Cole v. Homes for the Homeless Inst., Inc

• Decision Date: 29 March 2012
• Parties: Collin A. COLE, Plaintiff–Respondent, v. HOMES FOR THE HOMELESS INSTITUTE, INC., Defendant–Appellant–Respondent,Brink Elevator Corp., et al., Defendants–Respondents–Appellants,Herk Maintenance Co., Inc., et al., Defendants.Brink Elevator Corp., etc., Third–Party Plaintiff–Respondent–Appellant, v. Homes for the Homeless, Inc., Third–Party Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02383
93 A.D.3d 593
940 N.Y.S.2d 642

Collin A. COLE, Plaintiff–Respondent,
v.
HOMES FOR THE HOMELESS INSTITUTE, INC., Defendant–Appellant–Respondent,Brink Elevator Corp., et al., Defendants–Respondents–Appellants,Herk Maintenance Co., Inc., et al., Defendants.Brink Elevator Corp., etc., Third–Party Plaintiff–Respondent–Appellant,
v.
Homes for the Homeless, Inc., Third–Party Defendant–Appellant–Respondent.

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

March 29, 2012.

[940 N.Y.S.2d 643]

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge (Scott G. Christesen of counsel), for appellant-respondent/appellant-respondent.

Rosenbaum & Taylor, P.C., White Plains (Dara L. Rosenbaum of counsel), for respondents-appellants/respondent-appellant.

MAZZARELLI, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, MANZANET–DANIELS, JJ.

[93 A.D.3d 593] Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered September 27, 2010, which, insofar as appealed from as limited by the briefs, denied defendant Brink Elevator Corp.'s motion for summary judgment dismissing the complaint and all cross claims as against it, and for summary judgment on its third-party claim for contractual indemnification against third-party defendant Homes for the Homeless, Inc. (Homes), and [93 A.D.3d 594] denied the motion of defendant Homes for the Homeless Institute, Inc. (Institute) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff, an employee of Homes, was injured when the elevator he was operating dropped suddenly. When it came to an abrupt stop, the elevator's ceiling collapsed on top of plaintiff. Homes was the tenant in the building, Institute was the owner of the building, and Brink was the company charged with maintaining the elevator pursuant to a contract with Homes.

The court properly declined to dismiss the complaint as against Brink. We recognize that pursuant to the maintenance contract, Brink undertook to “regularly and systematically examine” the elevator and, when in its “judgment conditions warrant, repair or replace” any defective parts. However, the contract also required

[940 N.Y.S.2d 644]

Homes to “shut down the equipment immediately upon manifestation of any irregularity in operation or appearance in the equipment, notify [Brink] at once, and keep the equipment shut down until completion of repairs.”

The record is clear that on the day of the accident Homes' employees...