Opinion
No. 99 Civ. 4780 (LTS)(KNF)
March 29, 2002
GINSBERG BROOME, P.C., By: Robert M. Ginsberg, Esq., New York, N.Y., Attorneys for Plaintiff.
MONTFORT, HEALY, McGUIRE SALLEY, By: Susan H. Dempsey, Esq., Garden City New York; WADE CLARK MULCAHY, By: David F. Tavella, Esq., New York, N.Y.; BARRY, McTIERNAN MOORE, By: Suzanne M. Halbardier, Esq., New York, N.Y., Attorneys for Defendants.
OPINION AND ORDER
In this diversity case, Plaintiff Rose Stone asserts that she was injured by automatic doors in the entranceway of a Marriott Courtyard hotel because of Defendants' negligence. Defendants 866 3rd Next Generation Hotel LLC ("866") and Courtyard Management Corp. ("Courtyard") have moved for summary judgment dismissing Plaintiffs claims and the cross claims asserted by Defendants Jem Architectural Inc. ("JEM") and NT Dor-O-Matic New York, Inc. ("Dor-O-Matic"). Lehrer McGovern Bovis ("LMB") and JEM have moved for summary judgment dismissing Plaintiffs claims and the cross claims of 866, Courtyard and Dor-O-Matic. Dor-O-Matic has moved for summary judgment dismissing Plaintiffs claims and the cross claims of Defendants 866, Courtyard, JEM. Plaintiff Rose Stone has interposed a cross-motion for summary judgment. Defendants contend that there is no evidence that the automatic doors were defective and/or that they had no notice of any such defect, if there was one. Plaintiff argues that Defendants 866 and Courtyard are liable for Dor-O-Matic's negligence because they had a nondelegable duty under the New York City Administrative Code to maintain safe premises, and further argues that the doctrine of res ipsa loquitur can be invoked as a basis for holding liable Defendants 866 and Courtyard.
The Defendants' respective cross claims against each other assert claims for indemnification and contribution. Forest Electrical Corp. and ASR Electrical Contractors were discontinued from the case on or about December 18, 2000.
Defendants submitted statements pursuant to SDNY Local Rule 56.1. Plaintiff did not submit a Rule 56.1 Statement in connection with her cross-motion for summary judgment. Local Rule 56.1 provides that failure to submit a Rule 56.1 statement may constitute grounds for denial of the motion. The Court accordingly denies Plaintiffs cross-motion for failure to comply with Local Rule 56.1, but treats Plaintiffs crossmotion as Opposition to Defendants' motions for summary judgment.
The Court has considered thoroughly all submissions and arguments related to these motions and the decision rendered herein reflects such consideration. For the following reasons, the motions of Defendants 866 and Courtyard are granted in part and denied in part. The motion For summary judgment of Dor-O-Matic is denied and the motion of LMB and JEM is granted in part and denied in part.
FACTS
The following facts are undisputed except as otherwise noted. Courtyard operates a Marriott hotel (the "Hotel") at premises owned by 866. 866 and LMB had contracted to build the Hotel and further subcontracted with JEM to construct the entrance to the Hotel. JEM hired Dor-0-Matic to furnish the automatic door package for the Hotel entrance. The package consisted of two sets of automatic sliding doors; one exterior and one interior. The automatic doors are equipped with motion detectors, presence sensors and safety sensors designed to prevent the doors from closing on persons passing through the doors. The Hotel opened for business on or about November 6, 1998.
Dor-O-Matic did not have a service contract with the Hotel that required it to perform scheduled service upon the automatic doors. Dor-O-Matic provided maintenance and repair service upon the Hotel's request. Service reports from Dor-O-Matic indicate that the doors were repaired prior to the Hotel's opening in October of 1998. Subsequent to the Hotel's opening, Dor-O-Matic prepared a service report, dated January 4, 1999. which states that the front door was not opening or closing. Repairs were made the following day. On February 22, 1999, Dor-O-Matic responded to a service call indicating that the exterior doors were stuck open. Dor-O-Matic replaced sliders for both the exterior and interior doors at that time. April 21, 1999 and April 26, 1999, service reports indicate additional service to the exterior doors only.
Plaintiff contends that she was knocked down in the doorway of the Hotel on May 14, 1999, when the interior doors closed on her while she was entering the Hotel. A Dor-0-Matic service report dated May 15, 1999 indicates that the interior doors were working and that the safety mechanisms were working properly.
None of the service reports indicates a malfunction that would result in the doors closing prematurely. Between the date of the Hotel's opening and the date of Plaintiffs accident, there were no complaints that the automatic doors closed too quickly or that they had closed when a person was between the doors.
DISCUSSION
Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "moving party is entitled to judgment as a matter of law [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof"Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks and citations omitted). In deciding a summary judgment motion, a court should not resolve disputed issues of fact; rather, it simply must decide whether there is any genuine issue to be tried. Gallo v. Prudential Residential Services, Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994); Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-249 (1986).
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Legal Aid Society v. City of New York, 114 F. Supp.2d 204, 213 (S.D.N.Y. 2000). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962)); see also Gallo, 22 F.3d at 1223. With respect to the issues on which summary judgment is sought. if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party as to a material fact issue, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Plaintiff's Negligence Claims Against 866. Courtyard and Dor-O-Matic
Plaintiff alleges in her third amended complaint that she was injured when she was "precipitated to the ground while entering [the Hotel] by reason of a dangerous, defective and unsafe condition of the [Hotel] in general, and certain front doors in particular." Complaint ¶ 22. Plaintiff further alleges that her accident occurred "as a result of the negligence of the defendants." Id. ¶ 31. Plaintiff's pleadings and briefs in support of her cross-motion (which the Court treats as opposition to Defendants' motions for summary judgment) are not models of clarity. Looking at Plaintiff's pleadings and briefs together, however, it appears that Plaintiff asserts that Dor-O-Matic was negligent in maintaining and testing the automatic doors and that 866 and Courtyard are vicariously liable for Dor-O-Matic's negligence because 866 and Courtyard have a nondelegable duty to maintain the Hotel in a safe condition. Thus, the analysis as to whether Plaintiff has proffered sufficient evidence to sustain a claim for negligence is identical with respect to each of these Defendants.
Plaintiff moved to amend her complaint further seeking to assert claims for breach of warranty against certain of the Defendants. The Court denied the motion on April 17, ¶ 01. On or about May 17, 2001. Plaintiff filed a motion for reconsideration, which the Court denied by Order dated July 2, 2001. Thus. there are no breach of warranty claims asserted by Plaintiff in this case.
In a negligence action under New York law, a plaintiff must establish that: (i) the defendant owed the plaintiff a cognizable duty of care; (ii) the defendant breached that duty; and (iii) the plaintiff suffered damage as a proximate result of the breach. See Solomon v. City of New York, 499 N.Y.S.2d 392 (1985). As the owner or operators of the Hotel, Defendants 866 and Courtyard had a duty to maintain the Hotel in a "reasonably safe condition under the existing circumstances, which include the likelihood of injury to a third party, the potential that such an injury would be of a serious nature, and the burden of avoiding the risk." Mejia v. New York City Transit Authority, 737 N.Y.S.2d 350, 352 (1st Dep't 2002); Basso v. Miller, 386 N.Y.S.2d 564, 568 (1976). Defendant Dor-O-Matic had a duty to perform repairs and maintenance to automatic doors with due care. See e.g., Eaves Brooks Costume Co. Inc. v. Y.B.H. Realty Corp. et al., 557 N.Y.S.2d 286, 289 (1990) ("defendant has undertaken not just by his promises but by his deeds a legal duty to act with due care."). The foregoing duties, however, do "not in and of [themselves] fasten liability in the event of an accident due to a defect. It merely fixes the obligation the negligent performance of which gives rise to liability. It does not do away with the necessity for proving negligence." Buria v. Rosedale Engineering Corp., l 84 N.Y.S.2d 395, 397 (2d Dep't 1959). Notice of a defect is "essential . . . prerequisite to liability" particularly where the allegedly defective mechanism is in constant use. Id.
