Opinion
44151/07.
Decided February 9, 2011.
The plaintiff was represented by: Williston Park, NY.
The defendants were represented by: Thomas Torto, Esq., New York, NY.
The following papers numbered 1 to 9 read on these motions and this cross motion:
Papers Numbered
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2, 3-5, 6-7 Opposing Affidavits (Affirmations) 8,9 Reply Affidavits (Affirmations) 10,11 Affidavit (Affirmation)Other Papers
Upon the foregoing papers, Montgomery Realty Associates LLC., (Montgomery) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint, or in the alternative, conditional summary judgment on its cross claim for contractual and/or common law indemnification as against defendant Precision Elevator Corp., (Precision). Precision moves for an order, pursuant to the same statute, granting summary judgment dismissing plaintiff's complaint and Montgomery's cross claims.
Background
The record reveals that plaintiff Bronwynn Oliver was a resident of a fourth floor apartment located at 947 Montgomery Street in Brooklyn. The premises had an elevator to access the upper floors. The elevator consisted of an outer manual swinging door that is opened from the outside by a handle, and an automatic inner sliding cab door, that closes from right to left when facing the door from inside the cab. On September 19, 2007, at approximately 11:20 A. M., plaintiff entered the elevator on the lobby floor intending to visit a neighbor on the fifth floor. Plaintiff was speaking on her cell phone as she entered the elevator. She testified at her deposition, that once inside, she pressed the fifth floor button. However, the outer door did not fully close thus preventing the automatic inner door from sliding closed. Plaintiff stated that she then reached up to the top corner of the outer manual door, stuck her fingers inside an opening, and pulled a small latch to close the outer door. Plaintiff testified that, after she had taken her finger out of the latch and was in the process of bringing her hand down, the inner sliding door closed on her hand causing her to sustain injury. She testified that approximately one minute had elapsed between when she reached into the latch and the inner door closed and when she struck her hand. Plaintiff stated that following the incident she sought medical attention and that when she returned home, she notified building superintendent, Victor Sosa, about what had happened. She further testified that she had informed Sosa approximately two months prior to this incident that the outer door sometimes had difficulty fully closing.
Montgomery is the owner of the premises and Hager Management (Hager) is the property manager for the premises. Hager entered into a full service maintenance agreement with Precision. Precision is the entity responsible for performing inspections and maintenance of the subject elevator.
Montgomery's Motion
Montgomery seeks summary judgment dismissing plaintiff's claims.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues ( Kolivas v Kirchoff , 14 AD3d 493; see also Andre v Pomeroy, 35 NY2d 361, 364). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967; Zuckerman v City of New York, 49 NY2d 557, 562), and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact ( Alvarez v Prospect Hosp., 68 NY2d 320, 324, citing Zuckerman, 49 NY2d at 562).
Montgomery avers that it had no notice of the elevator defect alleged to have caused plaintiff's injury. Montgomery asserts that, at best, plaintiff has alleged that she made a prior complaint to Sosa regarding the outer elevator door not closing properly but the record reveals that no complaints were lodged regarding the speed or force of the inner door closing. Montgomery points out that plaintiff is claiming that the instrumentality of her injury was the inner sliding door closing on her hand with too much force. Montgomery argues that plaintiff was only exposed to this hazard as a result of her own intervening act of pulling the outer door closed by inserting her fingers in a latch that was not meant to be used in that manner. Montgomery claims that when the outer door failed to closed, plaintiff was in no danger and was merely inconvenienced. It contends that she could have exited the elevator and told the superintendent about the problem, but instead chose to attempt to pull the door closed while speaking on a cell phone in a distracted manner.
In order to prove a prima facie case of negligence, a plaintiff must establish: (1) the existence of a duty on the part of the defendant to the plaintiff; (2) a breach of that duty; and (3) injury suffered as a result of that breach ( Solomon v City of New York, 66 NY2d 1026).
