Opinion
INDEX NO. 155485/2012
03-28-2019
PUI KUM NG LEE, as Executrix of the Estate of RAYMOND LEE, and PUI KUM NG LEE, Individually, Plaintiffs, v. CHATHAM GREEN, INC., CHATHAM GREEN MANAGEMENT CORP., GERARD J. PICASO, INC., TRANSEL ELEVATOR & ELECTRIC INC., Defendants.
NYSCEF DOC. NO. 317 MOTION DATE 01/09/2019 MOTION SEQ. NO. 011, 012
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 011) 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 275, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 312, 313 were read on this motion to/for SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 012) 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 276, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 306, 307, 308, 309, 310, 311, 314 were read on this motion to/for SUMMARY JUDGMENT. HON. KELLY O'NEILL LEVY:
Motion sequence numbers 011 and 012 are hereby consolidated for disposition.
This is a personal injury and wrongful death action resulting from a fall from an allegedly malfunctioning handicap lift.
Defendants Chatham Green, Inc., Chatham Green Management Corp., and Gerard J. Picaso, Inc. (collectively, hereinafter, Chatham Green) move (mot. seq. 011) for an order, pursuant to CPLR § 3212, granting summary judgment in their favor and dismissing the complaint and all cross-claims against them. Plaintiffs Pui Kum Ng Lee, as Executrix of the Estate of Raymond Lee and Pui Kum Ng Lee, Individually, (collectively, hereinafter, plaintiff) oppose.
Defendant Transel Elevator & Electric, Inc. (hereinafter, Transel) moves (mot. seq. 012) for an order, pursuant to CPLR § 3212, granting summary judgment in its favor and dismissing the complaint and all cross-claims against it. Plaintiff opposes.
BACKGROUND
On February 20, 2011, plaintiff Pui Kum Ng Lee's husband, Raymond Lee (hereinafter, the decedent), fell off a handicap lift (hereinafter, the lift) of a residential building located at 185 Park Row in Manhattan (hereinafter, the building). The building was owned, operated, and managed by Chatham Green.
Plaintiff Pui Kum Ng Lee testified that she was not a witness to the accident, but she did see the decedent laying on the ground after the accident [Deposition of Plaintiff, Part 1 (ex. H to the Desantis aff.) at 18]. She also saw the decedent's electric scooter (hereinafter, the scooter) on the ground next to him (id. at 20). She saw that the lift's door was opened (id. at 21). The decedent was going to a doctor's appointment with his cousin, Fang Mun Mar, who was with him in the lobby of the building at the time of the accident (id. at 22). Plaintiff recalled that after the accident the decedent looked like he was dead, and his mouth and nose were bleeding (id. at 28). She also recalled that the lift was sometimes out of service (id. at 47).
Fang Mun Mar, the decedent's cousin who had been accompanying him at the time of the accident, testified that he tried pressing the button to hail the lift, but it did not work, so he asked the security guard to come help [Deposition of Fang Mun Mar (ex. M to the Desantis aff.) at 9]. The security guard came over and helped, but he did not see what the security guard did to help (id. at 10, 35). When the lift eventually moved up to the decedent at the top, lobby level, Mr. Mar opened the lift door for the decedent to drive his scooter inside, and then Mr. Mar closed the lift door behind him (id. at 10, 14, 38). The decedent pressed the "down" button (id. at 10). When the lift was moving, at about halfway down, Mr. Mar saw that the top door of the lift had opened, and the decedent fell (id. at 10, 15, 52-53). The scooter was on top of the decedent on the floor (id. at 18).
Andy Bo, Chatham Green's security guard on duty at the time of the accident, testified that he did not witness the accident, but he heard a noise when it happened [Deposition of Andy Bo (ex. L to the Desantis aff.) at 18]. He recalled that there was a man waving his hands, so he left the security booth to go help (id. at 20-21). The lift was on the lower, street level, and the decedent was at the upper, lobby level at that point (id. at 22). Mr. Bo grabbed the door handle pushed the lift door shut at the lower, street level so that the lift could travel up to the decedent (id. at 21, 24). If the lift's door was not closed correctly, the lift would not be able to move up or down (id. at 23). After Mr. Bo closed the door, he asked Mr. Mar to press the button to hail the lift again, and then he went back to the security booth (id. at 27). He heard a very loud noise, and then ran back to the lift and saw the decedent on the ground with his head bleeding (id. at 29). He observed that the lift door was open, and the scooter had fallen over on top of decedent (id. at 30). He noticed that the lift was at the top, lobby level at the time of the accident (id.).
Davin Lee, plaintiff and the decedent's son, testified that the decedent had the scooter for 2 years prior to the accident [Deposition of Davin Lee (ex. I to the Desantis aff.) at 22]. He also stated that representatives of Chatham Green told him that the lift previously had issues (id. at 78).