A federal court sitting in diversity applies the choice of law doctrines of the forum state; in tort actions. New York courts generally apply the law of the jurisdiction where the tort occurred. See Velez v. Sebco Laundry Sys., Inc., 178 F. Supp.2d 336, 339 (S.D.N.Y. 2001);Franklin v. Zeger Int'l. Inc., No. 96 CIV 2408, 1997 WL 691424, at *3 n.l (S.D.N.Y. Nov. 5, 1997). The Court thus looks to New York law, as the alleged accident occurred in New York City.
Thus, in order to establish a prima facie case of negligence and defeat the instant summary judgment motions, Plaintiff must show that Defendants had actual or constructive notice of the defective condition, Velez, 178 F. Supp.2d at 340-41. (citing Rogers v. Dorchester Assoc., 347 N.Y.S.2d 22 (1973); Albergo v. Deer Park Meat Farms, 526 N.Y.S.2d 580, 581 (2d Dep't 1988). Actual or constructive notice means that a defendant knew or should have known about the defect. Rogers, 347 N.Y.S.2d at 29; Koch v. Otis Elevator Co., 200 N.Y.S.2d 700, 703 (1st Dep't 1960).
Existence of Defect; Notice
Defendants 866 and Courtyard cite reports from Plaintiff's engineering expert, Harold Krongelb-Heimer, dated June 11, 1999 and October 17, 2000 as indicative of a lack of evidence of any defect. In the June 11, 1999 report. Mr. Krongelb-Heimer states that he had inspected the automatic doors, including walking through the doors more than twenty-five times, stopping and slowing down in the areas in the doorway where a closing door could strike a person entering through the doors. Mr. Krongelb-Heimer also observed the automatic doors for more than fifteen minutes. "[D]uring that time, [h]e observed no malfunction or near malfunction of the doors." Krongelb-Heimer Report, Exh. J to Affidavit of David Tavella, dated April 11, 2001. In addition, in respect of his walks through the doors, Mr. Krongelb-Heimer stated: "at no time was there any evidence of malfunction of the doors." Id. Defendants 866 and Courtyard also assert that the October 17, 2000 report confirms that Mr. Krongelb-Heimer did not find any defect. Based on these statements, Defendants 866 and Courtyard contend that there is no evidence of a defective condition concerning the automatic doors. Mr. Krongelb-Heimer asserted, however, that based upon his engineering experience there must have been defective maintenance upon the doors. See Krongelb-Heimer June 11, 1999 Report; Krongelb-Heimer October 17, 2000 Report.
Defendants 866 and Courtyard proffered, in support of their motion for summary judgment, the affidavit of fact witness Marc Corbett, chief engineer for the Hotel. Mr. Corbett states that following the accident, the Hotel called Dor-O-Matic and asked that firm to inspect the doors. Representatives from Dor-O-Matic found that the automatic doors were in working order and made no repairs or adjustments to the doors. Affidavit of Marc Corbett, sworn to April 5, 2001, ¶¶ 9-10.
Dor-O-Matic, also, contends that there is no evidence that the automatic doors malfunctioned. In support of its motion for summary judgment, Defendant Dor-O-Matic supplies the affidavit of Michael Trezza. branch manager for Dor-O-Matic. Mr. Trezza states that, on May 18, 1999. Dor-O-Matic exam med the automatic doors and found that the doors were working properly and that Dor-O-Matic. therefore, made no adjustments to the automatic doors. Affidavit of Michael Trezza, sworn to April 30, 2001, ¶ 13.
