Opinion
INDEX 155790/2017
01-04-2022
NAZE SPATA and ILIR SPATA, Plaintiffs, v. GPT PROPERTY TRUST LP, RMR GROUP, INC., THE RMR GROUP, LLC, THYSSENKRUPP ELEVATOR CORPORATION, Defendants.
Dominic S. Curcio, Esq. Quirk and Bakalor, PC Attorneys for Defendants GPT Properties Trust, RMR Group Inc. and The RMR Group LLC (GPTIRMR) Via NYSCEF Bruce M. Young, Esq. Attorney for Defendant TKE Via NYSCEF David Jaroslawicz, Esq. Attorney for Plaintiffs Via NYSCEF
Unpublished Opinion
MOTION DATE: 10/0112021
Dominic S. Curcio, Esq.
Quirk and Bakalor, PC
Attorneys for Defendants
GPT Properties Trust, RMR Group Inc.
and The RMR Group LLC (GPTIRMR)
Via NYSCEF
Bruce M. Young, Esq.
Attorney for Defendant TKE
Via NYSCEF
David Jaroslawicz, Esq.
Attorney for Plaintiffs
Via NYSCEF
DECISION AND ORDER ON MOTION
HON. LEWIS J. LUBELL, J.S.C
Defendant owners GPT PROPERTIES TRUST (hereinafter "GPT"), and property . manager RMR GROUP, INC and THE RMR GROUP LLC (together as "RMR") (collectively S "GPTIRMR") move for summary judgment pursuant to CPLR 3212 granting full and complete' contractual indemnity and/or common law indemnity as against or alternatively granting . ., conditional contractual indemnity as against co-defendant THYSSENKRUPP ELEVATOR CORPORATION (hereinafter "TKE"); and dismissing all of the plaintiffs claims and all of TKE's cross-claims (Mot. Seq. No.2.. Plaintiffs and TKE oppose the motion. .
The following papers Hied on NYSCEF were read on the motion:
Doc. Nos.
Notice of Motion, Affirmation, Affidavit
62-64
Exhibit A through P
65-80
Memorandum of Law in Support
Affirmation, Affidavit in Opposition
83, 84
Response to Statement of Material Facts
Expert Affidavit . .
Memorandum of Law in Opposition
Exhibits Q through X
88-95
Affidavit in Opposition
Exhibits A through C
97-99
Affirmation in Reply
Transcript of Proceedings (oral argument)
FACTUAL BACKGROUND
By way of background, plaintiffs commenced this action to recover damages for personal injuries allegedly sustained on November 9, 2016 while plaintiff Naze Spata ("plaintiff) was working during the course of her employment as an office cleaning person for a non-party. Shortly after midnight on that date plaintiff was involved in an accident occurring in an elevator designated as elevator "D" in a 17 story commercial building located at 305 E. 46th Street, New: York, NY. Specifically, plaintiff alleges that after pressing the button within the car for the seventh floor, the elevator car accelerated upward at an abnormal rate of speed before reversing and dropping back to the sixth floor where it stopped abruptly after shaking and bouncing. As a result, plaintiff alleges she was caused to strike various portions of her body against the inside-walls of the elevator and against a garbage bin present in the elevator.
The building was owned by GPT, managed by RMR and was occupied by a single tenant, The United Nations. TKE is an elevator service contractor who, at the time of the alleged accident, was in contract with GPT/RMR as a full-service elevator maintenance and repair contractor for the premises. GPTIRMR interposed an answer to the verified complaint denying, any liability for plaintiffs injuries and cross-claimed against TKE for indemnification. GPT/RMR alleges that, because GPT/RMR contracted with TKE for an exclusive full service elevator maintenance and repair agreement for the elevators at the premises; and that given the' fact that GPT/RMR never failed to notify TKE of a known defect, was not responsible for creating those alleged defects, and always shutdown any elevator upon the manifestation of any irregularities in its operation and contacted TKE as soon as possible, GPT/RMR is entitled to be indemnified by TKE.
Upon the foregoing papers, the Decision and Order of the Court is as follows: .
ANALYSIS
On a motion for summary judgment, the court is to determine whether triable issues of fact exist or whether judgment can be granted to a party on the proof submitted as a matter of law (see Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The movant must set forth a prima facie, showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hospita,, 68 N.Y.2d 320, 324 [1986]). Movants cannot succeed merely by pointing to gaps in another party's proof; they must affirmatively demonstrate the absence of triable issues of fact (see Alvarez v 21st ] Century Renovations Ltd, 66 A.D.3d 524 [1st Dept 2009]); Incorporated Village of Freeport v Freeport Excursions, LLC, 263 A.D.2d 445 [2d Dept 1999]).
