Gutierrez v. Broad Fin. Ctr. LLC
| Decision Date | 09 November 2009 |
| Docket Number | 14501/2004 |
| Court | New York Supreme Court |
| Parties | Esther Gutierrez, Plaintiff, v. Broad Financial Center, LLC and SCHINDLER ELEVATOR CORPORATION, Defendants. |
For Plaintiff;
Matthew J. Fein, Esq.
Pazer, Epstein & Jaffe, P.C.
For Defendant Broad Financial Center, LLC:
Kenneth T. Bierman, Esq.
Callan, Koster, Brady & Brennan, LLP
For Defendant Schindler Elevator Corporation:
James C. De Norscia, Esq.
Upon the notice of motion of defendant Broad Financial Center, LLC dated July 8, 2009 and the affirmation, affidavit and exhibits submitted therewith (Motion Sequence No.5); the affirmation in opposition of plaintiff dated October 1, 2009 and the affidavit and exhibits submitted therewith (Motion Sequence #5 and #6); the reply affirmation of defendant Broad Financial Center, LLC dated October 9, 2009 and the exhibits annexed thereto; the notice of motion of defendant Schindler Elevator Corporation dated July 20, 2009 (Motion Sequence #6); the affirmation in reply of defendant Schindler Elevator Corporation dated October 19, 2009 and the exhibits annexed thereto; and due deliberation; the court finds:
The motion of defendant Broad Financial Center, LLC ("Broad Financial") for summary judgment (Motion Sequence #5) and the motion of defendant Schindler Elevator Corporation ("Schindler") (Motion Sequence #6) for summary judgment are consolidated for decision herein, as both involve common questions of law and fact, and inasmuch as plaintiff submitted one opposition addressing both motions.
In this action to recover monetary damages for personal injuries allegedly sustained by plaintiff on July 25, 2003 after tripping and falling upon exiting elevator #5 because it had not leveled at the same height as the floor upon stopping, defendant building owner Broad Financial moves for summary judgment on the bases that it had no notice of the subject condition and that co-defendant Schindler was responsible for maintenance and repair of the subject elevator pursuant to the Preventive Maintenance Agreement between the two defendants. The agreement also serves as the basis for Broad Financial's motion for summary judgment on its cross-claims and dismissal of Schindler's cross-claims. Schindler moves for summary judgment as well, adopting Broad Financial's arguments with respect to notice. Schindler also moves to dismiss Broad Financial's cross-claims on the basis of the limitations of its obligations under the elevator maintenance agreement.
As to notice of the condition, the maintenance logs of the building and defendants' testimony demonstrated that there had been no prior complaints about elevator #5 failing to stop at floor height, nor had any such problem been reported or repaired. The only entry regarding such failure was recorded upon the happening of plaintiff's accident. Contrary to the strained interpretation of plaintiff, the log entry dated September 25, 2009 reading "same as 7/24/03 " clearly refers to elevator #6, which on neither day experienced a misleveling and which was not involved in plaintiff's accident.
Schindler presented the affidavit of an engineer who had reviewed Schindler's records, including records of regularly performed inspections and repair and maintenance records, and found no entries with regard to misleveling of elevator #5. These records indicate that when Schindler performed preventative maintenance, it would generate a "Service Operations Work Report (Preventive Maintenance)" and then when it responded to specific problems reported to it, it would generate a "Service Operations Work Report (Service Call)." There are no records of Service Call Work Reports regarding elevator #5 misleveling prior to the accident. Both defendants therefore presented sufficient competent evidence to establish a prima facie case of lack of actual or constructive notice of the condition alleged to have caused plaintiff's accident. See Narvaez v. New York City Hous. Auth., 62 AD3d 419, 878 N.Y.S.2d 724 (1st Dep't 2009).
In opposition, plaintiff presented the affidavit of an engineer who did not say that either defendant had any notice of a misleveling problem with the subject elevator, and who addressedthe general overall condition of the elevator, given its maintenance history. Plaintiff's expert did not opine that any faulty condition previously reported and/or repaired would in any way contribute to or cause a misleveling condition, and, in any event, general awareness of dangerous conditions cannot form the basis of a claim of constructive notice of the particular condition alleged to have caused the accident. See Chianese v. Meier, 98 NY2d 270, 774 N.E.2d 722, 746 N.Y.S.2d 657 (2002); Gjonaj v. Otis El. Co., 38 AD3d 384, 832 N.Y.S.2d 189 (1st Dep't 2007).
