Fernandez v. Otis El. Co., 2174.

CourtNew York Supreme Court Appellate Division
Writing for the CourtMazzarelli
Citation772 N.Y.S.2d 14,4 A.D.3d 69,2004 NY Slip Op 00480
PartiesJOSE FERNANDEZ, Respondent, v. OTIS ELEVATOR COMPANY, Appellant, et al., Defendant.
Decision Date03 February 2004
Docket Number2174.
4 A.D.3d 69
772 N.Y.S.2d 14
2004 NY Slip Op 00480
JOSE FERNANDEZ, Respondent,
v.
OTIS ELEVATOR COMPANY, Appellant, et al., Defendant.
2174.
Appellate Division of the Supreme Court of the State of New York, First Department.
February 3, 2004.

[4 A.D.3d 70]

Law Office of Laurence J. Sass and Shandell, Blitz, Blitz & Bookson, LLP (Laurence J. Sass and Arthur Blitz of counsel), for respondent.

Geringer & Dolan LLP (John A. McCarthy and Pauline A. Mason of counsel), for appellant.

OPINION OF THE COURT

MAZZARELLI, J.


Plaintiff, a janitor employed by the College of Mount Saint Vincent (the college), was injured when he fell down an elevator shaft in one of the college's dormitories. The elevator had become stuck between the second and third floors of the building. Just prior to the accident, plaintiff alleges he was attempting to close a hoistway door in the shaft of the second floor of the building. Defendant Otis Elevator Company (Otis) asserts that plaintiff was trying to climb out of the elevator by wiggling through an eight-inch opening at his feet.

The elevator was installed in 1923 and had a collapsible, manually operated car gate attached to the elevator car. Each floor also had a manual hoistway door with two separate locks. To open the hoistway door from inside the elevator, the car gate

4 A.D.3d 71

had to first be opened. A bar on the inside of the hoistway door then had to be pulled down, to unlock and allow the door to slide open. It is uncontested that this elevator did not have a toe guard1 or a door restrictor.2

It is also undisputed that the elevator stalled because a "contact" within a device called a reverse phase relay (RPR) malfunctioned. The RPR is part of the elevator controller, and is designed to insure that the correct amount of voltage is supplied to the elevator. When the contact failed, it precluded the flow of electricity, preventing the elevator from moving. The RPR on the elevator at the time of the incident was part of the original 1923 installation, and had never been replaced.

Plaintiff brought this action against Otis and 6300 Riverdale Owner Corp. The claims against Otis allege common-law negligence, strict products liability and failure to warn. 6300 Riverdale Owner Corp. did not appear in the action, and Otis moved for summary judgment. In support of its motion, Otis presented its contract with the college, a type of agreement commonly known as an "oil, grease and survey" contract. The agreement required that Otis regularly conduct service examinations, clean the elevator, lubricate certain components, and make minor adjustments. The replacement of the RPR was not part of Otis's contractual duties. Moreover, the contract did not require Otis to install additional safety devices such as a toe guard.

In further support of the motion, Otis proffered a number of affidavits and excerpts from deposition testimony showing that it had recommended that the college update the elevators. These establish that in 1990, Otis informed the college that the elevator controller needed to be replaced. Otis also submitted a copy of a 1996 proposal for modernization of a number of the elevators at the college. Included too was an affidavit from one of Otis's inspectors stating that on June 13, 2000 he specifically told his supervisor that the RPR in this elevator needed to be

4 A.D.3d 72

replaced. In another affidavit, an Otis maintenance supervisor swore that he discussed both the modernization proposal and the replacement of the RPR with the current and former facilities managers at the college, but that the college would not budget the money needed to modernize the elevators.

In another affidavit, an Otis mechanic recounted that on August 11, 2000, three days before this accident, he responded to a service call that the elevator was stuck between floors. The mechanic adjusted the RPR and cleaned the contacts on it, so that the elevator could operate. He also noted that the RPR was old, worn out, and had to be replaced. He stated that he reported to the director of facilities that he was not sure how long his repair of the old RPR would last, and...

To continue reading

Request your trial
17 practice notes
  • Pasternack v. Lab. Corp. of Am., No. 10 Civ. 4426(PGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 6, 2012
    ...alia, the MRO, based on Coleman and Santiago, or alternatively, under the first prong of the test in Fernandez v. Otis Elevator Company, 4 A.D.3d 69, 73, 772 N.Y.S.2d 14 (1st Dept.2004) (“[A] duty of care to non-contracting third parties may arise ... where the contracting party, in failing......
  • Appel v. Schoeman Updike Kaufman Stern & Ascher L. L.P., 14-cv-2065 (AJN)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 26, 2015
    ...third parties may arise out of . . . contractual obligation[s] or the performance thereof." Fernandez v. Otis Elevator Co., 772 N.Y.S.2d 14, 17 (App. Div. 2004) (citing Espinal v. Melville Snow Contrs., 773 N.E.2d 485 (N.Y. 2002)). These circumstances include:(1) where the contracting party......
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...Snow Contrs., 98 N.Y.2d 136, 140 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80-81 (1st Dep't 2006); Fernandez v. Otis El. Co., 4 A.D.3d 69, 73 (1st Dep't 2004). The record supports the third set of circumstances based on the undisputed evidence of water leaking into plaintiffs' unit D......
  • Pasternack v. Lab. Corp. of America, 10 Civ. 4426 (PGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 6, 2012
    ...alia, the MRO, based on Coleman and Santiago, or alternatively, under the first prong of the test in Fernandez v. Otis Elevator Company, 4 A.D.3d 69, 73 (1st Dept. 2004) ("[A] duty of care to non-contracting third parties may arise . . . where the contracting party, in failing to exercise r......
  • Request a trial to view additional results
17 cases
  • Pasternack v. Lab. Corp. of Am., No. 10 Civ. 4426(PGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 6, 2012
    ...alia, the MRO, based on Coleman and Santiago, or alternatively, under the first prong of the test in Fernandez v. Otis Elevator Company, 4 A.D.3d 69, 73, 772 N.Y.S.2d 14 (1st Dept.2004) (“[A] duty of care to non-contracting third parties may arise ... where the contracting party, in failing......
  • Appel v. Schoeman Updike Kaufman Stern & Ascher L. L.P., 14-cv-2065 (AJN)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 26, 2015
    ...third parties may arise out of . . . contractual obligation[s] or the performance thereof." Fernandez v. Otis Elevator Co., 772 N.Y.S.2d 14, 17 (App. Div. 2004) (citing Espinal v. Melville Snow Contrs., 773 N.E.2d 485 (N.Y. 2002)). These circumstances include:(1) where the contracting ......
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...Snow Contrs., 98 N.Y.2d 136, 140 (2002); Rahim v. Sottile Sec. Co., 32 A.D.3d 77, 80-81 (1st Dep't 2006); Fernandez v. Otis El. Co., 4 A.D.3d 69, 73 (1st Dep't 2004). The record supports the third set of circumstances based on the undisputed evidence of water leaking into plaintiffs' unit D......
  • Pasternack v. Lab. Corp. of America, 10 Civ. 4426 (PGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 6, 2012
    ...alia, the MRO, based on Coleman and Santiago, or alternatively, under the first prong of the test in Fernandez v. Otis Elevator Company, 4 A.D.3d 69, 73 (1st Dept. 2004) ("[A] duty of care to non-contracting third parties may arise . . . where the contracting party, in failing to exerc......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT