Opinion
112505/08.
Decided July 12, 2010.
KRAMER POLLACK, LLP, MINEOLA, NEW YORK, ATTORNEY FOR THE PLAINTIFF.
EDWARD GARFINKEL, BROOKLYN, NY, QUIRK BAKALOR, NEW YORK, NEW YORK, GOTTLIEB SIEGEL SCHWARTZ, BRONX, NEW YORK, ATTORNEY FOR THE DEFENDANTS.
This is an action by plaintiff, Anna Reynoso ("Reynoso"), to recover monetary damages for the personal injuries she allegedly sustained as a result of defendants' negligence. Caroline Apartments Preservation, L.P., The Caroline Apts. Co. (collectively "Caroline Apt") and Pan Am Equities ("Pan Am") are owner and managing agent, respectively, of the building located at 210 Sherman Avenue, New York, New York (the "Building"). McGlynn, Hays Co., Inc. ("McGlynn") was hired to provide elevator maintenance services in the Building pursuant to a written contract between Pan Am and McGlynn.
Caroline Apt and Pan Am, who are jointly represented, have answered the complaint and have asserted various cross-claims against McGlynn. Caroline Apt and Pan Am now move, pursuant to CPLR § 3212, for summary judgment dismissing the complaint against them. McGlynn answered the complaint, asserted a cross-claim against Caroline Apt and Pan Am, and opposes the motion for summary judgment in its entirety.
Issue has been joined and discovery is complete. The Note of Issue was filed December 21, 2009. These motions were brought timely (within 120 days of the note of issue being filed), therefore they will be decided on the merits. CPLR § 3212; Brill v. City of New York , 2 NY3d 648 (2d Dept. 2004). The court's decision and order is as follows:
Arguments
Plaintiff claims that on May 30, 2006 ("date of the accident"), at approximately 9:00 a.m., as she stepped into the 11th floor, north elevator in her Building, she slipped and fell because the elevator was approximately one foot lower than floor level. Caroline Apt and Pan Am contend, inter alia, that the plaintiff cannot establish her prima facie case because there is no evidence that Caroline Apt and Pan Am either created or had notice of the dangerous condition alleged to have existed on the date of the accident. Caroline Apt and Pan Am also argue that even if a dangerous condition existed, it was so obvious that any reasonable person would have avoided it. According to Caroline Apt and Pan Am, McGlynn is responsible for fully servicing the elevators and McGlynn has a contractual obligation to indemnify and hold them harmless.
Pan Am entered into a "Full Service Elevator Maintenance Contract" on March 10, 2005 ("service agreement") with McGlynn that was in effect on the date of the accident. The service agreement requires that McGlynn "use all reasonable care to keep the elevators in proper adjustment and in safe operating condition." According to the service agreement, McGlynn is responsible for:
1.01 . . . monthly examinations, adjustments, cleaning and lubrication of all machinery, machinery spaces, hoistways and pits. . .
1.02 The Contractor shall maintain all parts of the elevators consisting of, but not limited to, machine, motor, . . . resistance for operating and motor circuits, magnet frames, leveling devices. . . .
. . .
1.11 . . . Floor stop leveling accuracy must be maintained within ½ inch sill to sill at all times regardless of load or other operating factors.
. . .
1.19 Repairs, renewals, and replacements shall be made by the Contractor as soon as conditions warrant or other examinations reveal the necessity therefore, or when the Owner so advises the Contractor under the terms of this Contract. However, due to the age and extent of wear apparent on certain components, the following items will be excluded under the terms of this agreement and [w]ill only be replaced/repaired upon the written approval of owner.
J. The following items of elevator equipment are excluded: car enclosure (including removable panels, suspended ceiling, light diffusers, etc.), car doors, hoistway enclosures, hoistway doors, door frames and sills, fluorescent light tubes, car frame and shaftway structures, below ground and buried piping.
Discovery has been completed. Plaintiff served a Verified Bill of Particulars dated June 2, 2009. The following individuals were deposed: Plaintiff; Miguel Hernandez ("Hernandez" or "super") — non-party superintendent of the Building; Andy Reynoso — property manager for Pan Am; John Buvis ("Buvis") — non-party elevator mechanic for McGlynn; Robert Johnston ("Johnston") — non-party service manager for McGlynn; and Jose Rios ("Rios") — non-party porter at the Building.