Plaintiff's expert's affidavit ignored an elevator inspection conducted within one month prior to plaintiff's accident which yielded no violations. Also, plaintiff's expert's conclusion that the failure of a leveling device contact was the competent producing cause of the accident was erroneously premised on the report that Schindler generated when its technician responded to inspect and repair the elevator after plaintiff's accident. The expert, who claimed to have read all deposition transcripts, assumed that the technician's abbreviation of "LD" referred to "leveling device," when in fact the technician had testified that the contact failure found was related to the "level down relay," which is related to door closing and has nothing to do with leveling. While the expert concluded that proper maintenance of the leveling device contact would have prevented the mechanical failure and that failure of the leveling device contact was foreseeable in the absence of appropriate maintenance, the expert did not opine as to what appropriate maintenance consists of and therefore how it would have revealed the condition alleged to have caused the accident, nor that Schindler's maintenance fell below that standard. Finally, the expert's averments regarding plaintiff's lack of negligence and her reasonable expectations were gratuitous legal conclusions not within the expert's knowledge or scope of expertise.See Grullon v. City of New York, 297 AD2d 261, 747 N.Y.S.2d 426 (1st Dep't 2002).
Plaintiff has presented no evidence that the misleveling condition alleged had existed long enough to give defendants an opportunity to discover and remedy it. Nor has plaintiff presented any evidence that either defendant created the condition at issue. Plaintiff therefore failed to raise an issue of fact with respect to notice and causation. See Ianotta v. Tishman Speyer Props., Inc., 46 AD3d 297, 852 N.Y.S.2d 27 (1st Dep't 2007).
Schindler argues in opposition to Broad Financial's motion that it is possible that elevator components not covered by the Preventative Maintenance Agreement could have caused the misleveling which led to plaintiff's accident. Counsel's affirmation, however, is not admissible as evidence. See Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). This argument is furthermore speculative, which is insufficient to raise a triable issue of fact in any event. See Dixon v. Nur-Hom Realty Corp., 254 AD2d 66, 678 N.Y.S.2d 613 (1st Dep't 1998). This argument is furthermore in contravention of Schindler's own records, which diagnosed the condition as involving both a relay and a contact. Pursuant to the agreement between Broad Financial and Schindler, contacts and relays are clearly covered components of a traction elevator such as the one at issue. Regardless of whether or not additional uncovered components may have been involved in causing or contributing to the condition alleged to have caused plaintiff's accident, Schindler remains bound by the fact that the primary diagnosed components are covered under the agreement.
Plaintiff also relies on res ipsa loquitur in opposition to the motions. Even in the absence of a viable cause of action premised on notice of the condition, res ispa loquitur may operate to deprive a defendant of summary judgment. See Ianotta, supra. However, noting the importantdistinction between the cause of the allegedly dangerous condition and the cause of the accident itself, if plaintiff was in any way negligent herself, such negligence could not be attributable to the defendants, and the doctrine would not apply. See Courtney v. Gainsborough Studios, 186 A.D. 820, 174 N.Y.S. 855 (1st Dep't 1919). This would directly defeat the third prong of res ipsa loquitur, that the accident happen through no fault of the plaintiff. See Corcoran v. Banner Super Market, Inc., 19 NY2d 425, 227 N.E.2d 304, 280 N.Y.S.2d 385 (1967), citing Prosser, Torts § 39, at 218 (3d ed).
Here, there is testimony from plaintiff that she was not looking where she was going as she exited the elevator. Accordingly, even though the doctrine has been applied in cases involving the maintenance of elevators, see Kleinberg v. City of New York, 61 AD3d 436, 877 N.Y.S.2d 23 (1st Dep't 2009), and even though the doctrine has been applied where the mechanical components contributing to the accident are beyond the reach of an elevator passenger, see Ianotta, supra, it is not applicable here. By invoking the doctrine, plaintiff merely raises a question of fact as to plaintiff's contribution to the happening of the accident, precluding the application of res ipsa loquitur. See Cortes v. Central El., Inc., 45 AD3d 323, 845 N.Y.S.2d 259 (1st Dep't 2007); Miller v. Schindler Elevator Corp., 308 AD2d 312, 763 N.Y.S.2d 826 (1st Dep't 2003); Sookraj v. Schindler Elevator Corp., 279 AD2d 371, 724 N.Y.S.2d 579 (1st Dep't 2001).
Even though res ipsa loquitur does not apply, a discussion regarding exclusivity is relevant to Schindler's culpability, as "substantial control over maintenance of the elevator [is] sufficient to support an inference of negligence on [the part of the elevator maintenance contractor]...
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