Bauerlein v. Salvation Army

• Decision Date: 08 June 2010
• Citation: 74 A.D.3d 851,905 N.Y.S.2d 215
• Parties: Karl BAUERLEIN, et al., plaintiffs-respondents-appellants, et al., plaintiff, v. SALVATION ARMY, et al., defendants-respondents-appellants, Alliance Elevator Group, LLC, also known as AEG, LLC, et al., defendant-respondent, Landmark Elevator Consultants, Inc., defendant second third-party defendant-respondent-appellant, et al., defendant, Inclinator Company of America, Inc., defendant second third-party plaintiff-appellant-respondent; Alliance Elevator Company, third-party plaintiff/second third-party defendant-respondent-appellant, P.M. Associates, third-party defendant/second third-party defendant-respondent, et al., third-party defendants; Schindler Group, et al., second third-party defendants-respondents, United Technologies Corporation of New York City, et al., second third-party defendants-respondents-appellants (and an additional third-party action).
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 215

74 A.D.3d 851

Karl BAUERLEIN, et al., plaintiffs-respondents-appellants, et al., plaintiff,

v.SALVATION ARMY, et al., defendants-respondents-appellants,Alliance Elevator Group, LLC, also known as AEG, LLC, et al., defendant-respondent,Landmark Elevator Consultants, Inc., defendant second third-party defendant-respondent-appellant, et al., defendant,

Inclinator Company of America, Inc., defendant second third-party plaintiff-appellant-respondent;

Alliance Elevator Company, third-party plaintiff/second third-party defendant-respondent-appellant,

P.M. Associates, third-party defendant/second third-party defendant-respondent, et al., third-party defendants;

Schindler Group, et al., second third-party defendants-respondents,

United Technologies Corporation of New York City, et al., second third-party defendants-respondents-appellants

(and an additional third-party action).

Supreme Court, Appellate Division, Second Department, New York.

June 8, 2010.

Michael J. Devereaux & Associates, P.C., New York, N.Y., for defendant second third-party plaintiff-appellant-respondent.

Gair, Gair, Conason, Steigman, MacKauf, Bloom & Rubinowitz, New York, N.Y. (Warren J. Willinger and Howard Hershenhorn of counsel), for plaintiffs-respondents-appellants.

Rubin, Fiorella & Friedman LLP, New York, N.Y. (Steward B. Greenspan of counsel), for defendant-respondent-appellant Salvation Army.

Geringer & Dolan LLP, New York, N.Y. (John A. McCarthy of counsel), for defendant-respondent-appellant Alliance Elevator Company, doing business as Unitec Elevator Company, third-party plaintiff/second third-party defendant-respondent-appellant, Alliance Elevator Company, and second third-party defendant United Technologies Corporation of New York City and/or Unitec Elevator Services.

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), for defendant second third-party defendant-respondent-appellant.

LeClair Ryan, New York, N.Y. (Anthony S. McCaskey of counsel), for second third-party defendant-respondent-appellant Sodexho.

