Opinion
INDEX NO. 109609/2011
02-24-2021
MAXIMO VASQUEZ, Plaintiff, v. WEST 161 LLC and IMPERIAL ELEVATOR CORP., Defendants.
NYSCEF DOC. NO. 17 PRESENT: HON. DAVID BENJAMIN COHEN Justice MOTION SEQ. NO. 005
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 005) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion to/for DISMISSAL.
In this personal injury action commenced by plaintiff Maximo Vasquez, defendant Imperial Elevator Corp. ("Imperial") moves, pursuant to CPLR 3211 and 3212, to dismiss the complaint and all cross claims asserted against it. Plaintiff and codefendant West 161 LLC ("West 161") oppose the motion. After consideration of the parties' contentions, as well as a review of the relevant statutes and case law, the motion is decided as follows.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from an incident on January 19, 2011 in which plaintiff was injured in an elevator accident at 517 West 161st Street, New York, New York ("the building" or "the premises"). Doc. 7, Ex. A. Plaintiff, a tenant in apartment 32 on the third floor at the premises, was allegedly injured when he was struck and knocked to the ground by a swinging elevator door which came off its hinges while he was exiting the elevator on his floor. Id. He subsequently commenced this action by filing a summons and complaint on August 19, 2011. In his amended complaint dated November 4, 2011, plaintiff alleged that the building was owned by West 161, which hired Imperial as its elevator maintenance contractor. Id. Plaintiff claimed that the accident was caused by the negligence of the defendants, who had actual and/or constructive notice of the defective condition, i.e., that the hinges on the swinging shaft door were worn. Id.
As discussed in more detail below, the lone elevator in the building had a door which slid open to allow people to enter and exit, as well as a swinging door on each floor which was opened manually once the sliding door opened.
In September 2010, prior to plaintiff's accident, Imperial had entered into a monthly maintenance contract with West 161's managing agent which provided, inter alia, that:
On a monthly basis [Imperial] will systematically examine, clean, lubricate and furnish lubricants for the machine, motor and controller parts including, worms, gears, thrusts, bearings, brake magnet coils, brake shoes, brushes, windings, commutators, coils, contacts, resistors, magnets frame, and will furnish and install contacts and carbons where necessary, and adjust equipment for proper operation. The company will keep the elevators properly lubricated, with lubricant prepared to its specifications. Safety devices and governors shall also be examined.Doc. 7, Ex. H.
The contract further provided that:
[Imperial] does not assume [West 161's] safety-related obligations, nor does [Imperial] assume possession or management of any part of the equipment or its operation, including the leveling of cars at landings, erratic operation of car doors, shaft doors or their locking devices or any other situation that may occur that cannot be revealed at the time of our regular service under the terms of this contract.Doc. 7, Ex. H.
Imperial joined issue by its answer filed December 7, 2011, in which it denied all substantive allegations of wrongdoing, asserted various affirmative defenses, and cross-claimed against West 161 for contribution and contractual and common law indemnification. Id.
In his bill of particulars dated December 12, 2011, plaintiff alleged that, on January 19, 2011, he was injured while leaving the elevator on the third floor of the building in the following manner: "As [I] proceeded to exit the elevator, the first elevator door open[ed] automatically. When [I] pushed the second door to exit the elevator[,] the entire door came off the hinge[s], causing said door to collapse on [me]." Doc. 7, Ex. D. Plaintiff claimed that the accident was caused by the negligence of the defendants. Id. He also claimed the elevator constituted a nuisance and that defendants had constructive notice of the condition.
In its answer dated May 23, 2012, West 161 admitted that it owned the building but denied all substantive allegations of wrongdoing, asserted various affirmative defenses, and cross-claimed against Imperial for contribution as well as common law and contractual indemnification. Id.