It is well settled that a property owner owes a nondelegable duty to elevator passengers to maintain its buildings' elevators in a reasonably safe manner ( Dykes v Starrett City, Inc. , 74 AD3d 1015 ; see Rogers, 32 NY2d at 559; Ortiz v Fifth Ave. Bldg. Assocs., 251 AD2d 200; O'Neill v Mildac Props., 162 AD2d 441). To establish that a building owner is liable for an elevator-related injury, a plaintiff must establish that there was a defect in the elevator, and that the building owner had actual or constructive notice of the defect ( see Lee, 40 AD3d at 1048). Even if the owners hire an elevator maintenance company to maintain the elevator, liability can be found against the owners if they received notice of a defect and failed to notify the elevator company about it ( Cilinger, 77 AD3d at 882-883; see Oxenfeldt v 22 N. Forest Ave. Corp. , 30 AD3d 391 , 391-392 []).
Here, Sosa testified that he did not recall receiving any complaints regarding the subject elevator prior to plaintiff's incident. However, he did testify that when he received an elevator related complaint he would notify Precision. Indeed, the records submitted by Precision indicate that the outer door of the subject elevator was fixed on May 15, 2007, some four months prior to plaintiff's accident and that there were no further reports of problems with this elevator. Moreover, Montgomery points out that the force of the closing inner door is something that is measured and adjusted by Precision and there was no notice given to Montgomery of any problem with this inner door.
Montgomery further argues that plaintiff's intervening act of placing her hand in the outer elevator door latch to close it was the proximate cause of her injury. Where the evidence as to the cause of an accident that injured a plaintiff is undisputed, the question as to whether any act or omission of the defendant was the proximate cause of the accident is for the court and not the jury. "[T]he negligence complained of must have caused the occurrence of the accident from which the injuries flow" ( Rivera v City of New York, 11 NY2d 856, 857), and the law draws a distinction between a condition that merely sets the occasion for and facilitated an accident and an act that is a proximate cause of the accident ( D'Avilar v Folks Elec. Inc., 67 AD3d 42; see Lee v New York City Hous. Auth. , 25 AD3d 214 , 219 lv denied 6 NY3d 708).
In support of its contention that liability should not be imposed upon it because plaintiff's own actions were the proximate cause of her injuries, Montgomery points to the Court of Appeals holding in Egan v A.J. Constr. Corp., ( 94 NY2d 839, 841). In Egan, the court held that plaintiff's act of jumping out of an elevator that had stalled six feet above the lobby floor after the elevator's doors had been opened manually was not foreseeable in the normal course of events where plaintiff was not threatened by injury while inside the stalled elevator. Thus, the court found that plaintiff's jump superseded defendants' conduct and terminated defendants' liability for his injuries ( see Jackson v Greene, 201 NY 76, 79 [1911], rearg denied 202 NY 544; Boltax v Joy Day Camp, 67 NY2d 617). Similarly, in Meade v OTA Hotel Owner LP , ( 76 AD3d 470 ), a plaintiff stuck in a hotel elevator that had stalled between floors who tried to exit the elevator by sliding backwards and attempting to jump to the shaft way below, noting that there was no emergency, the court held that "the intervening, ill-advised and negligent actions of both plaintiff and the hotel employees were not foreseeable, in the ordinary course of events, as arising from a stalled elevator. Plaintiff's injuries arose from a superseding cause, severing any potential liability on the part of Ver-Tech." (citations omitted).
Here, the court finds that when the outer elevator door did not fully close, plaintiff was not in any kind of emergency or dangerous situation, necessitating her to take matters into her own hands, but instead, was merely inconvenienced by the fact that the outer door did not close promptly. Thus, her attempt to close the door by putting her hand into a latch that was not meant for that purpose was the proximate cause of her injury. The failure of the elevator door to properly close was a condition that merely set the occasion for or facilitated her accident.
Based upon the foregoing, that branch of Montgomery's motion seeking summary judgment dismissing plaintiff's complaint as asserted against Montgomery is granted and the remainder of its motion is deemed moot.
