Opinion
100716/05.
Decided March 18, 2008.
Plaintiffs were represented by Salenger Sacks, Michael Schwartz, Esq. The defendants Ocean Prime, LLC, Douglas Elliman Realty, LLC, and Newmark Co. Real Estate, Inc., were represented by Klein Associates, Jeffrey Fippinger, Esq. The defendant Nouveau Elevator Industries, Inc., was represented by Wilson Elser Moskowitze Edelman Dicker, Nicholas Caiazzo, Esq.
Motion Sequences 002 and 003 are hereby consolidated for disposition.
Defendant Nouveau Elevator Industries, Inc. (Nouveau), moves in Motion Sequence 002 for summary judgment dismissing the complaint. In Motion Sequence 003, defendants Ocean Prime, LLC (Ocean), Douglas Elliman Realty, LLC (Douglas) and Newmark Company Real Estate, Inc. (Newmark), move for summary judgment dismissing the complaint and all cross-claims against them or, alternatively, for summary judgment granting them common law and contractual indemnification against Nouveau.
This is an action for personal injuries allegedly sustained by plaintiff, Francesco Rubino, on January 22, 2004. There is no dispute that the incident occurred in a building located at 17 Battery Place, New York, NY (Building) in elevator number 20. Plaintiff was employed in the Building by an outside maintenance company. Plaintiff boarded the freight elevator, elevator number 20, on the twelfth floor and pressed the button for the lobby. When the elevator passed the eleventh floor, the lights went out and the cab dropped to two feet below the basement floor, crashing into the buffer in the pit. The parties agree that a digital analog reference (DAR) board, which was a component of the elevator controller, failed and was replaced by Nouveau after the accident. The DAR board is a circuit board that controls the speed and stopping of the elevator.
Ocean admitted in its answer to the amended complaint that it owned the Building. On February 27, 2003, Newmark, as managing agent for Battery Commercial Associates, LLC, and Nouveau entered into a contract to provide elevator services at the Building, which was in effect on the date of the accident. In the contract, Nouveau agreed to indemnify Newmark and Battery Commercial Associates, LLC, against any liability, including attorneys' fees, arising out of Nouveau's negligence.
The witness produced by Newmark, Dennis Egan, testified that elevator number 20 is in the mid-rise elevator bank of the lower commercial unit of the Building, which was owned by Battery Commercial Associates, LLC, part of the Moinian Group. Mr. Egan testified that the top floor of the commercial unit is the thirteenth floor. Newmark provided property management services to the Moinian Group. Ocean owned the upper residential portion of the Building, known as One West Street, which was managed by Douglas. Nevertheless, the motion by Ocean, Douglas and Newman is not posited on lack of ownership of the Building.
Witnesses for Nouveau and Newmark testified that the contract was not a full service contract. However, the testimony in the record establishes that it was not full service in the sense that the contract price only covered certain services. EBT Donald Christiano, p. 19-21; EBT Dennis Egan, p. 13-14, 18 58-59. When additional services were needed, Nouveau provided them and billed for the work. Id. If there was a problem with the elevators that was not covered by the contract, Nouveau would notify the Building management, who would negotiate a price for the work, which then would be performed by Nouveau. Id. During the year before the accident, Nouveau was the only company that inspected or worked on the elevators in the Building. Id. Indeed, violations issued by the Building Department were sent to the elevator company. EBT Egan, pp. 58-59.
Pursuant to the contract, Nouveau supplied a resident mechanic, who worked at the Building from Monday through Friday, during the hours of 8:00 a.m. to 5:00 p.m. EBT Egan, p. 44; Christiano EBT pp. 18-19 (Mr. Christiano said the mechanic's hours were from 8:00 to 4:30). After 5:00 p.m., if there was a problem with the elevators, the Building personnel would call Nouveau, who would send a repair person. Id. The contract obligated Nouveau to regularly and systematically inspect the controller and the controller fuses. In addition, Nouveau agreed in the contract to "periodically examine car safety devices and related equipment, governors and equalization of hoisting cables." All parties agree that the accident was caused by the failure of a component of the elevator controller, known as the DAR board.
