Opinion
No. TS300433–10/NY.
12-30-2014
Jean THERMIDOR, Plaintiff, v. PINNACLE UPTOWN, LLC and Slade Industries, INC, Defendants.
The Law Offices of Jesse Barab by Fabiana Marisa Furgal represented plaintiff Gottlieb. Siegel & Schwartz, LLP by Stephanie Tannenholtz represented defendant Slade.
The Law Offices of Jesse Barab by Fabiana Marisa Furgal represented plaintiff Gottlieb.
Siegel & Schwartz, LLP by Stephanie Tannenholtz represented defendant Slade.
Opinion
DAVID B. COHEN, J.
On June 17, 2009, plaintiff Jean Thermidor, filed the complaint in this action alleging that he had suffered personal injuries due to the negligence of the defendants. On June 27, 2009, defendant Slade Industries, Inc. (“Slade”) served its Verified Answer, and on August 7, 2009, Slade filed its Verified Answer. On July 22, 2014, Slade filed this motion seeking summary judgment dismissing the plaintiff's complaint and any cross-claims by defendant Pinnacle Uptown, LLC (“Pinnacle”).
On July 31, 2008, plaintiff alleges that he was entering an elevator in a building owned by defendant Pinnacle, when he was struck on the left side of his head by a piece of metal that was protruding from the inside of the door. At the time of the accident, Slade was the elevator maintenance repair company and was responsible for the monthly maintenance of the elevator. Plaintiff further alleges that defendants had actual or constructive notice of the defective condition.
On March 23, 2011, plaintiff testified at his deposition that on the day of the incident he was in the lobby waiting for the elevator to arrive, along with two female tenants. He described the elevator as having a manual shaftway door that must be pulled open by whomever will be using the elevator. When the elevator would arrive, plaintiff would normally pull open the swing door and open the metal gate manually, while holding the outer swing door with his left hand, and using his right hand to push the metal gate open from left to right. On July 31, 2008, as he was opening the gate, before it was fully opened, he was hit in the left side of the head by an L-shaped piece of iron. Plaintiff testified that he fell to the floor and lost consciousness.
Plaintiff further testified that the first time he actually saw the piece of iron was the day after the accident, when he was checking the elevator to see what had hit him. On that day, he saw the horizontal part of the L-shaped piece of iron dangling from the gate. Plaintiff acknowledged that he had never had problems with the gate previously and that prior to the accident, he had last used the elevator the previous day and did not notice an L-shaped piece of iron hanging.
On December 12, 2011, Mr. Alfred Maringione, a service manager for Slade, testified at a deposition. Mr. Maringione, who oversaw the day-to-day operations for Slade's maintenance mechanics, stated that at no time were there any prior problems with the gate, that Slade had never had a repair call relating to the gate or arm, and the only maintenance done on the gate was to lubricate it. Mr. Maringione further testified that an elevator mechanic had performed regular monthly maintenance on the elevator on July 21, 2008, which included making sure everything was all right, and the mechanic had not reported any problems with the gate.
Slade now argues that as a matter of law, plaintiff cannot make out a prima facie case for negligence against it as the evidence fails to establish that Slade had control over or created any defect. Slade further argues that it is entitled to summary judgment because the evidence fails to establish that it had actual or constructive notice of any defective condition.
Plaintiff argues there remains a genuine issue of material fact as to whether the loose metal piece attached to the elevator gate is an event that would not ordinarily occur had due care been exercised in the elevator's maintenance. Additionally, plaintiff asserts that the circumstances of the incident alone may afford a sufficient basis for an inference of negligence under a theory of res ipsa loquitur. Plaintiff also contends that defendant had constructive notice of the defective gate, as the defective condition was visible and apparent upon reasonable inspection, and defendant had performed maintenance on the elevator ten days before the incident.
Summary judgment is a drastic remedy that should not be granted where there exists a triable issue of fact (Intergrated Logistics Consultants v. Fidata Corp., 131 A.D.2d 338 [1st Dept 1987] ; Ratner v. Elovitz, 198 A.D.2d 184 [1st Dept 1993] ). On a summary judgment motion, the court must view all evidence in a light most favorable to the non-moving party (Rodriguez v. Parkchester South Condominium Inc., 178 A.D.2d 231 [1st Dept 1991] ). The moving party must show that as a matter of law it is entitled to judgment [Alvarez v. Prospect Hosp., 68 N.Y.2d 320 324 [1986] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ). Where the moving party has demonstrated its prima facie entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
An 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 for failure to use reasonable care to discover and correct a condition which it ought to have found (Rogers v. Dorchester Associates, 32 N.Y.2d 553 [1973]. The mere happening of the accident does not establish liability on the part of the defendant (Lewis v. Metropolitan Transp. Authority, 99 A.D.2d 246 [1984] ). To establish a prima facie case of negligence for a dangerous condition, plaintiff must show that the defendant either created a dangerous condition (Id. at 249 ) or had actual or constructive knowledge of the condition (Segretti v. Shorenstein Co., East, L.P., 256 A.D.2d 234 [1st Dept 1998] ). To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy a condition (Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ).
