Opinion
20063/03.
Decided September 21, 2006.
Caesar Napoli New York, NY, Attorneys for Plaintiffs.
Babchik Young, LLP, White Plains, NY, Attorneys for Defendants.
Cartafalsa, Slattery, Turpin Metaxas, New York, NY, Attorneys for the 3rd Party Defendant 3rd Party Plaintiff.
Upon the foregoing papers, defendant Royalton, LLC (Royalton) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and granting summary judgment on its cross claims and third-party claims for breach of contract and common law indemnification.
On January 27, 2002, Yun-Long Lin (plaintiff) was allegedly injured when an elevator at 44 West 44 Street in Manhattan dropped suddenly. Thereafter, he and, derivatively, his wife, Hsiu-Ying Lin, commenced this negligence action against Royalton, the owner of the subject premises, and Central Elevator, Inc. (Central), which had a contract to perform maintenance and repair of the elevators at the premises.
In its motion, Royalton asserts that summary judgment is warranted because it did not have notice of an alleged defect in the subject elevator, nor did it create the hazardous condition. Royalton further alleges that it was plaintiff's general employer at the time of the occurrence and, therefore, workers' compensation is plaintiff's exclusive remedy. Assuming that the complaint is not dismissed, Royalton "takes the position that Central . . . owes common law defense and indemnification based upon an elevator maintenance agreement between the two parties." Royalton refers to plaintiff's deposition testimony in which he stated that he was employed at the Royalton Hotel as a room attendant and that he had not had any problems with the elevator in the past. Royalton also cites the deposition testimony of Anthony Blando, a service mechanic employed by New York Elevator. According to Mr. Blando, he performed monthly maintenance on the subject elevator and there were no previous problems of the kind allegedly encountered by plaintiff. Another witness, Charles Sciascia, the hotel's chief engineer, testified that the hotel had an elevator maintenance agreement with Central, that neither he nor his staff would do more than casually inspect the elevators and that there were never any complaints that the elevators dropped suddenly. Royalton points out that, according to plaintiff's W-2 form, he was employed by Ian Schrager Hotel Management, LLC (ISHM); however, pursuant to a Property Management Agreement between ISHM and Royalton (the owner of the Royalton Hotel), plaintiff was actually being paid by Royalton. Since Royalton was plaintiff's "general employer" and plaintiff was injured during the course of his employment, Royalton argues that dismissal is warranted on that basis. Given the absence of negligence on the part of Royalton and Central's contractual obligation to perform its duty of maintenance, Royalton argues that it should be granted judgment in its favor on its claims for common law defense and indemnification against Central, including the costs incurred in defending this action.
Central and New York Elevator are both owned by the same parent company, Thyssen/Krupp.
According to Royalton, ISHM was plaintiff's special employer.
In partial opposition to the motion, Central asserts that the issue of Central's duty to indemnify Royalton must await a determination as to whether plaintiff's injuries were caused by any negligence on the part of Central.
In their opposition papers, plaintiffs contend that Royalton had a nondelegable duty to maintain its premises pursuant to Multiple Dwelling Law § 78. Moreover, plaintiffs argue that the doctrine of res ipsa loquitur applies to the facts of this case. With respect to Royalton's lack of due care, plaintiffs submit the affidavit of an expert, Patrick Carrajat, in which he avers that routine maintenance was not being performed in accordance with Central's contractual obligations, that such lapse caused the accident in question and that Royalton did not fulfill its nondelegable duty to maintain the premises, including its duty to exercise proper control over Central's performance of preventive maintenance. With respect to the issue of "general employment," plaintiffs note that, pursuant to the Property Management Agreement, ISHM had responsibility for the supervision of the day-to-day operations of the hotel, as well as for the hiring and firing of employees.
In reply, Royalton contends that a grant of indemnification would not be premature since there can be no showing of active negligence on its part. With respect to Royalton's alleged nondelegable duty to maintain its premises, Royalton asserts that plaintiff must still demonstrate that Royalton had notice of the defective condition. Royalton further argues that the doctrine of res ipsa loquitur is inapplicable because the elevator in question was not under its exclusive control. Royalton faults the affidavit of plaintiff's expert since he blamed the cause of the accident on insufficient inspections, a function assumed by Central under its maintenance contract, and failed to make any definitive statement about the actual cause of the alleged malfunction. Moreover, because plaintiff was being paid by funds deposited by Royalton into ISHM's operating account, Royalton concludes that it was plaintiff's general employer for purposes of the Workers' Compensation Law.
Royalton, as owner of a multiple dwelling (the Royaton Hotel), owed a nondelegable duty to persons on its premises to maintain the elevator in a reasonably safe condition (Multiple Dwelling Law § 78). Plaintiffs, therefore, can maintain an action against Royalton even though responsibility had been transferred to Central ( see Rogers v. Dorchester Assocs., 32 NY2d 553), provided Royalton had notice, actual or constructive, of the malfunction ( see Camaj v. East 52nd Partners, 215 AD2d 150, 151). In this case, however, there is no evidence that Royalton had notice of the tendency of the elevator to drop precipitously.
In opposition to the motion, plaintiffs assert that the doctrine of res ipsa loquitor precludes a finding in Royalton's favor on the issue of liability. Res ipsa loquitur "permits the jury to infer negligence" ( States v. Lourdes Hospital, 100 NY2d 208, 213-214). The res ipsa inference, in effect, substitutes for evidence of actual or constructive notice where notice is a necessary element of plaintiff's claim for negligence ( see Dittiger v. Isal Realty Corporation, 290 NY 492, 495-496). The submission of a case to a jury on the theory of res ipsa loquitor is warranted when the plaintiff can establish the following elements: (1) the accident is of a type that does not occur in the absence of negligence; (2) it must have been 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 ( see Coku v. Millar Elevator Industries, Inc., 12 AD3d 340 [2004). The requisite element of exclusive control is lacking in this case. "The requirement of exclusive possession and control is not an absolutely rigid concept. It implies that the possession and control of the defendant over the instrumentality are of such a character that the probability that the negligent act was caused by someone other than the defendant is so remote that it is fair to permit an inference that the defendant is the negligent party" ( Cameron v. Bohack Co., 27 AD2d 362, 364). Given Central's responsibility for the inspection and repair of the subject elevator, Royalton did not exercise exclusive control of the instrumentality which caused plaintiff's injuries. Consequently, as to Royalton, the doctrine of res ipsa loquitor is inapplicable and that branch of its motion which seeks dismissal of the complaint and all cross claims against it is granted.
It appears that Royalton served a third-party complaint against Central, as well as asserted cross claims against Central in its answer. In both pleadings, Royalton seeks indemnification and/or contribution from Central should Royalton be held accountable for any damages by plaintiff. Since all claims and cross claims against Royalton have been dismissed, its claims for contribution and common law indemnification are academic. Although, under certain circumstances, one party to a contract might be obliged to reimburse the other for the costs incurred in defending an action arising out of the performance of the contract, the maintenance agreement between Central and Royalton appears (at page 9) to require Royalton to reimburse Central for the latter's legal expenses, if it is determined that Royalton was solely liable for the injury alleged in the litigation. The agreement does not, however, provide for reimbursement of Royalton's expenses. Therefore, that branch of the motion by Royalton which seeks summary judgment on its third-party complaint and cross claims against Central is denied.
Accordingly, Royalton's motion is granted only to the extent of dismissing the complaint and all cross claims asserted against it.
The foregoing constitutes the decision and order of this court.