Plaintiff's deposition was conducted on October 1 and December 19, 2013 and on November 5, 2019. Doc. 7, Ex. E. Plaintiff testified that he has lived on the third floor of the building for approximately 15 years. Doc. 7, Ex. E, Tr. 10/1/13 at 8, 42. The elevator in the building had two doors and, in order to exit the elevator, the inner door opened automatically upon reaching a floor and then the occupant of the elevator had to manually open the heavy outer door in order to walk out of the elevator onto the floor. Id. at 45-47. Plaintiff testified that, if there was a problem with the elevator, he would notify the building's superintendent, Louis Velez. Id. at 45, 53. Although he called Velez "every year" to report that the elevator got stuck between floors, he could not recall exactly when those complaints were made and plaintiff did not make any written complaints about the elevator to building management prior to the incident. Id. at 45, 53.
On the day of the alleged accident, plaintiff was in the subject elevator going from the first to the third floor. Id. at 69. When the elevator reached the third floor, the inner door in the cab slid open without incident. Id. at 69. Plaintiff then attempted to push open the outer door of the elevator, which swung open on two hinges, with his right hand. Id. at 64-66, 69-70. Plaintiff admitted that he had to go to the bathroom when he left the elevator and that he pushed the door open "hard", forgetting that a piece of the door was missing. Doc. 7, Ex. E, Tr. 12/19/13 at 17-19, 146. Specifically, he had previously seen a bolt missing in the middle of the "door closer", although he had not previously observed any problem with the two hinges on the swinging door. Id. at 129, 139. When the outer door swung open "all the way," plaintiff grabbed his belongings, exited the cab, and proceeded to take out his apartment keys about three feet away from the door, when he alleges the swinging outer door became dislodged and struck him. Doc. 7, Ex. E, Tr. 10/1/13 at 70-71.
Following the incident, Velez and two other building employees, a porter and a maintenance worker, responded to the third floor to see what had happened. Doc. 7, Ex. E, Tr. 12/19/13 at 20. The superintendent and his two assistants then lifted the elevator door back into place and posted a warning sign on the outside of the elevator. Id. at 21. The superintendent removed the elevator from service later that evening. Id. at 162.
Plaintiff maintained that, prior to the accident, he had complained to Velez and the building's management company about the condition of the swinging door on the third floor, but the building failed to repair it or to take the elevator out of service. Id. at 134-135. He further represented that, prior to the day of the incident, he had never seen the building place a warning sign on or near the third floor elevator. Id. at 162. Nor had he ever seen the hinges on the door malfunction prior to the incident. Id. at 139.
Non-party Baruch Singer was deposed in April 2016. Doc. 7, Ex. F. Singer, a principal of West 161, the owner of the building at the time of the incident, confirmed that Velez was the superintendent of the building on the date of the occurrence. Id. at 8, 11. Singer explained that, if a tenant had a complaint about a maintenance or elevator issue, it would be handled by West 161 employee Mary Gordon, who was in charge of maintenance at the management office. Id. at 13-14. If a tenant had a complaint, Gordon would direct the superintendent to make a repair. Id. at 16. If the elevator was not working properly, the superintendent was required to shut it down and have the elevator repaired and returned to service. Id. at 33. Singer represented that Velez had the authority to take the elevator out of service if necessary. Id. at 33. Gordon never told Singer about any issues or complaints relating to the swinging elevator door on the third floor. Id. at 30. Nor was he independently aware of any such complaints. Id. at 32.
Joe Lichtman, president of Imperial from 2001 through 2013, was deposed on behalf of that entity in May 2016. Doc. 7, Ex. G. He testified that Imperial's contract with the building, which became effective on January 1, 2010 and was still in effect on the date of the accident, only required it to perform monthly lubrication and to respond if the building notified it about an emergency. Id. at 36. The contract did not require Imperial to make any repairs, and it would only do so in the event the building owner specifically authorized it to. Id. at 36. The swinging elevator doors in the building were maintained by the superintendent or the management company unless the building specifically authorized Imperial to make a repair. Id. at 35. If the building's management notified Imperial about a problem with the elevator, Imperial would evaluate it and determine whether it would submit a proposal to the building to perform the repair work. Id. at 36-37.
Lichtman admitted that Imperial performed routine annual inspections of the elevator. Id. at 25. During the course of such annual tests, Imperial checked the elevator's systems to ensure that they were in proper working order. Id. at 25. This included stopping the elevator cab at each floor and having the technician push the swinging doors on each floor open to make sure they were opening and closing properly. Id. at 52. The technician would then allow the swinging door to close on its own, the cab door would close, and the cab would travel to the next floor. Id. at 52. If an Imperial technician encountered a problem with the elevator, including something which prevented a door from closing properly, he would take the elevator out of service. Id. at 53. If a mechanic noted that the door was closing too fast or too slow, Imperial would send a proposal to building management for a repair to be made. Id. at 53.