According to the affidavit of plaintiff's engineering expert, Patrick McPartland, P.E., the proximate cause of the accident was the failure of the terminal stopping system, a safety device known as a governor, which is designed to lock the elevator in place if it exceeds certain speeds. Mr. McPartland states that the governor should have stopped the elevator from crashing onto the buffer. Mr. McPartland opines that the terminal slowing and stopping device, that functions independently of the normal stopping means, which in this Building was the controller, is required by the New York City Building Code. He states that elevators rely on principles of redundancy to achieve safety and that the elevator in this case had a terminal stopping system designed to slow the elevator and stop it before it reached the buffers in the event that the DAR board failed. Mr. McPartland avers that another term for the terminal stopping device is the "music box," which is part of the "car safety devices and related equipment" that Nouveau was required to "periodically examine" pursuant to the contract. Mr. McPartland states that for the elevator to have compressed the buffer 24 inches, as occurred in plaintiff's accident, it would have had to travel at a speed of 700 feet per minute. The buffer is designed to slow down and stop a fully loaded elevator at a much slower rate.
Nouveau submitted the expert affidavit of an engineer, Jon B. Halpern, P.E. Mr. Halpern states that the DAR board requires no maintenance; that under the contract Nouveau was not required to maintain, test, repair, or replace the DAR board; that Nouveau only was required to clean and visually inspect the DAR board; that the DAR board receives signals from the terminal slowdown limits, which are a set of independent switches located in the music box; and that the terminal slowdown limits have inputs on the DAR board, which are used to slow the elevator down in the event that the normal stopping means fails. He disagrees with Mr. McPartland's opinion that the terminal slowdown was a redundancy that would prevent the elevator from falling if the DAR board failed. Mr. Halpern's opinion is that although these functions are independent they are "summed at a single junction" and a single failure in the summing junction or after the summing junction can cause the elevator to fall onto the buffer.
Nouveau's deposition witnesses, Donald Christiano and Fred Shenkman, both engineers, contradict Mr. Halpern's opinion that the DAR board could not be adjusted, was maintenance free and was not backed up by the terminal switches/governor. In addition, they explained how the DAR board could be inspected and tested manually. Mr. Christiano said that under the contract, the controller, including the DAR board had to be inspected and adjusted once a month. EBT Christiano, p. 39. The terminal switch had to be inspected and adjusted when necessary. Id. at 39-40. Visual inspection of the DAR board would include seeing whether any component was fatigued due to heat, burn or corrosion. Id. at 112. The DAR board could be adjusted manually as well, but it was outside the contract price and would be done by a Nouveau engineer upon request. Id. at 68-69, 80 91. Mr. Shenkman testified that the DAR board could be tested using equipment and prints for the job. EBT Shenkman, pp. 28 65-66. He also said that if an elevator were operating too fast, a fault code would be generated at the controller and that, typically, if the DAR board malfunctioned the elevator should shut down on its own. Id. at 53. Both Christiano and Shenkman testified that the governor is a mechanical safety device that would lock the car from moving at excessive speed or landing on the buffer. EBT Christiano, p. 47 EBT Shenkman, p. 57. In fact, Mr. Shenkman said that it was impossible for the elevator to go too fast and not shut down. Shenkman EBT, P. 57. Mr. Christiano testified that if the elevator were not running properly, it could be an indication that the DAR board was not functioning properly and that a manual inspection of the DAR board could be performed, although it would involve extra billing. EBT Christiano, p. 65 69. However, Mr. Shenkman was equivocal on that point, in that he also testified that there was nothing that could have been done to check whether the DAR board was functioning properly prior to the accident. Shenkman, p. 31.