Summary Judgment Regarding Plaintiffs' Claims
Property owners owe a duty to persons on their premises to maintain them in a reasonably safe condition (see Nunez v Chase Manhattan Bank, 155 A.D.3d 641 [2d Dept 2017]; N.Y. Multi. Dwell. Law 78). This duty is non-delegable and a party injured by the owners failure to fulfill it may recover from the owner even though the responsibility for maintenance has been transferred to another (see Rogers v Dorchester Assoc, 32 N.Y.2d 553). Notwithstanding, GPTIRMR argue, that plaintiff must prove not only that a defective condition existed and was a proximate cause 6f her injuries, but also that the property owner either created the defective condition or had actual or constructive notice of its existence. GPT/RMR claim they neither created nor had actual or constructive notice of the over-speeding or abrupt stopping defects that plaintiff is alleging caused her injuries. This position is misguided. An Account History Report and testimony of a representative from TKE records a callback to the building regarding the subject elevator just 12 hours before plaintiffs accident. Although the description of the service does not indicate specifically that the problem was over-speeding or abrupt stopping but a "Unit stuck on fire ' phase I. Car door would not close," it would belie common sense to conclude that the defendants were not on notice that there was an issue with the operation of the elevator, notwithstanding the wording of the report and the fact that the report indicates that the issue was "resolved"" In addition, evidence has been submitted demonstrating that there had been two reports in 2016 prior to the accident where a safety system in elevator known as a rope gripper tripped and had to be reset. It is a question for the finder of fact to determine whether this condition was a cause of the accident herein and whether GPT/RMR were aware or should have been aware of the deficiencies of TKE in performing its contractually obligated services as well as having notice of the ongoing problems with the elevator. Moreover, it is "a long established jurisprudence recognizing that elevator malfunctions do not occur in the absence of negligence" (see Ezzard v One East River Place Realty Co., LLC, 129 A.D.3d 159, 165 [1st Dept 2015]). If GPT/RMR had actual or constructive notice of a defective condition, it remains liable to plaintiff by virtue of its non-delegable duty, regardless of whether or not it has a pass-through to TKE (see Camaj v East 52nd Partners, 2 15 A.D.2d 150, 151 ). The fact that the owner may have contracted responsibility for maintenance to another entity does not relieve a plaintiff of the owners actual or constructive notice of the alleged defective condition and failure to remedy (see Camaj v East 52nd Partners, supra.). Therefore GPT/RMR has the initial burden of demonstrating that it did not create the condition or have actual or constructive notice of it (see Ceron v Yeshiva Univ., 126 A.D.3d 630 [1st Dept 2015]).
Based upon the deposition testimony and the documentary evidence of malfunctions of the subject elevator prior to plaintiffs accident, there are triable issues of fact as to GPT/RMR notice of a defective condition sufficient to defeat a motion for summary judgment. For example, the Account History Report reflects a total office entries under the preventive maintenance section concerning elevator D (Ex. N). According to the testimony of David McLaughlin, TKE's elevator adjuster, the bulk of the entries in reality related to call-backs concerning a complaint and not for preventive maintenance (Ex. E, pages 117-119). Further, the Account History Report indicates that there is a gap of a five month period where no preventative maintenance entries are logged for elevator D. There is no dispute that a failure to adhere to a maintenance program violates New York's Administrative Code. Initially, a question of fact exists as to whether the gap in preventative maintenance violates both the contractual obligation of TKE and industry standards and second, a question of fact exists as to whether GPT/RMR, as owner, was negligent in ensuring compliance with the terms of the contract between the parties. The court notes that GPT/RMR's argument that TKE's negligence as a result of its alleged breach of contract with GPT/RMR regarding failure to comply with safety check requirements ignores the fact that GPT/RMR was a party to the contract and ignores its own possible negligence by failing to take measures to force compliance with the contract.
In conclusion, GPT/RMR do not make a prima facie case for summary judgment. Accordingly, GPT/ RMR's motion for summary judgment to dismiss plaintiffs' claims is denied
Indemnification
a) Contractual Indemnity
The party seeking contractual indemnification must establish that it was not negligent and that the indemnification provision applies (see Trawally v City of New York, 137 A.D.3d 492, 493 [1st Dept 2016]). The right to contractual indemnification depends upon the specific language of the contract (see Trawally, supra.). Here, pursuant to the relevant wording of the contract, TKE agreed, inter alia, to indemnify RMR for injuries to third parties which arose out of TKE's maintenance of the elevator, excluding RMR's negligence (emphasis added). The .. contract states that "Contractor shall hold harmless and indemnify Purchase,, the owner of each Property .. . from and against all loss or liability, demands, judgment, expenses . . . arising out of . any a~t or omission of Contractor . . . provided that no Indemnity (sic) shall be indemnified hereunder against liability for its own negligence or intentional misconduct" (Exhibit J). Accordingly, in order to demonstrate entitlement to summary judgment on the basis of contractual indemnity, GPT/RMR would have to completely eliminate any potential negligence in bringing about and/or causing plaintiffs injuries (see Correia v Professional Data Mgmt, Inc., 259 A.D.2d 60, 65 [1st Dept 1999]). .
