Carter v. Nouveau Indus., Inc.

• Decision Date: 07 October 2020
• Docket Number: Index No. 603789/13,2017–07756
• Citation: 187 A.D.3d 702,131 N.Y.S.3d 687
• Parties: Helen CARTER, plaintiff-respondent, v. NOUVEAU INDUSTRIES, INC., et al., defendants, Nouveau Elevator Industries, Inc., defendant third-party plaintiff-appellant; Velis Associates, Inc., third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 702

131 N.Y.S.3d 687

Helen CARTER, plaintiff-respondent,

v.NOUVEAU INDUSTRIES, INC., et al., defendants,

Nouveau Elevator Industries, Inc., defendant third-party plaintiff-appellant;

Velis Associates, Inc., third-party defendant-respondent.

2017–07756

Index No. 603789/13

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

Argued - January 16, 2020

October 7, 2020

Hannum Feretic Prendergast & Merlino, LLC (Sean M. Prendergast and Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY [Jessica M. Erickson ], of counsel), for defendant third-party plaintiff-appellant.

Dell & Dean, PLLC (Mischel & Horn, New York, NY [Scott T. Horn and Lauren E. Bryant ], of counsel), for plaintiff-respondent.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, NY (Randy S. Faust of counsel), for third-party defendant-respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Nassau County (Anna R. Anzalone, J.), entered June 8, 2017. The order, insofar as appealed from, (1) denied the defendant third-party plaintiff's motion for summary judgment dismissing the complaint insofar as asserted against it, (2) granted the third-party defendant's motion for summary judgment dismissing the third-party complaint, and (3) granted that branch of the plaintiff's cross motion which was for leave to amend the complaint to add a products liability cause of action against the defendant third-party plaintiff.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the third-party defendant's motion which were for summary judgment dismissing the causes of action in the third-party complaint for common-law indemnification and contribution, and substituting therefor a provision denying those branches of that motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff by the defendant third-party plaintiff, and one bill of costs payable to the defendant third-party plaintiff by the third-party defendant.

On March 23, 2010, the plaintiff allegedly sustained personal injuries when a panel fell from the wall of an elevator located at North Shore University Hospital (hereinafter the hospital), in Nassau County. The plaintiff commenced this action against, among others, the defendant Nouveau Elevator Industries, Inc. (hereinafter Nouveau), which had been retained to maintain and service the elevators in the hospital. Nouveau commenced a third-party action against Velis Associates, Inc. (hereinafter Velis), which installed the wall panels in the elevator bank where the plaintiff was injured. Nouveau moved for summary judgment dismissing the complaint insofar as asserted against it. Velis moved for summary judgment dismissing the third-party complaint. The plaintiff cross-moved, inter alia, for leave to amend the complaint to add a products liability cause of action against Nouveau. The Supreme Court denied Nouveau's motion for summary judgment dismissing the complaint insofar as asserted against it, granted Velis's motion for summary judgment dismissing the third-party complaint, and granted that branch of the plaintiff's cross motion which was for leave to amend the complaint to add a products liability cause of action against Nouveau. Nouveau appeals.

"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 failure to use reasonable care to discover and correct a condition which it ought to have found" ( Fajardo v. Mainco El. & Elec. Corp., 143 A.D.3d 759, 762, 40 N.Y.S.3d 121 [internal quotation marks omitted] ). "Further, a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons ... where the contracting party has entirely displaced the other party's duty of safe maintenance" ( id. at 762, 40 N.Y.S.3d 121 [internal quotation marks omitted] ). We agree with the Supreme Court's determination denying Nouveau's motion for summary judgment dismissing the complaint insofar as asserted against it. Nouveau failed to demonstrate, prima facie, that it did not owe a duty to the plaintiff in light of the terms of its elevator inspection and maintenance contract (see id. ). Nor did Nouveau demonstrate, prima facie, either that there was no defect in the elevator that it "ought to have found" or that it "use[d] reasonable care to discover" such a defect ( id. [internal quotation marks omitted] ). Accordingly, we agree with the court's determination to deny Nouveau's motion for summary judgment regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

"[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor" ( Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 [internal quotation marks omitted] ). "The duty that forms the basis for the liability arises from the principle that every one is responsible for the consequences of his own negligence, and if another person has been compelled ... to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him" ( id. at 183, 659 N.Y.S.2d 237, 681 N.E.2d 404 [internal quotation marks omitted] ). We disagree with the Supreme Court's determination granting those branches of Velis's motion which were for summary judgment dismissing the causes of action in the third-party complaint for common-law...