Ansbro v. Brookfield Real Props.
| Docket Number | Index No. 153511/2019,Third-Party Index No. 595769/2020,Second Third-Party Index No. 595722/2021,Third Third-Party Index No. 595982/2022,Motion Seq. Nos. 003,004,005 |
| Decision Date | 06 March 2023 |
| Citation | 2023 NY Slip Op 30663 (U) |
| Parties | ELIZABETH ANSBRO, Plaintiff, v. BROOKFIELD REAL PROPERTIES, LLC, CLUNE CONSTRUCTION COMPANY, L.P., S&J ENTRANCE & WINDOW SPECIALIST, INC., BROOKFIELD ASSET MANAGEMENT LLC, BROOKFIELD PROPERTY GROUP LLC, and 666 FIFTH ASSOCIATES LLC, Defendants. BSREP III NERO LLC (incorrectly sued in the main Action as "BROOKFIELD REAL PROPERTIES, LLC"), BROOKFIELD ASSET MANAGEMENT, LLC and BROOKFIELD PROPERTY GROUP LLC, Third-Party Plaintiffs, v. SCHIFF HARDIN LLP, Third-Party Defendant. 666 FIFTH ASSOCIATES LLC, BSREP III NERO LLC (incorrectly sued in the main Action as "BROOKFIELD REAL PROPERTIES, LLC"), Second Third-Party Plaintiffs, v. MADISON SERVICE CORPORATION, Second Third-Party Defendant. 666 FIFTH ASSOCIATES LLC and BSREP III NERO LLC (incorrectly sued in the main Action as "BROOKFIELD REAL PROPERTIES, LLC"), Third Third-Party Plaintiffs, v. SY-BEE CONTRACTING CO. INC. Third Third-Party Defendant |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 10/07/2022, 10/07/2022, 10/14/2022.
PRESENT: HON. DAVID B. COHEN, Justice.
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 198 199,200,201,202,203,204, 205,206,207,208,209,210,211, 212, 213, 214 were read on this motion to/for SUMMARY JUDGMENT AFTER JOINDER.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163,246,247,248,249,250,251,252,253,271, 274, 275, 276, 277, 278, 287, 288 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 215, 216, 217, 218, 219, 220, 221,222, 223, 224, 225, 226, 227, 228, 229, 230, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 254, 255, 256, 257, 258, 259, 260, 261,262, 263, 264, 265, 266, 267, 268, 269, 270, 279, 280, 281,282, 283, 284, 285, 286 were read on this motion to/for JUDGMENT - SUMMARY. Motion sequence nos. 003, 004 and 005 are consolidated for disposition.
This personal injury action arises out of an incident that occurred on September 24, 2018, when a metal armature plate detached from an electromagnetic door locking system and fell, striking plaintiff Elizabeth Ansbro.
In motion sequence no. 003, defendant/second third-party/third-third party plaintiff 666 Fifth Associates LLC (Fifth) and defendant/third-party/second-third-party/third third-party plaintiff BSREP III Nero LLC (BSREP), incorrectly sued in the main action as Brookfield Real Properties, LLC, move, pursuant to CPLR 3212, for summaiy judgment dismissing the complaint and all cross claims against them and for conditional summary judgment on their cross claims for contribution and indemnity against defendants Clune Construction Company, L.P. (Clune) and S&J Entrance &Window Specialist, Inc. (S&J). Clune opposes the motion.
In motion sequence no. 004, plaintiff moves, pursuant to CPLR 3212, for partial summary judgment on liability on her Labor Law § 200 and common-law negligence claim against Clune and S&J and for an order directing an assessment of damages. Clune and S&J oppose the motion.
In motion sequence no. 005, Clune moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and the cross claims asserted against it and for conditional summary judgment on its cross claims for contribution and indemnity against S&J. Plaintiff, Fifth, BSREP and S&J oppose the motion, and S&J cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against it. Plaintiff, Fifth and BSREP oppose and Clune partially opposes the cross motion.
The following facts are taken from the parties' statements and counterstatements of material facts and are undisputed unless otherwise noted.
Fifth owns the building and land located at 666 Fifth Avenue, New York, New York. Nonparty Vomado Realty Trust (Vomado) served as Fifth's property manager for the building from June 1 2018 to August 2, 2018.
Pursuant to a written lease dated October 26, 2010, Fifth, as landlord, leased the entire sixteenth and seventeenth floors and certain below grade space (premises) in the building to third-party defendant Schiff Hardin LLP (Schiff), as tenant, for a 10-year term (the Schiff Lease). Plaintiff was employed by Schiff as an office service coordinator.
