Harmon v. Metro. Opera

• Court: New York Supreme Court
• Writing for the Court: ROBERT J. McDONALD
• Citation: Harmon v. Metro. Opera, 38 Misc.3d 1231, 969 N.Y.S.2d 803, 2013 N.Y. Slip Op. 50361 (N.Y. Sup. Ct. 2013)
• Decision Date: 12 March 2013
• Docket Number: No. 2329/2011.,2329/2011.
• Parties: Elaine HARMON and David Harmon, Plaintiffs, v. The METROPOLITAN OPERA, Lincoln Center for the Performing Arts, Inc., New York Elevator and Electrical Corp., and Thyssenkrupp Elevator Corporation, Defendants.

38 Misc.3d 1231

969 N.Y.S.2d 803

2013 N.Y. Slip Op. 50361

Elaine HARMON and David Harmon, Plaintiffs,

v.The METROPOLITAN OPERA, Lincoln Center for the Performing Arts, Inc., New York Elevator and Electrical Corp., and Thyssenkrupp Elevator Corporation, Defendants.

No. 2329/2011.

Supreme Court, Queens County, New York.

March 12, 2013.

OPINION TEXT STARTS HEREROBERT J. McDONALD, J.

The following papers numbered 1 to 21 were read on this motion by defendant, LINCOLN CENTER FOR THE PERFORMING ARTS, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint and all cross-claims asserted against it:

+-----------------------------------------------------------+
                ¦Papers                                          ¦Numbered  ¦
                +------------------------------------------------+----------¦
                ¦Notice of Motion–Affidavits–Exhibits            ¦1–6       ¦
                +------------------------------------------------+----------¦
                ¦Plaintiff's Affirmation in Opposition–Exhibits  ¦7–11      ¦
                +------------------------------------------------+----------¦
                ¦Defendant Thyssenkrupp Affirmation in Opposition¦12–15     ¦
                +------------------------------------------------+----------¦
                ¦Reply Affirmations(2)                           ¦16–21     ¦
                +-----------------------------------------------------------+
                

This is an action for damages for personal injuries allegedly sustained by plaintiff, Elaine Harmon, as a result of a fall on the “Front of House Escalator” at the Metropolitan Opera House located at 70 Lincoln Center Plaza, New York County, New York on February 2, 2008.

The plaintiff commenced an action for negligence against the Metropolitan Opera, Lincoln Center for the Performing Arts, Inc., New York Elevator and Electrical Corp. and Thyssenkrupp Elevator Corporation, by filing a summons and verified complaint on January 31, 2011 and a supplemental summons and complaint on May 23, 2011. Issue was joined by the service of a verified answer by defendants New York Elevator and Electrical Corp. (New York Elevator) and Thyssenkrupp Elevator Corporation (Thyssenkrupp) on February 22, 2011 and by service of an amended answer by Lincoln Center for the Performing Arts (Lincoln Center) on June 17, 2011. Pursuant to the order of this Court dated October 18, 2012 and entered January 14, 2013, the complaint against The Metropolitan Opera was dismissed for lack of personal jurisdiction due to improper service of process. Plaintiff filed a note of issue on June 19, 2012. This case is presently on the calendar of the Trial Scheduling Part for April 25, 2013.

The gravamen of the complaint is while the plaintiff was on an escalator going down to a lower level at the Metropolitan Opera House at Lincoln Center, a handrail malfunctioned on the escalator causing the plaintiff to fall forward and to sustain personal injuries. The plaintiff alleges that Lincoln Center was negligent in the ownership, operation, maintenance, repair and control of the escalator. Plaintiff asserts that Lincoln Center failed to make reasonable inspections of the handrail, failed to remedy the dangerous condition, and permitted the escalator to remain in a dangerous and defective condition. Plaintiff contends that the defective handrail condition existed for such period of time that defendant, in the exercise of due care, should have recognized and remedied it. The plaintiff's bill of particulars also asserts that res ipsa loquitur applies against Lincoln Center