In addition to the facts the court discusses above with regard to the motion to dismiss the ;plaintiffs claim, there is a question of fact whether GPT/RMR retained exclusive control over' the elevator in this case and whether GPT/RMRss resident engineer, who worked in the building full-time and rode the elevators daily to check for issues with the operation of the elevators, ' . observed any issues prior to the accident. Further, GPT/RMR fails to demonstrate that GPT/RMR did not create and had no actual or constructive notice of the over-speeding or abrupt stopping conditions alleged by the plaintiff.
At 1 a.m. on November 8, 2016, on a callback the Account History Report references a' mechanic being present to respond to another shutdown on the sixth floor with doors open, base:d upon a second call by Gaston. It indicates that the mechanic was unable to gain access to the; elevator when he arrived at 1 a.m. When he went to the building some II hours later, McLaughlin did not review the service ticket of the other mechanic, did not make any effort to speak to him, and did not know he had been there (Ex. E at pages 77-78). Moreover, there is no dispute that a series of TKE service tickets totaling 33 pages and covering a time frame from December 3, 2015 through December 8, 2016 are concerned with elevator D.
The court notes TKE's objection to the admissibility of records from outside the November 18, 2015 through November 9, 2016 time frame.
GPT/RMR has failed to demonstrate entitlement to summary judgment. There are questions of fact concerning RMR's culpability for the happening of the accident and plaintiffs injuries, notice of the defects alleged, whether the elevator may have been restored prematurely, to service after it was shut down, and RMR's obligations as Purchaser under the contract with TKE (see Friedman v Pesach, 160 A.D.2d 460 [1st Dept 1990]; Incorporated Village of Freeport v Freeport Excursions, LLC, 263 A.D.2d 445 [2d Dept 1999]). Moreover, GPT/RMR has not demonstrated sufficiently that it did not have actual or constructive notice about the elevator's .. condition or where despite having an exclusive maintenance and repair contract with TKE, it failed to notify the company as soon as reasonably possible any condition that may indicate the need for maintenance or repair (Exhibit J).
b) Common Law Indemnity
The party seeking common law indemnity must prove not only that it was not guilty of any negligence but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law" (see Correia v Professional Data Mgmt, Inc. 259 A.D.2d 60, 65 [1st Dept 1999]).
Here, RMR has demonstrated that TKE was retained to handle exclusively all maintenance on the elevator. RMR argues that it had the right under the maintenance contract, to look to TKE to perform their entire duty to plaintiff. RMR further argues that for this alleged breach of duty to plaintiff and the resulting liability of the owner and manager, TKE should be and is liable for the full amount. Additionally, RMR argues that since NYC Administrative Code Section 28-304.7 requires all owners of passenger elevators have a contract with an approved agency to. perform elevator repair work and maintenance it is only equitable that as long as they do not create the defect alleged or fail to notify the elevator company of a known defect they should be entitled to common-law indemnity from the contractor. As noted above, it is a question of fact for a jury to determine whether GPT/RMR failed to notify TKE of a known defect, or had actual or constructive notice of the specific over-speeding or abrupt stopping defects alleged, was responsible for creating those alleged defects and shutdown the elevator upon the manifestation of any irregularities in its operation and contacted TKE as soon as possible. For the foregoing reasons, GPT/RMR are not entitled to summary judgment to common-law indemnity from TKE.
c) Conditional Indemnity
Based upon the discussion as set forth above, the court finds there are questions of fact concerning the culpability of GPT/RMR and therefore, GPT's motion seeking conditional indemnity is referred to the trier of fact.
Based upon the foregoing it is hereby
ORDERED that branch of the motion of GPT/RMR for summary judgment granting full and complete contractual indemnity and/or common law indemnity and/or conditional indemnity as against co-defendant TKE is denied; and it is further
ORDERED that branch of the motion of GPT/RMR for summary judgment dismissing all of the plaintiffs claims and all of TKEss cross-claims asserted against GPT/RMR is denied.
This constitutes the Decision and Order of the court.