According to Lichtman, Imperial's obligation was simply to test the operation and performance of the elevator and its equipment, and not to predict how the equipment would perform in the future. Id. at 53. If the swinging doors on any floor had not closed properly during the course of Imperial's visit and the elevator had to be shut down, the test would have been marked unsatisfactory and the issue with the door would have been reflected in the comments section of the Department of Buildings' annual ELV3 report. Id. at 54-55. However, as established by the ELV3 report, the elevator passed its 2010 annual inspection. Doc. 7, Ex. K. If the elevator failed inspection, Imperial would have submitted a proposal to the building for any necessary repairs. Doc. 7, Ex. G at 55. Imperial was not required to perform any other routine inspection or monthly test of the elevator. Id. at 26.
Lichtman further testified that, on January 3, 2011, Imperial responded to the building because the elevator was out of service. Id. at 69. A technician adjusted the elevator, performed monthly maintenance, and restored it to service. Id. Imperial's dispatch log, which covered the time period from September 16, 2010 through January 3, 2011, did not reflect that it received any complaints from the building related to the swinging doors. Id. at 56-57. Nor did Imperial receive any complaints about the elevator between January 3 and January 19, 2011. Id. at 69. If Imperial had received a complaint during that period, it would have been reflected on the dispatch log. Id. at 69.
Based on his experience in the industry, Lichtman opined that vandalism or some other act caused the swinging door to become completely dislodged from its hinges, since this type of event did not ordinarily occur on its own. Id. at 72.
Plaintiff filed a note of issue on or about December 30, 2019. Doc. 7, Ex. C.
Imperial now moves, pursuant to CPLR 3211 and 3212, to dismiss the complaint on the ground that it had no duty to maintain or repair the swinging door which injured plaintiff. Docs. 5-7. It further asserts that the maintenance agreement for the elevator specifically provided that it had no obligation to address problems with the swinging doors. Doc. 6. Alternatively, Imperial argues that, even if it had such a duty, it had neither actual nor constructive notice of any problem with the door. Id. Imperial also maintains that the doctrine of res ipsa loquitur may not be used to implicate it under the facts of this case. Id.
In opposition to the motion, plaintiff argues that Imperial failed to establish its prima facie entitlement to summary judgment and that, even if it had, issues of fact exist regarding whether it properly inspected and/or maintained the door, thereby warranting denial of the motion. Doc. 11.
West 161 opposes the motion as well, asserting that Imperial should have discovered the problem with the door during its regular servicing of the elevator and that it should have disclosed the problem with the door to West 161. Doc. 14. It insists that, although there is no evidence that Imperial ever reported a problem with the door to West 161, this was not because there was no problem, but rather because Imperial negligently failed to discover it. Id. Further, West 161 argues that an issue of fact exists regarding whether Imperial had a duty to inspect the swinging door. Id.
Singer submits an affidavit in opposition to the motion attesting to the fact that he searched West 161's records and found no record of any complaints about the swinging door on the third floor, or its hinges, made before the accident. Doc. 15.
In reply, Imperial denies that it had any obligation to repair the swinging door. Doc. 16. It further asserts that it had no obligation to make repairs unless authorized to do so by West 161. Id. Imperial also claims that, even if it had a duty to maintain or repair the swinging door, it did not create or have actual or constructive notice of any problem with the same. Id. Imperial further asserts that the doctrine of res ipsa loquitur is inapplicable herein.
LEGAL CONCLUSIONS
"[T]he 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 demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once prima facie entitlement has been established, in order to defeat the motion, the opposing party must "'assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established on trial . . . and it is insufficient to merely set forth averments of factual or legal conclusions'" (Genger v Genger, 123 AD3d 445, 447 [1st Dept 2014], quoting Schiraldi v U.S. Min. Prods., 194 AD2d 482, 483 [1st Dept 1993]).
