Haynes v. Estate of Sol Goldman, 4512.

• Decision Date: 19 May 2009
• Docket Number: 4512.,4511.
• Parties: ROBERT HAYNES, Appellant, v. ESTATE OF SOL GOLDMAN, Deceased, et al., Respondents, et al., Defendant. ALLIANCE ELEVATOR COMPANY, Doing Business as UNITEC ELEVATOR COMPANY, Third-Party Plaintiff-Respondent, v. MOHAMMAD FOFANA, Third-Party Defendant. ROBERT HAYNES, Plaintiff, v. ESTATE OF SOL GOLDMAN, Deceased, et al., Respondents, and NEWMARK & COMPANY REAL ESTATE, INC., Appellant. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 519

880 N.Y.S.2d 609

2009 NY Slip Op 03927

ROBERT HAYNES, Appellant, v. ESTATE OF SOL GOLDMAN, Deceased, et al., Respondents, et al., Defendant.

ALLIANCE ELEVATOR COMPANY, Doing Business as UNITEC ELEVATOR COMPANY, Third-Party Plaintiff-Respondent, v. MOHAMMAD FOFANA, Third-Party Defendant.

ROBERT HAYNES, Plaintiff, v. ESTATE OF SOL GOLDMAN, Deceased, et al., Respondents, and NEWMARK & COMPANY REAL ESTATE, INC., Appellant. (And a Third-Party Action.)

4512.

4511.

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

May 19, 2009.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered August 17, 2007, which granted motions by defendants Estate of Sol Goldman, 41-45 West 34, Midboro Holding Company, Winoker Realty Co. (collectively the Goldman defendants) and Alliance Elevator Company doing business as Unitec Elevator Company sued herein as Unitek/North American Elevator Service for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs. Order, same court and Justice, entered on or about January 18, 2007, which, to the extent appealed from, denied so much of the motion by defendant Newmark & Company Real Estate for summary judgment on its cross claim against Midboro Holding for contractual indemnification, unanimously reversed, on the law, without costs, that portion of the motion granted, and the matter remanded for further proceedings.

On February 6, 2004, plaintiff and another person named Mohammad Fofana were injured when they fell down the freight elevator hoistway from the fourth floor of a building located at 45 West 34th Street. The premises were net leased to Midboro Holding at the time, and had been managed by Newmark. Plaintiff had a dispute with Fofana and the two engaged in a fight in a narrow hallway on the fourth floor. According to Fofana's deposition, plaintiff pushed him into the hoistway door. The complaint alleged negligence on the part of the building's owners, its managing agent and Alliance, the owners' elevator service contractor. Plaintiff testified that the hoistway door opened after Fofana stepped backward and came into contact with it. Plaintiff further swore that Fofana then clutched him in an effort to break his fall, causing both men to fall into the hoistway.

According to the affidavit of Patrick McPartland, P.E., the Goldman defendants' expert, the doors of the manually operated elevator in question consisted of two solid panels. The first panel opened by sliding right to left. The second panel was hinged to the wall. The sliding panel hung from a track by rollers, and was retained at the bottom by a six-inch guide which McPartland described as a "U" channel. Thomas Davies, a supervisor elevator inspector from the New York City Department of Buildings, inspected the site within 80 minutes after the accident. He testified that the sliding panel guide was bent and protruded into the hoistway in a manner indicating that a substantial horizontal force had been exerted against the sliding panel. In examining other parts of the building, Davies recorded loose and missing hanger track bolts which rendered the 12th floor hoistway door ready to fall. Davies's report also noted that the rest of the hoistway doors were loose and poorly secured. McPartland opined that the damage to the guide could only have been caused by the application of the kind of force described by Davies in excess of 250 pounds. McPartland further opined that the applied force caused the sliding panel to swing out into the elevator shaft, creating the opening through which plaintiff and Fofana fell. Bernard Hughes, Alliance's...