Sometimes spelled Bovis.
Plaintiff testified at her deposition that on the date of the accident, she "pressed the elevator, and I press and I go in and I fall because it was like a foot down approximately, like a foot down, so I fell to the right." Prior to the accident, plaintiff stated the elevator was "off for two days" because it could not be repaired over the holiday weekend. Plaintiff testified that, on the date of the accident, at approximately 7:30/8:00 a.m., she was on the first floor of the Building doing laundry, when she ran into an elevator repair man, who told her that the elevator was now working. Plaintiff stated, however, that while heading back to the 11th floor, "the elevator was shaking and I called the super . . . [and] he said [the repair man] is still here, so let me tell him the elevator is shaking." Plaintiff stated that she, thereafter, went to her apartment and got ready for work. The accident happened at approximately 9:00 a.m., as plaintiff boarded the same elevator to leave the Building. According to plaintiff, no one else saw her fall and after she fell, she notified Hernandez about what had happened.
Hernandez testified at his deposition that in the five months preceding the accident, he notified McGlynn "five or six times" that elevator repairs were needed. Hernandez stated that he himself had noticed the elevator was mis-leveled by two inches and that this had happened on approximately four different occasions. Hernandez also stated, however, that he had not received any complaints by tenants about that problem. When asked what he did when he noticed the mis-leveling, Hernandez responded that "I called the company, I took the elevator to the basement and I put the key so it won't turn on. I shut off the lights and I called the company . . ." referring to McGlynn. Hernandez also stated that after plaintiff told him about her accident, he filed an accident report with Pan Am the following morning and called to have McGlynn look at the elevator. Hernandez testified that no one from McGlynn told him that the elevators needed to be replaced, although they did say "that the computers needed to be changed." Hernandez says he told McGlynn's people they needed to "speak to the administration." Hernandez also testified that plaintiff told him "she fell on the hall when she was coming out of the elevator. And she said that a neighbor had seen her when she fell on the floor."
Andy Reynoso testified at his deposition that, as senior property manager for Pan Am, he supervises the manager of the Building and "take[s] care of tenant complaints." Andy Reynoso stated that he would go to the Building once a month for the purpose of inspecting the Building, including the elevators, "I would check the building. And if there is something, I would tell Miguel [Hernandez] what to do and what not to do." Andy Reynoso stated that no one from McGlynn nor other Pan Am employees have ever notified him that the elevators needed to be replaced and that he never received any written complaints regarding mis-leveling of the elevators. Andy Reynoso testified that employees of Pan Am were not permitted to repair the elevators and that Pan Am was billed by McGlynn for its services on a monthly basis. Andy Reynoso stated that the porter was instructed to notify the super if the porter noticed a problem with the elevator, and the super was supposed to, in turn, contact the elevator company to get the problem fixed. Andy Reynoso testified that, at the time of the accident, Hernandez was employed by Pan Am and his duties as super were "to supervise the employees and take care of the building basically;" Hernandez was to "call any company that he might call for repairs, things like that." Andy Reynoso testified that the Building was built in 1980 and the elevators were last modernized in 1991 or 1992.
Buvis testified at his deposition that McGlynn had a full service elevator contract at the Building and that Hernandez and "any of the other service guys" at the Building never did any work on the elevators, "they were told actually by . . . the managing agent you don't touch anything on the elevator." He stated that the elevators used in the Building were made by Economic Elevator and that "[i]t was cheap and it would look like somebody made it in the basement . . . everything used was like old parts. Like they used parts that were — — no other elevator company would install." Buvis stated that he went to the building for an inspection once a month, for approximately four years.
According to Buvis, the proper leveling of the elevator was something that he was required to do pursuant to the service agreement. Buvis stated that he made recommendations to McGlynn about replacing the elevators "numerous times . . . [b]ecause the elevator controller had been neglected for years. They were falling apart." Buvis stated that he is not aware of any proposals ever having been provided to the Building about replacing the elevator.