Roland Snyders, the property manager, testified that Chatham Green, the owner of the building, hired Gerard J. Picaso, Inc. to manage the building [Deposition of Roland Snyders (ex. J to the Desantis aff.) at 10-11]. Chatham Green bought the lift from ThyssenKrupp about a year prior to the accident (id. at 22-24). Mr. Snyders testified that the decedent forced himself out of the lift's door when it reached the bottom, street level, and then he fell over (id. at 32). He stated that there were no complaints about the lift before the accident and Chatham Green was not aware of any problems with the lift (id. at 36, 57).
Carmella Granello, the President of the Board of Directors of the building, testified that on occasion, the lift would go out of service [Deposition of Carmella Granello (ex. K to the Desantis aff.) at 24]. When the lift would go out of service, the Chatham Green would get Transel to come repair the lift (id.). After the accident, the Board of Directors closed the lift until it was further inspected (id. at 37). Ms. Granello recalled that the decedent did not seem to have mastered the use of his scooter, as she remembered him driving it erratically (id. at 46-47).
Edward Buonarobo, a mechanic for Transel, testified that Transel performed routine maintenance at the building once a week, but the lift was not subject to the routine maintenance [Deposition of Edward Buonarobo (ex. F to the Desantis aff.) at 20-22]. He confirmed that there was no contract for the maintenance of the lift, but he would perform repair work on the lift on an as-needed basis if there was a problem (id. at 21). He also confirmed that he performed work on the lift on September 8, 2010, October 29, 2010, and after the accident on March 4, 2011, October 18, 2011, and November 8, 2011 (id. at 30, 35, 45-46, 53, 55). If there were issues with the lift, it would be shut off until the issues were addressed (id. at 50). Transel was not responsible for regularly maintaining the lift (id. at 51-52). If the contacts in the door mechanism were not connected and aligned, the lift should not work (id. at 56).
Michael Sena, a Qualified Elevator Inspector retained by Chatham Green, submitted an affidavit attesting that upon his site inspections, (1) the lift was properly installed and maintained, (2) Chatham Green did not have notice of faulty door locks, (3) the decedent's operation of the scooter was a significant factor in the accident, (4) the decedent drove the scooter into and through the lift's door, and (5) the impact to the bottom door caused temporary deformation of the bottom door and disabled the bottom door lock [Affidavit of Michael Sena (ex. E to the Desantis aff.)].
Mr. Sena bases this assertion on the testimony of Davin Lee and Carmella Granello, but the assertion that the decedent accelerated the scooter through the door of the lift is pure speculation, as there was no direct testimony supporting this assertion.
Patrick McPartland, a Professional Engineer and Certified Elevator Inspector retained by plaintiff, submitted an affidavit concluding that Chatham Green had notice of the dangerous condition of the lift and that the lift malfunction was a substantial factor in causing the accident [Affidavit of Patrick McPartland (ex. N to the Valvo aff.)].
Jon B. Halpern, a Professional Engineer retained by Transel, submitted an affidavit concluding that (1) the lift was properly designed and installed in compliance with all applicable codes and standards, (2) that the accident could only have occurred as a direct result of the decedent's application of power to the scooter causing him to accelerate into and through the lift's lower door and off the platform, and (3) that no failure to maintain, service, or repair the lift by Transel caused or contributed to the accident [Affidavit of Jon B. Halpern (ex. A to the Desantis aff. in reply) at ¶ 19].
The New York City Department of Buildings issued a violation of the Electrical Code of the City of New York on February 2, 2009 due to defective and exposed wiring for the lift [NYC DOB Violation (ex. M to the Valvo aff.)].
DISCUSSION
On a summary judgment motion, the moving party has the burden of offering sufficient evidence to make a prima facie showing that there is no triable material issue of fact. Jacobsen v. N.Y. City Health & Hosps. Corp., 22 N.Y.3d 824, 833 (2014). Once the movant makes that showing, the burden shifts to the non-moving party to establish, through evidentiary proof in admissible form, that material factual issues exist. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dep't 1997). The court's function on a motion for summary judgment is issue-finding, rather than making credibility determinations or factual findings. Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012). Chatham Green's Motion (mot. seq. 011)
Chatham Green moves for summary judgment in its favor and dismissal of all claims and cross-claims against it.
Generally, a landowner has a duty to maintain their property in a reasonably safe condition. Gronski v. County of Monroe, 18 N.Y.3d 374, 379 (2011) (internal citation omitted). Property owners have a duty to maintain and repair elevators on their premises, and thus can be found liable if they have actual or constructive notice of a defect in an elevator. Green v. City of New York, 76 A.D.3d 508, 508 (2d Dep't 2010) (internal citations omitted).
Chatham Green asserts that there is no evidence that it was negligent in causing the accident and that there is no basis for the contribution and common-law indemnification claims. Chatham Green further asserts that it had no notice, nor did it create the defective condition. It contends that plaintiff is engaging in sheer speculation as to the cause of the accident. Plaintiff asserts that there are several material and triable issues of fact with respect to whether Chatham Green had notice of or created the defective condition and whether its failure to maintain the lift caused the accident.