In August 2018, BSREP leased the building from Fifth and succeeded to Fifth's interests, including the duties, rights and obligations set forth in the Schiff Lease and first amendment of the lease dated December 31, 2013 (NY St Cts Elec Filing [NYSCEF] Doc No. 26, third-party complaint, ¶¶ 15-16). Nonparty Brookfield Properties (USA 2 LLC) (Brookfield) has served as the building's property manager since August 3, 2018. Second third-party defendant Madison Service Corporation (Madison) maintained the building's Class E fire alarm system and assisted tenants with the fire alarm systems in their leased spaces (NYSCEF Doc No. 109, Joseph Varvaro [Varvaro] affirmation, exhibit M, Ralph Rose [Rose] tr at 78; NYSCEF Doc No. 113, Varvaro affirmation, exhibit Q, Tristan Chambers tr at 20).
In February 2018, Schiff hired Clune to remove and replace two existing glass wall panels and one glass-paneled wood door in the elevator lobby on the seventeenth floor. Clune retained S&J under a written subcontract dated May 3, 2018 (the S&J Subcontract) whereby S&J would provide "all labor, material, equipment and supervision necessary to complete the Glass work" at the premises (NYSCEF Doc No. 187, Janine Mastellone [Mastellone] affirmation, exhibit S). S&J proposal no. 23647 contained additional details and specified that S&J would supply and install back-painted glass panels and a tempered all-glass door (NYSCEF Doc No. 116, Varvaro affirmation, exhibit T).
The wood door was located across from the main entrance to Schiffs office space on the seventeenth floor (NYSCEF Doc No. 108, Varvaro affirmation, exhibit L, plaintiff tr at 66). The door was equipped with a surface-mounted magnetic door lock system. The magnetic portion of the lock was secured to the top of the door frame. A plastic case or sleeve housed a metal armature plate; both were secured with bolts to the top of the door - two for the case and one for the plate. When the door was in a closed position, the magnetic lock on the door frame and the metal plate on the door "go together and keep the ... door ... closed" (NYSCEF Doc No. 110, Varvaro affirmation, exhibit N, John Tozour [Tozour] tr at 32).
Foam sat between the case and the plate to mask the sound of metal striking plastic when the plate and the magnet came into contact (NYSCEF Doc No. 111 at 53-55 and 86). Eric Blinder, S&J's project manager, explained that a "swivel bolt" held the plate to the case and allowed the plate to "teeter" when it came into contact with the magnetic lock for a better connection (id. at 53-55). To gain access to Schiffs space from the elevator lobby, one had to touch a card to a card reader affixed to a glass panel next to the door to disengage the lock. To exit Schiffs space, one had to press a button affixed to the wall next to the door to disengage the lock (NYSCEF Doc No. 108 at 83).
S&J completed the work in June 2018 (NYSCEF Doc No. 111 at 34-35). Before the panels could be removed, Madison disconnected a speaker strobe affixed to one of the panels from the building's fire alarm system (NYSCEF Doc No. 110 at 80; NYSCEF Doc No. 113 at 26-27). Schiffs security vendor disconnected and removed the card reader (NYSCEF Doc No. 213, Varvaro affirmation, exhibit Z, James Kinney [Kinney] tr at 21-22). The speaker strobe and card reader were reattached and reconnected after the new panels were installed.
The existing magnetic locking system was reused and installed on the new door. Blinder testified that he was not aware of who manufactured the lock or when it was first installed on the wood door, and he told Clune the lock could be reused if there were no prior issues with it (id. at 24 and 41). S&J employees removed the case and plate from the wood door, attached them to a steel-clad aluminum rail on the glass door with the same threaded bolts, and installed the case and plate in the same position they had been installed previously (NYSCEF Doc No. 111 at 3638, 40 and 63-64). Regarding the installation, Blinder stated, "we drill the hole, then we take a machine thread cap and cap the hole, and then the bolt threads into same hole" (id. at 71). Blinder testified that S&J did not inspect the bolts before reusing them, but "[t]hey looked fine" (id. at 39). There were no changes made to the door frame itself, and the magnet attached to the door frame was not moved (NYSCEF Doc No. 110 at 37 and 39).
Plaintiff testified that the new door was installed on a Saturday in June, and the following Monday, she noticed the door wobbled and made a "wah-wah-wah-wah-wah" noise when she opened it (NYSCEF Doc No. 108 at 112 and 115), seemingly from the top of the door (id. at 305). The same day Plainti...
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