Buvis also stated that during the four years he worked in the Building, there were approximately three or four mis-leveling issues. Buvis testified that usually the clutch prevents the doors from opening when the car is not level and that when the elevator is not level, there is no signal being sent to the control box to open the doors. Buvis stated that it is possible, however, for the doors to open even if the car is mis-leveled by as much as "an inch, three quarters of an inch" but the doors opening if there is a mis-leveling greater than that is "virtually impossibl[e]." Buvis stated that during the years he serviced the elevator, he cannot recall ever observing a mis-leveled elevator in the Building and that his records show there were no complaints regarding mis-leveling prior to the date of the accident.
Rios testified at his deposition that he is one of the porter's responsible for cleaning the elevators in the Building. Rios stated that "on occasions," he noticed that the doors opened although the elevator was not level with the floor. When that happened, "the elevator would be taken out of service, "and the super would be told . . . we always told the super whenever there was any defect."
McGlynn also provides the sworn affidavit of Gerard Carlucci ("Carlucci"), President of McGlynn. Carlucci stated that "prior to Plaintiff's alleged incident, I had several conversations with the Building's management (Pan Am Equities) regarding the need to have the elevators at 210 Sherman Avenue upgraded to provide more reliable service. I was advised that the building was in the process of being sold and the owner did not want to spend the money to upgrade the elevator at that time." Carlucci also stated that "the Plaintiff's version of the incident is a physical impossibility . . . [t]he clutch can not open the doors when the elevator is that far from the floor as it is not long enough to reach the release roller."
Discussion Summary Judgment — Burden of Proof
The movant on a summary judgment motion has the initial burden of proving entitlement to summary judgment, by tender of evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case. Zuckerman v. City of New York, 49 NY2d 557, 562 (1st Dept. 1980); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1st Dept. 1985). It is only when the proponent of the motion makes a prima facie showing of entitlement to summary judgment does the burden then shift to the party opposing the motion who must then demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action. Zuckerman v. City of New York, supra at 562. Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue of fact or where the factual issue is arguable or debatable. International Customs Assoc., Inc. v. Bristol-Meyers Squibb Co., 233 AD2d 161, 162 (1st Dept. 1996). Moreover, the court cannot resolve issues of credibility, as it is for the jury to weigh the evidence and draw legitimate inferences therefrom. S.J. Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338 (1st Dept. 1974).
Negligence
It is black letter law that a landowner or possessor has a duty to maintain its property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party. Perez v. Bronx Park South, 285 AD2d 402 (1st Dept. 2001). This common law duty is tempered by a requirement that a plaintiff seeking recovery must establish that the possessor of land had actual or constructive notice of the hazardous condition which precipitated the injury. Pappalardo v. Health Racquet Club, 279 AD2d 134 (1st Dept. 2000). To constitute constructive notice, a defect must be visible and apparent, and it must have existed for a sufficient length of time prior to the accident for the owner to have discovered the defect and remedied it. Pappalardo, supra .
On this motion for summary judgment, Caroline Apt and Pan Am have the burden of proving their defenses. Thus, Caroline Apt and Pan Am must prove that they did not create the dangerous condition alleged nor did they have a sufficient opportunity, within the exercise of reasonable care, to remedy the situation ( see Gordon v. American Mus. of Nat. Hist., 67 NY2d 836; Lewis v. Metropolitan Transp. Auth., 99 AD2d 246 aff'd 64 NY2d 670; Mercer v. City of New York, 223 AD2d 688, 689 aff'd 88 NY2d 955). Prior notice is not required where a party creates the dangerous condition alleged. See Hepburn v. Croce, 295 AD2d 475 (2d Dept. 2002).
Caroline Apt and Pan Am have not established lack of notice. According to Hernandez, he himself, an employee of Pan Am, noticed that the elevator was mis-leveled on approximately four different occasions. Buvis and Rios also testified that there were occasions when the doors opened and the elevator was not level with the floor. Additionally, Carlucci stated that he had "several conversations" with Pan Am regarding the need to replace the elevators in the Building. This is constructive, if not actual, notice of a dangerous condition.