In Casey v New York El. & Elec. Corp., 82 AD3d 639, 640 (1st Dept 2011), the Appellate Division, First Department held that "an elevator maintenance company owes a duty of care to members of the public, and may be liable for failing to correct conditions of which it is aware, or failing to use reasonable care to discover and correct a condition which it ought to have found" (citations omitted). The Appellate Division noted that such a duty was "limited . . . to cases where, pursuant to contract, the elevator company has assumed 'exclusive control' of the elevator at the time of the accident . . ." (Casey, 82 AD3d at 640).
However, in Medinas v MILT Holdings LLC, 131 AD3d 121, 128 (1st Dept 2015), the First Department, citing Espinal v Melville Snow Contractors, 98 NY2d 136 (2002), held that it was "unwilling to apply the rule recited in Casey to the extent it allow[ed] a claim of negligent repair or inspection against an elevator repair contractor by a nonparty to its contract in the absence of a showing that by the work it performed, it 'launched a force of harm' by creating or exacerbating an unsafe condition."
Here, Imperial has established its prima facie entitlement to summary judgment pursuant to CPLR 3212 by demonstrating that it did not create or exacerbate the dangerous condition which allegedly caused plaintiff's injuries. Specifically, Imperial submitted as an exhibit to its motion its maintenance contract, which provided, inter alia, that it did not "assume possession or management of any part of the equipment or its operation, including . . . shaft doors or their locking devices . . ." Further, Lichtman testified that, among other things, the swinging door was maintained by the building superintendent or the management company unless the building specifically authorized Imperial to repair it; Imperial's dispatch log revealed no complaints from the building about swinging doors from January 1, 2010 until the date of the accident; and that, although Imperial repaired the elevator on January 3, 2011, there were no complaints regarding the elevator between that date and January 19, 2011, when plaintiff was allegedly injured.
In opposition, neither plaintiff nor West 161 raises a triable issue of material fact. The crux of the opposition to the motion by plaintiff and West 161 is that Imperial negligently failed to diagnose a problem with the swinging door on the third floor of the building. However, even assuming, arguendo, that Imperial negligently inspected the elevator, plaintiff and West 161 fail to raise an issue regarding whether Imperial launched a force or instrument of harm since they do not demonstrate, or even allege, that Imperial created or exacerbated a dangerous condition. Medinas, 131 AD3d at 126. Thus, the complaint must be dismissed against Imperial.
Although plaintiff claims that defendants "create[ed] a nuisance" (Doc. 7, Ex. A), this allegation is, in effect, one sounding in negligence given that it is based on the fact that the defendants allowed the hinges on the swinging door to deteriorate over time, and not that they affirmatively created a danger.
The cross claims by West 161 against Imperial must also be dismissed. A contribution claim may be interposed when two or more parties are alleged to be liable for damages for the same injury (see CPLR 1401). "The critical requirement for apportionment under ... CPLR article 14 is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought" (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603 [1988]). Since Imperial, having launched no force or instrument of harm, had no duty to plaintiff, West 161 cannot seek contribution against it. Additionally, since the superintendent or the management company of the building was responsible for maintaining the swinging doors, West 161 cannot be deemed vicariously liable for the acts of Imperial, and thus West 161 cannot obtain common law indemnification against Imperial (See Stewart Title Ins. Co. v New York Title Research Corp., 178 AD3d 618, 619 [1st Dept 2019] [citation omitted]). Further, West 161's claim for contractual indemnification against Imperial must be dismissed since, as noted above, the maintenance agreement specifically provided that Imperial was not responsible for the swinging doors.
The remainder of the parties' contentions are either without merit or need not be addressed in light of the findings above.
Accordingly, it is hereby:
ORDERED that the motion for summary judgment by defendant Imperial Elevator Corp. is granted and the complaint and all cross claims against said defendant are dismissed; and it is further
ORDERED that the said claims and cross claims against defendant Imperial Elevator Corp. are severed and the balance of the action against defendant West 161 LLC shall continue; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of defendant Imperial Elevator Corp. dismissing the claims and cross claims made against it in this action, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs. 2/24/2021
DATE
/s/ _________
DAVID BENJAMIN COHEN, J.S.C.