The fact that plaintiff allegedly had an accident that involved the elevator gate, does not necessarily impugn negligence to the elevator maintenance company, defendant Slade. Plaintiff did not provide any evidence that Slade had actual notice of the condition, nor did Slade or defendant Pinnacle have any record of Slade being made aware of any issue with the gate. Defendant Slade cannot be charged with constructive notice either. Plaintiff testified that prior to the accident, he never had any problems with the elevator gate (see Plaintiff's deposition transcript, Exhibit D, at 48, 113). Mr. Maringione testified that evidence in the maintenance records indicate there had never been any problems with the gate, or the arm, and the only maintenance performed by Slade was the need to lubricate the gate (see Alfred Maringione's deposition transcript, Exhibit F at pp. 38–39.) Additionally, plaintiff testified that prior to the accident, there were never any maintenance-related problems with the elevator gate (Exhibit D at 48.) Hence, Slade lacked actual or constructive knowledge of the dangerous condition and there is no circumstantial evidence to permit the inference of negligent inspection and repair of the gate and arm (Rogers, 32 N.Y.2d at 553 ).
To prevail in a negligence case under the theory of res ipsa loquitor, a plaintiff must establish the following conditions: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff (Tora v. GVP AG, 31 AD3d 341 [1st Dept 2006] ). Further, under the theory of res ipsa loquitor, circumstantial evidence will suffice to support an inference of negligence where the defendant company has exclusive control of elevator maintenance (see Rogers, 32 N.Y.2d at 560 ). However, that principle is limited, to cases where such exclusive control by the defendant exists at the time of the accident (Hernandez v. Pace Elevator Inc., 69 AD3d 493 [1st Dept 2010] ; Karian v. G & L Realty, LLC, 32 AD3d 261 [1st Dept 2006] ). “Exclusivity is a relative term, not an absolute. The logical basis for [the control] requirement is simply that it must appear that the negligence of which the thing speaks is probably that of defendant and not of another” (see Burgess v. Otis Elevator Co., 114 A.D.2d 784 [1st Dept 1985]citations omitted ).
Although the doctrine of res ipsa loquitur has been applied to cases involving injuries caused by elevators, unlike cases involving breakdown of operating mechanisms that are relatively inaccessible to the general public, in this instance, the gate is designed to come into contact with the public and, thus, subject to potentially damaging misuse or vandalism (see De Sanctis v. Montgomery Elevator Company, Inc., et. al., 304 A.D.2d 936 [3rd Dept 2003] [holding that doctrine of res ipsa loquitur was inapplicable to elevator passenger's negligence action against elevator repair company for injuries passenger allegedly sustained when elevator malfunctioned during its descent; “safe edge,” which passenger alleged was the cause of the accident, was not in the exclusive control of the company, as it was designed to come into contact with the public and was thus subject to misuse or vandalism]; see generally Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219 [1986] [where public had continuous access and use of the item in question, plaintiff could not establish sufficient exclusivity]; see also Cilinger v. Arditi Realty Corp.et al., 77 AD3d 880 [2nd Dept 2010] [tenants, whose two-year-old son was injured after his foot became wedged between the floor of the elevator cab and the exterior wall, could not rely on the doctrine of res ipsa loquitur, absent any showing that landlord or building manager had exclusive control of the elevator]; Petro v. New York Life Insurance Company, et al., 277 A.D.2d 213 [2nd Dept 2000] [doctrine of res ipsa loquitur did not apply to case involving elevator passenger who sustained injuries when he moved a piece of heavy equipment on a dolly into elevator, causing it to drop suddenly, where elevator was not within exclusive control of defendants, the elevator owner and company which serviced the elevator] ).
On July 31, 2008, defendant Slade did not have exclusive control over the elevator and gate. Defendant Slade had performed maintenance ten days prior to the accident and was not present for the next ten days at the building. Everyone who resided in the building, and anyone who used the elevator, including building staff, tenants and guests, had access to and used the gate. Indeed, plaintiff in his deposition admitted to using the elevator and gate on the day prior to the accident. Because of the use of the elevator and gate by many people, including plaintiff, defendant Slade was not in exclusive control of the gate at the time of the accident.
For the above reasons, it is therefore
ORDERED that the motion for summary judgment in favor of defendant Slade is granted.
This constitutes the decision and order of this Court.