Even if Caroline Apt and Pan Am did not have notice of a dangerous condition, there are disputed triable issues of material fact whether they exercised reasonable care in how they maintained the elevators and thereby created the condition. Although Caroline Apt and Pan Am are not insurers of plaintiff's safety while at the premises, a property owner or possessor may be liable if it has failed to properly maintain the premises for its anticipated use. Schmerz v. Salon, 26 AD2d 691 aff'd 19 NY2d 846 (1966). According to Buvis, the elevators were "cheap" and the controller was "falling apart." Hernandez testified that in the five months preceding the accident, there were "five or six times" that elevator repairs were needed. Additionally, the elevators had not been modernized since 1991 or 1992. Given the frequency of repairs and the age of the elevators, there are triable issues of fact whether Caroline Apt and Pan Am used reasonable care in maintaining the elevators.
Caroline Apt and Pan Am's alternative argument that, even if they had notice, there is no liability because plaintiff caused the accident, is rejected. There are issues of fact regarding how and in what manner plaintiff's injury occurred. Plaintiff testified that she fell while entering the elevator on the 11th floor, and no one saw her. Hernandez testified that he was told by plaintiff that she fell while exiting the elevator on the 11th floor and that there was a witness. There is also testimony that it would have been impossible for the doors of the elevator to open with a mis-leveling of one foot, as plaintiff had alleged.
As the moving parties, Caroline Apt and Pan Am have a greater burden to produce evidentiary facts than their adversary. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). By their very nature, negligence cases do not lend themselves to summary judgment because the issue of whether the defendant (or plaintiff) acted reasonably under the circumstances is rarely an issue that can be decided as a matter of law. Ugarriza v. Schmieder, 46 NY2d 471 (1979). Here, not only have Caroline Apt and Pan Am failed to met their burden of proof, but there are triable issues of fact requiring the denial of Caroline Apt and Pan Am's motion ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Rotuba Extrudes v. Ceppos, 46 NY2d 223). The determination of whether Caroline Apt and Pan Am were negligent is for the trier of fact to decide. Ugarriza v. Schmieder, supra .
With respect to McGlynn there is a factual dispute whether McGlynn assumed a duty of care to plaintiff under its service agreement with Pan Am. It is for the jury to decide whether McGlynn's maintenance obligation was so "comprehensive and exclusive" that it could be considered to have assumed a duty to keep the elevator in a reasonably safe condition. Brooks v. Maintenance Service Resources, Inc. , 44 AD3d 887 , 889 (2nd Dept. 2007) ( citing Espinal v. Melville Snow Contrs., 98 NY2d 136, 141 (2002).
Indemnification
Generally, a party seeking contractual indemnification must "prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor." Cava Construction. Co., Inc. v. Gealtec Remodeling Corp. , 58 AD3d 660 (2d Dept. 2009). However, where a question of fact exists regarding negligence, a conditional order of summary judgment for contractual indemnification must be denied as premature and where there are triable issues of fact as to whose negligence, if any, caused the plaintiff's accident, it is premature to conditionally grant a motion for summary judgment on that cause of action. Bellefleur v. Newark Beth Israel Medical Center , 66 AD3d 807 (2d Dept. 2009).
Here, the service agreement entitles Caroline Apt and Pan Am to contractual indemnification, however, their motion for summary judgment, on this ground, is premature. The service agreement provides that Caroline Apt and Pan Am are not entitled to receive contractual indemnification if they are found to be negligent.
The issue of whether Caroline Apt and Pan Am were negligent still remains to be decided at trial. Until then, the indemnification provision found in the service agreement is not triggered. Therefore, Caroline Apt and Pan Am's motion for summary judgment on its claim for contractual indemnification is denied; as it's motion for summary judgment against Plaintiff dismissing the complaint.
Since the note of issue was filed, this case is ready to be tried. Plaintiff shall serve a copy of this decision and order on the Clerk in Trial Support so that the case may be scheduled for trial.
Conclusion
Caroline Apt and Pan Am's motion for summary judgment is denied as it has not tendered sufficient evidence to eliminate any material issues of fact from the case. Since the note of issue has been filed, this case is ready to be tried. Plaintiff shall serve the Office of Trial Support with a copy of this decision and order so the case may be scheduled for trial. Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.
This constitutes the decision and order of the court.