There also was testimony showing that the controller was serviced by Nouveau just prior to and after the accident. Mr. Christiano identified Nouveau work tickets, reflecting services involving the controller in September, November, and December 2003, as well as in January 2004. Id. at 64, 115-116 118-119. In November, fault screens, which are computerized error messages, were generated in the controller. They were examined by a Nouveau mechanic. Id. In September there was an extra billing ticket involving the controller. Id. at 64 114-119; see also, Shenkman EBT, pp. 61-62. After the accident, Mr. Shenkman replaced the DAR board. Id. at 65 Christiano EBT, pp. 120-121.
Discussion A. Liability of Nouveau
An elevator company that contracts to maintain an elevator in safe operating condition, may be liable to a passenger for "failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found." Rogers v. Dorchester Associates, 32 NY2d 553 (1973).Negligent inspection and repair may be inferred from the failure of a device when the elevator company has complete charge over and maintenance of the device. Id. at 560; see also, Solowij v. Otis Elevator Co., 295 AD2d 145 (1st Dept. 2002) (inference that elevator company did not conduct reasonably prudent inspections or competently maintain elevator raised triable factual issue as to whether company created or had constructive notice of defective condition). On a motion for summary judgment, an elevator company with a full service contract has the initial burden of establishing, as a matter of law, that it exercised reasonable care to discover and correct a dangerous condition which it ought to have found. Mezon v. Dover Elevator Co., 272 AD2d 227 (1st Dept. 2000).
The doctrine of res ipsa loquitur may be applied if it can be established that: "(1) the occurrence, i.e. the sudden and abrupt fall of the elevator, would not ordinarily occur in the absence of negligence; (2) when the elevator fell and 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 AD3d 350, 351-352 (1st Dept. 2007); accord, Miller v. Schindler Elevator Corp., 308 AD2d 312 (1st Dept. 2003) (summary judgment denied based on plaintiff's testimony, unsupported by expert evidence, of sudden drop). In deciding whether the elevator company has exclusive control, a court must look at the true relationship between the owner and the maintenance company in terms of the relative control each exercised over the elevator. Hodges, supra, at 352.
Nouveau argues that it is entitled to summary judgment because 1) it did not have a full service contract, 2) the DAR board could fail in the absence of negligence, 3) there was no notice that there were problems with the DAR board, and 4) there was an elevator consultant employed by the owner. The court disagrees.
The evidence is clear that elevator inspection and maintenance in the Building was performed by Nouveau exclusively. It had a resident mechanic on site every week day. All problems were referred to Nouveau, whether they were within the contract price or billed separately, day and night. The fact that Nouveau may have charged extra for some repairs does not negate its control over maintenance. Nouveau's control also may be inferred from its subsequent repair of the DAR board. See, Harris v. East Hills, 41 NY2d 446 (1977) (evidence of subsequent repair admissible to prove control). With respect to the consultant, there is no evidence as to when the consultant worked at the Building. Nouveau's attempt to frame the issue of whether it had an obligation to inspect and maintain the DAR board is too narrow a construction of the contract. The DAR board is a part of the controller, which Nouveau agreed to inspect and maintain. In addition, examination of the governor was also part of Nouveau's contractual obligation.
Nouveau did not meet its burden on this motion of demonstrating as a matter of law that it exercised reasonable care to discover and correct a dangerous condition which it ought to have found. Mezon v. Dover Elevator Co., supra. Although there is no evidence that the DAR board malfunctioned in the past, negligence may be inferred by the jury under the doctrine of res ipsa loquitur due to the nature of the accident, a sudden fall, based upon the evidence that the governor should have stopped the elevator. In addition, negligent inspection could be inferred because the controller was serviced by Nouveau in September, November and December of 2003 and in January 2004, just prior to the accident on January 22. The court notes that Mr. Christiano testified that the on-site Nouveau employee, Daniel Newman, who made some of these service calls on the controller just before the accident, was still employed by Nouveau. EBT Christiano, pp. 118-119. He wa not produced as a witness. The witnesses Nouveau supplied testified that they did not know what services were performed on the controller just prior to the accident and which error screens were checked. Hence, construing the evidence most favorably to the non-moving party, as the court must on a motion for summary judgment, Martin v. Briggs, 235 AD2d 192, 196 (First Dept. 1997), the inference may be drawn that Mr. Newman would have testified adversely to Nouveau. Noce v. Kaufman, 2 NY2d 347, 353 (1957)("where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits").