Counsel for defendant, Lincoln Center, now moves for an order granting summary judgment and dismissing the plaintiff's complaint and all cross-claims asserted against it on the ground that Lincoln Center, the owner of the Metropolitan Opera building is an out-of-possession landlord who does not retain control of the premises and is not contractually obligated to perform maintenance and repairs on the escalator in question. Defendant Lincoln Center asserts that it did not create the condition as no employee of Lincoln Center performed any work on the handrails of the escalator, that Lincoln Center did not have actual notice of any problems with the escalator prior to February 2, 2008 and that Lincoln Center did not have constructive notice of the alleged issues with the escalator. Defendant asserts that the lease agreement between the Metroplitan Opera and and Lincoln Center placed responsibility for maintenance and repair of the premises on Metropolitan Opera. Lastly, counsel asserts that res ipsa loquitur does not apply to defendant Lincoln Center as Lincoln Center did not have exclusive control over the escalator in question.

In support of the motion, defendant's counsel, Evy L Kazansky, Esq., submits her own affirmation dated November 1, 2012; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the lease between Lincoln Center and The Metropolitan Opera; copies of the transcripts of the examinations before trial of plaintiff Elaine Harmon and Peter Flamm, director of Operations, Facilities and Public Spaces for Lincoln Center; the affidavit of James Naples, House Manager for the Metropolitan Opera; an elevator preventative maintenance agreement between The Metropolitan Opera and New York Elevator; the retainer agreement between Lincoln Center and Otis Elevator; and a photograph depicting the top of the escalator in question.

In her examination before trial, taken on July 20, 2012, plaintiff, Elaine Harmon, age 89, testified that her accident occurred on Sunday, February 2, 2008 at the Metropolitan Opera House at Lincoln Center, New York. After attending a ballet performance at the New York State Theater, she and her friends walked to the Metropolitan Opera House intending to take the escalator in the Opera House down to the public parking garage. When she got on the escalator she put her left hand on the handrail. About a quarter of the way down, the handrail stopped but the stairs kept moving. As plaintiff held the handrail, her feet were being pulled down the moving stairs causing her to fall backwards. She stated that her legs and back hit the steps and she was bleeding from her right calf. Two security men came, helped her up and took her to the upper level. Her friend's car was brought out to the front of the Opera House and she was driven home. She stated that used that same escalator many times before, it always operated properly, and she never heard of any one else being injured on that particular escalator.

Defendant also submits a transcript of the examination before trial of Peter Flamm, Senior Director for Operations, Facilities and Public Spaces who testified on behalf of Lincoln Center. He did not believe that Lincoln Center has any maintenance responsibility for the escalators within the Metropolitan Opera. He did state that Lincoln Center had a maintenance contract for escalators in the public spaces. He stated that Lincoln Center was responsible for a total of eight escalators on the campus. He stated that Lincoln Center holds a maintenance contract with Otis for specific escalators on the campus which includes escalators that are in the public area. He did not believe that the escalators within the Metropolitan Opera are mentioned in the contract with Otis. He stated that the general services budget for Lincoln Center does include components that relate to areas within the Metropolitan Opera that are called out within the lease with Lincoln Center, however, he stated that they do not include reference to any escalators or elevators within the Metropolitan Opera facility itself. He stated that Lincoln Center maintains three locations within the Opera house pursuant to the lease such as a telecom room, a security changing room, and an area that houses the cooling towers. He stated that Lincoln Center employs engineers who work in the general services department. The engineers for Lincoln Center operate equipment and systems that support the campus and public areas. He stated that to his knowledge, under the terms of the lease, Lincoln Center does not maintain the area in the Metropolitan Opera where the escalator exists or it servicing.

Mr. Flamm, also testified that Lincoln Center is the owner of the Metropolitan Opera building. He stated that there are publicly accessible concourse systems on the campus that are outside of the Metropolitan Opera's operational area that are maintained by Lincoln Center. He stated that there are escalators at Lincoln Center in public areas that are outside of the Metropolitan Opera's responsibilities. He stated that there are eight escalators that are maintained under service contracts for Lincoln Center...