Here, the lift was not regularly inspected. The last documented maintenance and repair of the lift was conducted on October 28, 2010, approximately 4 months prior to the accident. There is also evidence that there were complaints and shutdowns regarding the lift prior to the accident. Ms. Granello testified that the lift would occasionally go out of service (Granello tr. at 24). Mr. Mar also testified that there were times when the lift was not working (Mar tr. at 24-25). In the contrary, Mr. Snyders testified that there were no complaints about the lift before the accident and Chatham Green was not aware of any problems with the lift (Snyders tr. at 36, 57). While expert Patrick McPartland concluded that Chatham Green had notice of the defective condition of the lift (McPartland aff.), expert Michael Sena noted that Chatham Green did not have notice of the defective condition of the lift (Sena aff.). At best, there is a material issue of fact as to whether Chatham Green had notice of a defect in the lift. This triable, material issue of fact precludes the granting of summary judgment and dismissal of the action as to Chatham Green.
Thus, the court denies Chatham Green's motion for summary judgment and dismissal of the complaint and all cross-claims against it. Transel's Motion (mot. seq. 012)
Transel moves for summary judgment and dismissal of the complaint and all cross-claims against it.
Transel asserts that it did not owe a duty of care to plaintiff or the decedent. Plaintiff asserts that there are issues of fact as to whether Transel caused the accident because of negligent maintenance, inspection, testing, and/or repair of the lift.
Generally, a contractual obligation alone will not give rise to tort liability in favor of a third party. Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 (2002). There are three situations where a contractual party may be said to have assumed a duty of care to third parties: "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, 'launche[s] a force or instrument of harm' (internal citation omitted); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (internal citation omitted) and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (internal citation omitted)." Id. at 140.
As a preliminary matter, Transel was not contractually obligated to service or maintain the lift. There was no executed contract between Transel and Chatham Green for the lift. Rather, Transel serviced the lift on an as-needed, time and materials basis. Thus, Transel was under no contractual duty from which a duty to plaintiff or the decedent might arise.
In Altinma v. East 72nd Garage Corp., where the plaintiff's decedent died after being pinned under a man-lift, the court held that the company that repaired the man-lift on an as-needed basis prior to the accident owed no duty of care to the decedent. Altinma v. East 72nd Garage Corp., 54 A.D.3d 978, 980 (2d Dep't 2008). Similarly, here, Transel repaired the lift on an as-needed basis, and thus did not owe a duty of care to plaintiff or the decedent. See also, Hernandez v. Pace El. Inc., 69 A.D.3d 493, 494-495 (1st Dep't 2010) (elevator service contractor did not owe the non-contracting third party a duty of care, as none of the Espinal exceptions applied). In Fernandez v. Otis El. Co., the court found that the elevator maintenance company which was subject to a contract and had performed extensive work on the elevator in question up to a week prior to the accident did not owe the plaintiff a duty of care. Fernandez v. Otis El. Co., 4 A.D.3d 69, 72-73 (1st Dep't 2004). Similarly, here, there is no evidence that Transel created or exacerbated any risk to the decedent by failing to adequately perform its obligations to Chatham Green, and thus Transel did not launch a force or instrument of harm. Therefore, the first Espinal exception is inapplicable.
The second Espinal exception, detrimental reliance, is premised upon the existence of a contract about which the noncontracting party has actual knowledge. Here, there is no contract, so this exception does not apply.
The third Espinal exception, where the contracting party has entirely displaced the other party's duty to maintain the premises safely, is also inapplicable here. Since there is no contract, there is no displacement of any duty to maintain the premises safely.
Thus, none of the Espinal exceptions apply, and Transel's relationship with Chatham Green based on its limited work on the lift does not give rise to a duty of care to plaintiff or the decedent. Since Transel does not owe plaintiff or the decedent a duty of care, it cannot be held liable for negligence.
Thus, the court grants Transel's motion for summary judgment and dismisses the complaint and all cross-claims against it.
The court has considered the remainder of the arguments and finds them to be without merit.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED, that defendants Chatham Green, Inc., Chatham Green Management Corp., and Gerard J. Picaso, Inc.'s motion (mot. seq. 011) for an order, pursuant to CPLR § 3212, granting summary judgment in their favor and dismissing the complaint and all cross-claims against them is denied; and it is further
ORDERED, that defendant Transel Elevator & Electric, Inc.'s motion (mot. seq. 012) for an order, pursuant to CPLR § 3212, granting summary judgment in its favor and dismissing the complaint and all cross-claims against it is granted; and it is further
ORDERED, that all claims and cross-claims against Transel Elevator & Electric, Inc. are hereby dismissed; and it is further
ORDERED, that the remainder of this action shall continue.
This constitutes the decision and order of the court. 3/28/19
DATE
/s/ _________
KELLY O'NEILL LEVY, J.S.C.