab to press the emergency stop button” on the elevator car operating panel, in order “to prevent the elevator doors from closing, so that he could push the pallet jack with the load onto the elevator.” (Def. 56.1, ¶ 11.)

         According to Plaintiff's account of the incident, after pressing the emergency stop button, Plaintiff “lined up the pallet jack with the load, straight in front of and in the center of the elevator door opening, ” and “the front of the pallet jack with the load was approximately 8 inches away from the opening of the elevator.” (Id. ¶¶ 15-16.) Plaintiff alleges that he looked to the right and to the left sides to ensure he was “clear of the elevator doors so as not to hit the doors as he pushed the pallet jack with the load onto the elevator.” (Id. ¶ 16.)

         Plaintiff testified that, at that point, he “pushed the pallet jack forward towards the elevator” and that the “‘heavy'” pallet jack then “came to a sudden, sharp stop, causing injury to his back.” (Id. ¶ 18 (quoting Meade Deposition Tr., Horowitz Decl., Exhibit M-2, Docket Entry No. 48-12, 408:22-25).) After the pallet jack stopped, Plaintiff stepped back and “did not move the pallet jack from the position where it came to a stop.” (Id. ¶ 19.) The parties dispute the import of Plaintiff's testimony regarding the location of the front of the pallet jack in relation to the elevator opening at the time of the accident; Defendant argues that Plaintiff's testimony places the wheels of the pallet jack well away from the space between the elevator opening and the elevator cab, while Plaintiff proffers that the dimensions of the elevator opening were consistent with his testimony that the pallet jack wheels were obstructed by misleveling at that space. (See Pl. Resp. to Def. 56.1 ¶ 20.) Plaintiff testified that he “tried to pull the pallet jack back from the raised lip” of the elevator cab floor before he left the scene of the alleged incident. (Pl. Resp. to Def. 56.1, ¶ 23; Def. 56.1 ¶ 23.)

         According to Plaintiff, he then “returned to the loading dock area to report the incident to his supervisors, and did not return to the [S]ubject [E]levator at any time thereafter, ” and a Mt. Sinai employee accident/incident report was later prepared. (Def. 56.1 ¶ 24.) Marlon Rodriques, a coworker of Plaintiff, ultimately completed the task of delivering the pallet of liquid chemicals. (Id. ¶ 25.) Mr. Rodriques proffers in a declaration that he observed that the level of the elevator cab floor was higher than the “outside MC level floor” and “that the front two wheels of the loaded pallet jack were resting up against the raised floor of the elevator cab.” (Declaration of Marlon Rodriques (“Rodriques Decl.”), Daniel Shimko Declaration (“Shimko Decl.”), Docket Entry No. 53-1, ¶ 4.)

         On or about April 20, 2015, Plaintiff filed a one-count negligence Complaint in the Supreme Court of the State of New York, County of Bronx, and on June 22, 2015, Defendant removed the ...


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