Dor-O-Matic has submitted the report of its engineering expert, Loren Slaybaugh, dated February 28, 2001. Ms. Slaybaugh asserts that she reviewed Dor-O-Matic maintenance and service records. relevant depositions and Mr. Krongelb-Heimer's report. in addition, Ms. Slaybaugh states that she has reviewed the specifications of the automatic doors at the Hotel and that she is fully familiar with their design and operation. Ms. Slaybaugh concludes, based upon her experience and review of the facts, that the automatic doors were operating properly and that the accident could not have occurred as described by Plaintiff
The fact that Dor-O-Matic performed repairs and maintenance on the doors prior to the accident does not establish that Dor-O-Matic or other the Defendants had actual notice of any malfunction. The reports concerning the repairs and maintenance performed by Dor-O-Matic do not indicate any problems with the doors relating to any doors closing prematurely on persons passing through the doors, and most of the repair calls involved the exterior, rather than the interior doors.
In light of the foregoing, there is no evidence that Defendants received reports or any other information such that they had knowledge of the alleged malfunction in the automatic doors. Accordingly. there is no triable issue of fact with respect to actual notice of the alleged defect with respect to any of the Defendants.
Constructive Notice
Constructive notice may be inferred from circumstantial evidence. See Velez, 178 F. Supp. 2d at 341 (citing Rogers, 347 N.Y.S. 2d at 29). Thus, if a plaintiff presents evidence that proper testing would have disclosed a malfunction, it is appropriate for the case to go to the jury on that question. Velez, at 341; Buria, N.Y.S.2d at 397 (2d Dep't 1959) ("[n]egligence is not . . . established unless it be shown that proper testing would have disclosed the [mechanism] to have been defective.");Albergo v. Deer Park Meat Farms, 526 N.Y.S.2d 580. 581 (2d Dep't 1988) (because plaintiff presented expert testimony "that a reasonable inspection of the shopping cart would have given defendant notice of the wheel's defective condition," the case was properly given to the jury).
As noted above. Mr. Krongelb-Heimer stated in his June 11, 1999 report that, "[b]ased on our observations and the description of the event and to a reasonable degree of engineering certainty, the proximate cause of the injuries sustained by Rose Stone was the negligent maintenance of the automatic sliding door that closed as she was passing through the door." Krongelb-Heimer June 11, 1999 Report. In his October 17, 2000 report, Mr. Krongelb-Heimer stated that, "[i]t is our professional opinion, within a reasonable degree of engineering certainty, that the proximate cause of the improper operation of the doors and subsequent injury to Rose Stone, was the failure of the door installers and/or whoever tested the door to insure that all of the safety mechanisms were adjusted and operated to the [applicable] standards." Krongelb-Heimer October 17, 2000 Report. Mr. Krongelb-Heimer also states in his October 17, 2000 report that Mr. Trezza, Branch Manager of Dor-O-Matic, was not aware of the specifications to which the safety sensors on the doors should be tested. See Krongelb-Heimer October 17, 2000 Report, at 2.
Inhis October 17, 2000 Report Mr. Krongelb-Heimer cites provisions of the New York City Administrative Code which require Defendants 866 and Courtyard to maintain the Hotel in a safe condition (New York City Administrative Code sections 27-127 and 27-128). Defendants 866 and Courtyard contend that an allegation of a violation of the general duty of maintenance and repair set forth in sections 27-127 and 27-128 is an insufficient basis for liability. 866 and Courtyard argue that Plaintiff has the burden of pointing to a specific safety provision of the New York City Administrative Code. Whether or not sections 27-127 and 27-128 impose liability upon 866 and Courtyard, it is clear that 866 and Courtyard have a duty to maintain the Hotel in reasonably safe condition. Mejia, 737 N.Y.S.2d at 352.
Dor-O-Matic disputing the contentions that the doors malfunctioned and that Mr. Trezza was unaware of the relevant specifications, cites Mr. Trezza's deposition testimony asserting that Mr. Trezza tested the doors properly. See Exh. A to Reply Affidavit in Further Support Dor-0-Matic's Motion for Summary Judgment, at 74-79. Dor-O-Matic's expert, Loren Slaybaugh, states in her February 28, 2001 report that "the doors were operating properly." Slaybaugh February 28, 2001 Report. In addition, Dor-O-Matic proffers the deposition testimony of Mr. Steve Campo, the Dor-O-Matic technician who inspected the automatic doors following Plaintiffs accident. Mr. Campo states that he checked all safety systems and tested the presence sensor on the doors and found the safety systems to be working properly. See Deposition of Steve Campo, Exh. I to Dor-O-Matic's Motion for Summary Judgment at 29-30.