MARK C. DILLON, J.P., FRED T. SANTUCCI, ANITA R. FLORIO, and L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, etc., (1) the defendant second third-party plaintiff, Inclinator Company of America, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered November 5, 2008, as denied its motion for summary judgment dismissing the complaint and all counterclaims and cross claims insofar as asserted against it, (2) the plaintiffs Karl Bauerlein and Donna Bauerlein appeal from so much of the same order as denied their motion for summary judgment on the complaint against the defendant Salvation Army and denied their separate cross motion for summary judgment on the complaint against the defendant second third-party defendant, Landmark Elevator Consultants, Inc., (3) the defendant Salvation Army appeals, as limited by its brief, from so much of the same order as denied its separate motions for conditional summary judgment on its cross claim for common-law indemnification against the defendant Alliance Elevator Company, doing business as Unitec Elevator Company, the third-party plaintiff/second third-party defendant, Alliance Elevator Company, and the defendant second third-party defendant, Landmark Elevator Consultants, Inc., (4) the defendant Alliance Elevator Company, doing business as Unitec Elevator Company, and the third-party plaintiff/second third-party defendant, Alliance Elevator Company, appeal, as limited by their brief, from so much of the same order as denied those branches of their cross motion which were to dismiss the complaint insofar as asserted against the defendant Unitec Elevator Services Company, to dismiss the second third-party complaint insofar as asserted against Unitec Elevator Services, the second third-party defendants United Technologies Corporation of New York City and United Technologies Corporation of New York City and/or Unitec Elevator Services Company, and for leave to renew those branches of their motion which were for leave to amend the caption in the main, third-party, and second third-party actionsby deleting Unitec Elevator Services from the caption of the main action, deleting United Technologies Corporation of New York City and United Technologies Corporation of New York City and/or Unitec Elevator Services from the caption of the second third-party action, and substituting the name "Alliance Elevator Company, doing business as Unitec Elevator Company" for the name Alliance Elevator Company in the caption of the main, third-party, and second third-party actions, which had been denied in a prior order dated August 1, 2007, (5) the defendant second third-party defendant Landmark Elevator Consultants, Inc., appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment dismissing the complaint, second third-party complaint, and all cross claims insofar as asserted against it, and (6) the second third-party defendant Sodexho appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment dismissing the second third-party complaint and all cross claims insofar as asserted against it.

ORDERED that the appeal by the defendant Alliance Elevator Company, doing business as Unitec Elevator Company, and the third-party plaintiff/second third-party defendant, Alliance Elevator Company, from so much of the order as denied those branches of their cross motion which were for leave to renew that branch of theirmotion which was for leave to amend the caption in the main action by deleting Unitec Elevator Services from the caption of the main action and substituting the name "Alliance Elevator Company, doing business as Unitec Elevator Company" for the name Alliance Elevator Company in the caption of the main action, and to dismiss the complaint insofar as asserted against Unitec Elevator Company is dismissed as academic, as the plaintiffs Karl Bauerlein and Donna Bauerlein have resolved those branches of the motion pursuant to a so-ordered stipulation of settlement dated June 18, 2009; and it is further,

ORDERED that the order is modified, on the law and the facts, (1) by deleting the provision thereof denying that branch of the motion of the defendant second third-party plaintiff, Inclinator Company of America, Inc., which was for summary judgment dismissing the causes of action of the complaint alleging strict products liability based on defective design and manufacture, negligence, and breach of warranty insofar as asserted against it, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying that branch of the cross motion of the defendant Alliance Elevator Company, doing business as Unitec Elevator Company, and thethird-party plaintiff/second third-party defendant Alliance Elevator Company which was to dismiss the second third-party complaint insofar as asserted against the second third-party defendants United Technologies Corporation of New York City and United Technologies Corporation of New York City and/or Unitec Elevator Services, and substituting therefor a provision granting that branch of the cross motion, (3) by deleting the provision thereof denying the cross motion of the defendant second third-party defendant, Landmark Elevator Consultants, Inc., for summary judgment dismissing the complaint, second third-party complaint, and all cross claims insofar as asserted against it, and substituting therefor a provision granting the cross motion, and (4) by deleting the provision thereof denying the motion of the defendant Salvation Army for conditional summary judgment on its cross claim for common-law indemnification against the defendant Alliance Elevator Company, doing business as United Elevator Company, and the third-party plaintiff/second third-party defendant, Alliance Elevator Company, and substituting therefor a provision dismissing the motion; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant second third-party defendant, Landmark Elevator Consultants, Inc., payable by the plaintiffs Karl Bauerlein and Donna Bauerlein, the defendant Salvation Army, the defendant Alliance Elevator Company, doing business as Unitec Elevator Company, and the third-party plaintiff/second third-party defendant, Alliance Elevator Company.

The plaintiff Karl Bauerlein (hereinafter the plaintiff) allegedly was injured on April 24, 2004, when a "personal residential elevator" called an "elevette" servicing only the 16th and 17th floors of a building owned and operated by the defendant Salvation Army (hereafter TSA), went up to the 17th floor, and then fell back to the 16th floor while he was inside. The plaintiff and his wife, suing derivatively, and Eric Rex commenced this action to recover damages for personal injuries. The...