The expert affidavit submitted by Nouveau that the DAR board could fail suddenly at the summing junction in the absence of negligence and that the governor or terminal switches would not necessarily stop the car, conflicts with other evidence presented. It, therefore, raises questions of fact for the jury. Rogers v. Dorchester, supra, 32 NY2d at 561 ("whether the door could malfunction absent negligent inspection and maintenance is question for jury).
B. Liability of Ocean, Newmark and Douglas
It is well settled that a landowner has a duty to maintain his property in a reasonably safe condition. Basso v. Miller, 40 NY2d 233 (1976); Perez v. Bronx Park S. Assocs., 285 AD2d 402, 403 (1st Dept. 2001), appeal den., 97 NY2d 610 (2002). Hence, as there is evidence from which a jury could infer that elevator was not reasonably safe, Ocean is entitled to indemnification because it only can be held vicariously liable without fault. Rogers v. Dorchester, supra, 32 NY2d at 562; Linares v. Fairfield Views, Inc., 231 AD2d 418 (1st Dept. 1996). Conditional summary judgment of indemnification may be granted to the owner in advance of a determination that the elevator company was negligent. Ortiz v. Fifth Avenue Building Assoc., 251 AD2d 200 (1st Dept. 1998).
Ocean is entitled to conditional summary judgment against Nouveau. There is no evidence that Ocean had any notice of the defect, or any role in inspecting or maintaining the elevator that would give rise to constructive notice. Hence, Ocean is entitled to common law indemnification as its liability is vicarious only.
Ocean is not entitled to contractual indemnification because in the contract Nouveau agreed to indemnify Newmark and Battery Commercial Associates, LLC, not Ocean.
Newmark is entitled to dismissal of the complaint because there is no evidence that it exercised control over the elevators or had any notice of a malfunction. Hodges v. Royal Realty Corp., supra. However, as Nouveau agreed in the contract to indemnify Newmark for all liabilities caused by Nouveau's negligence, including attorneys fees and costs, Newmark is entitled to conditional summary judgment of indemnification for the attorneys' fees and costs it has incurred to date.
With respect to Douglas, the complaint is dismissed as there is no evidence that Douglas owned or managed the Building, or had any involvement with it. Accordingly, it is
ORDERED that the motion by Nouveau for summary judgment is denied in all respects; and it is further
ORDERED that the motion by Douglas, Newmark and Ocean for summary judgment dismissing the complaint is granted as to Douglas and Newmark and denied as to Ocean; and it is further
ORDERED that Nouveau's cross-claims against Ocean, Newmark and Douglas are hereby dismissed; and it is further
ORDERED that the motion by Douglas, Newmark and Ocean for summary judgment of indemnification against Nouveau is denied as moot with respect to Douglas; is granted conditionally as to Ocean on its first cross-claim against Nouveau; and is granted conditionally as to Newmark on its second cross-claim against Nouveau to the extent of its attorneys' fees and costs to date; and it is further
ORDERED that upon service upon him of a copy of this order with notice of entry, the Clerk is directed to enter judgment dismissing the complaint and all cross-claims by Nouveau as against Newmark and Douglas; dismissing all cross-claims by Nouveau against Ocean; dismissing Ocean's second cross-claim against Nouveau; and to sever the remainder of the action, which shall continue.