Given the disagreement between Plaintiffs expert and Defendants' expert and fact witnesses as to whether the doors were properly maintained, there is a triable issue of fact as to whether the automatic doors were properly maintained such that Defendants 866, Courtyard and Dor-O-Matic had constructive notice of the alleged malfunction of the doors.
866 and Courtyard's Motion Against Dor-O-Matic
866 and Courtyard have moved for summary judgment dismissing Dor-O-Matic's cross claims for indemnification and contribution. Dor-O-Matic has similarly sought dismissal of all cross claims in its motion for summary judgment. Dor-O-Matic contends that 866 and Courtyard were responsible for maintenance of the automatic doors. 866 and Courtyard contend that they had no maintenance obligations concerning the doors. In addition, Dor-O-Matic asserts in its cross claim against 866 and Courtyard that in the event it is found liable to Plaintiff, 866 and Courtyard are liable to it in negligence. As noted above, in respect of the Plaintiff, 866 and Courtyard had a duty to maintain the Hotel in a reasonably safe condition under the existing circumstances. Mejia, 737 N.Y.S.2d at 352. Similarly, although Dor-O-Matic did not have a service contract with the Hotel for maintenance of the automatic doors, Dor-O-Matic had a duty to service the doors with due care. See e.g., Eaves Brooks Costume Co., 557 N.Y.S.2d at 289. However, the parties factually disagree about their respective responsibilities to each other for maintaining the automatic doors. Accordingly, 866 and Courtyard's motion also is denied insofar as it seeks to dismiss Dor-O-Matic's cross claims, and Dor-O-Matic's motion is denied insofar as it seeks to dismiss the cross claims of 866 and Courtyard.
LMB and JEM
LMB and JEM have moved for summary judgment against Plaintiff Plaintiff alleges in her complaint that Plaintiffs accident was a result of negligence of the "defendants." Complaint ¶ 31. The complaint, however, is devoid of specific allegations concerning any alleged negligence of Defendants LMB and JEM. In addition, Plaintiff fails to set forth any facts in opposition to LMB and JEWs motion for summary judgment concerning these Defendants' alleged negligence. Because Plaintiff has failed to come forward with facts sufficient to support a prima facie case for liability as against these two Defendants, LMB and JEM's motion for summary judgment is granted as against the Plaintiff.
In addition. 866, Courtyard and Dor-O-Matic have asserted cross claims against LMB and JEM, and JEM has a asserted a cross claim against 866 and Courtyard. LMB and JEM's motion for summary judgment seeks dismissal of all cross claims, but does not address specifically the cross claims of 866, Courtyard and Dor-O-Matic. 866 and Courtyard also argue that summary judgment as to their cross claims against LMB and JEM should be denied because there is a fact question as to whether the damages alleged in the complaint arose out of work performed by LMB and/or JEM. In light of foregoing and because LMB and JEM have not provided evidence or argument concerning the cross claims of 866, Courtyard and Dor-O-Matic, LMB and JEM's motion to dismiss the cross claims is denied.
Res Ipsa Loquitur
As an alternative theory of liability as against Defendants 866 and Courtyard, Plaintiff asserts that 866 and Courtyard can be found liable for injuries on the basis of the doctrine of res ipsa loquitur.
Plaintiff did not plead res ipsa loquitur in her complaint, but argues the applicability of the doctrine in her memorandum in support of her cross-motion (which the Court has deemed Opposition to Defendants' motions). Under New York law, "neither plaintiffs failure to specifically plead res ipsa loquitur nor the allegation of specific acts of negligence, along with a general allegation there of by way of the complaint as amplified by the bill of particulars. constitutes a bar to the invocation of res ipsa loquitur where the facts warrant its application." Weeden v. Armor Elevator Company, Inc., 468 N.Y.S.2d 898, 901 (2d Dep't 1983).