Precision's Motion
Precision moves for summary judgment dismissing plaintiff's complaint and the cross claims asserted by Montgomery as against Precision. Precision argues that plaintiff's complaint should be dismissed as against it as she has failed to set forth a prima facie case of negligence or demonstrate that Precision either created or had actual or constructive notice of the condition that caused plaintiff's injury. Moreover, Precision maintains it was plaintiff's own action of placing her hand in the way of the sliding door by pulling the outer door closed, which serves as an act that superseded defendant's conduct and thus terminated defendant's liability for any injuries she sustained
In support of its motion, Precision points to Sosa's testimony that following his conversation with plaintiff he reviewed a closed circuit video feed from a camera located inside the elevator which showed plaintiff speaking on her cell phone and making a small movement, and that he reported the incident to his supervisor. Sosa testified that he did not complete an incident report and did not speak to anyone at Precision concerning the incident, but, instead, checked the elevator himself following the alleged incident and found that it was operating normal. Additionally, Sosa testified at his deposition that he entered the elevator from the first floor approximately four times each day and he could not recall anyone complaining to him about the operation of the elevator or about the outer door not closing flush and that he himself had not encountered this problem.
Precision also points to the testimony of its witness, Pavel Rudnitsky, an elevator maintenance mechanic, who testified that he had performed monthly maintenance on the elevator for about a year prior to the incident including on September 11, 2007, eight days prior to the incident. He further testified that at that time, as part of his routine maintenance of the elevator, he inspected the elevator door check and the interlocking mechanism. Rudnitsky testified, and the maintenance records submitted, indicate that there was no defect or reported malfunction with the door check or interlock mechanism on the first floor outer elevator door within the two month period prior to the incident. In fact, the records submitted reveal that on May 30, 2007, a triangular door check was replaced on the outer door of the subject elevator. Rudnitsky testified that this door check is a unit which closes the outer door with slow speed and would be replaced when the outer door was not closing properly. He stated that as part of his monthly maintenance he would inspect the door check and visually determine that the door was closing at the proper speed. Additionally, he testified that there were no complaints or service calls pertaining to the speed of the sliding inner door within one year prior to the incident. Accordingly, Precision argues that plaintiff has failed to establish any actions on behalf of Precision which caused plaintiff's injury, nor has she established that Precision had notice of any malfunction concerning the operation of the elevator doors.
Here, Precision has tendered "evidentiary proof in admissible form" ( Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067) that it had no notice of nor did they create any defective condition in the subject elevator ( see Gordon v American Museum of Natural History, 67 NY2d 836; Santoni v Bertelsmann Prop. , 21 AD3d 712 , 713; Vaynshteyn v Cohen, 266 AD2d 280). With respect to lack of notice, Precision demonstrated, through competent evidence, including the deposition testimony of Sosa and Rudnitsky and the service call logs, that no other complaints, calls, shutdowns or problems regarding the subject elevator occurred for at least the two month period prior to her incident. Thus, Precision has demonstrated its prima facie entitlement to summary judgment as a matter of law ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The burden now shifts to plaintiff to demonstrate that an issue of fact exists necessitating the denial of summary judgment in Precision's favor.
Plaintiff argues that a question of fact exists regarding Precision's notice of the elevator problem. Specifically, plaintiff contends that "[a]n elevator company which agrees 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 Assoc., 32 NY2d 553, 559; Cilinger v Arditi Realty Corp. , 77 AD3d 880 , 882-883; see Hudson v Tower El. , 60 AD3d 906 , 907). While this is correct, in the instant case, plaintiff has failed to present evidence that there was a defective condition that Precision could have discovered through the exercise of reasonable care ( see Lee v City of New York , 40 AD3d 1048, 1049). Accordingly, the court finds that plaintiff has failed to raise a triable issue of fact in opposition ( see generally Zuckerman v City of New York, 49 NY2d 557, 562). Precision's motion for summary judgment is thereby granted in its entirety.
The foregoing constitutes the decision, order and judgment of the court.