" Res ipsa loquitur is an often confused and often misused doctrine that enables a jury presented only with circumstantial evidence to infer negligence simply from the fact that an event happened." St. Paul Fire Marine Ins. Co. v. City of N.Y., 907 F.2d 299, 302 (2d Cir. 1990). The inference is permitted because "certain occurrences contain within themselves a sufficient basis for an inference of negligence."Dermatossian v. N.Y.C. Transit Auth., 501 N.Y.S.2d 784, 788 (1986) (citations omitted). Thus, the res ipsa loquiuir doctrine "simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence."Id. (citations omitted). The doctrine permits a plaintiff to establish a prima facie case of negligence without proving the elements usually necessary to state a negligence claim. In addition, application of res ipsa loquitur does not require actual or constructive notice of any defect. See Mejia, 737 N.Y.S.2d at 351 (citing Dittiger v. Isal Realty Corp., 290 N.Y. 492 (1943).
In New York, a case may not be submitted to a jury on the theory of res ipsa loquitur unless the plaintiff demonstrates that: (1) the event is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) the event is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event is not due to any voluntary action or contribution on the part of the plaintiffKambat v. St. Francis Hosp., 655 N.Y.S.2d 844, 846 (1997); Ebanks v. N.Y.C. Transit Auth., 518 N.Y.S.2d 776, 777 (1987); Dermatossian, 501 N YS.2d at 788; see also St. Paul Fire, 907 F.2d at 302 (citingDermatossian).
Defendants' motions for summary judgment are granted to the extent Plaintiff seeks to rely on the res ipsa loquitur doctrine because Plaintiff has not proffered sufficient evidence to support the exclusive control element of her burden. First, Plaintiff admits that the doctrine of res ipsa loquitur does not apply to Dor-O-Matic, although Dor-O-Matic performed maintenance on the doors, because Dor-O-Matic was not required to inspect or maintain the automatic doors regularly. See Plaintiff s Memorandum of Law, at 7. The service reports reflect that Dor-O-Matic performed maintenance upon parts of the doors that were accessible to the public and upon the sensors and motors which Plaintiff asserts were inaccessible to the public. Plaintiff contends that the "mechanisms that failed which could have been the control box, the motor that operated the door, motion detector, or the presence sensor" were in inaccessible to members of the public. Id. at 6-7. Because Dor-O-Matic performed maintenance and repair service upon the doors from time to time Defendants 866 and Courtyard cannot be held to have had exclusive control of the doors. See Dermatossian, 501 N.Y.S.2d at 789 (where it appears that the instrumentality causing the injury could have been under the control of any one of a number of entities, where none are subject to the control of the other, the doctrine may not be invoked, unless there is some evidence to enable identification of the perpetrator of the wrong). Plaintiff has, moreover, proffered no evidence to exclude the possibility that the operation of the automatic doors could have been affected adversely by the many persons passing in and out of the entrance to the Hotel every day. See id.; Velez, 178 F. Supp. 2d at 340.
Plaintiff has thus failed to demonstrate that the control of the automatic doors by Defendants 866 and Courtyard was sufficiently exclusive to rule out the possibility that the alleged defect or malfunction of the doors was caused by some agency other than Defendants 866 and Courtyard. Id. Under these circumstances, Defendants are entitled to judgment dismissing Plaintiffs claim to the extent she seeks to rely on the res ipsa loquitur doctrine.
CONCLUSION
The foregoing reasons, the motion for summary judgment of 866 and Courtyard is granted insofar as it is directed to that element of Plaintiffs claim that relies on the res ipsa loquitur doctrine. It is denied in all other aspects. The motion for summary judgment of Dor-O-Matic is denied. The motion for summary judgment of LMB and JEM is granted insofar as it is directed to Plaintiffs claims and denied insofar as it is directed to the cross-claims of 866, Courtyard and Dor-0-Matic.
SO ORDERED.