Hosein v. CDL W. 45TH St., LLC, Index No. 306671/2012
| Citation | 2015 NY Slip Op 32470 (U) |
| Decision Date | 03 December 2015 |
| Docket Number | Index No. 306671/2012 |
| Court | United States State Supreme Court (New York) |
| Parties | SEETA HOSEIN, JAMEEL HOSEIN, BELKIS MORALES, CLAIRE BAPTISTE, SHAVONNE TUBBS, KEM WILLIAMS, JACQUELINE THOMAS, FRANCIS THOMAS, CHANDRALAYKA DHANNA, SURENDRANAUTH DHANESAR, LYNETTE BASCOM and MAURICE BASCOM, Plaintiffs, v. CDL WEST 45TH STREET, LLC, FUJITEC AMERICA, INC. ROBERT FITZGERALD and SEAN KENNEDY, Defendants. |
DECISION AND ORDER
PRESENT: Hon. Lucindo Suarez
Upon the notice of motion dated April 27, 2015 of defendant CDL West 45th Street, LLC and the affirmation, affidavit and exhibits submitted in support thereof; plaintiffs' notice of cross-motion dated June 24, 2015 and the affirmation, exhibits and memorandum of law submitted in support thereof; the affirmation in opposition dated July 13, 2015 of defendant Fujitec America, Inc. and the affidavit and exhibits submitted therewith; the affirmation in opposition dated July 20, 2015 of defendant Fujitec America, Inc. and the exhibits submitted therewith; plaintiffs' affirmation in reply dated September 23, 2015 and the affidavit and exhibits submitted therewith; the affirmation in opposition dated September 30, 2015 of defendant CDL West 45th Street, LLC; plaintiffs' affirmation in reply dated October 8, 2015 and the exhibits submitted therewith; the affirmation in reply dated October 14, 2015 of defendant CDL West 45th Street, LLC; the affirmation in sur-reply dated October 20, 2015 of defendant Fujitec America, Inc. and the affidavit and exhibits submitted therewith; the affirmation in sur-reply dated October 29, 2015 of defendant Fujitec America, Inc.; and due deliberation; the court finds:
Plaintiffs are occupants of an elevator that suddenly dropped several floors from the thirty-first floor in a hotel. Given the plaintiffs' differing testimony, the drop was anywhere from six to ten floors. Defendant owner CDL West 45th Street, LLC ("CDL") moves for summary judgment on its cross-claims against the elevator maintenance contractor, defendant Fujitec America, Inc. ("Fujitec"), for common-law and contractual indemnification.
The evening before plaintiffs' accident, the subject elevator was taken out of service and repairs made due to what the responding Fujitec mechanic characterized as "clipping," where contact occurs during travel between the car and the interlock assembly on the hoistway doors (the outer doors found on each individual floor), which causes an abrupt electrical shutdown of the car. The responding mechanic found that clipping occurred on the second and sixteenth floors. He adjusted the clutch on the elevator and the pickup roller assemblies on the second and sixteenth floors and returned the elevator to service. When he responded to the subject occurrence the next day, he determined that clipping had occurred at floor levels somewhere "in the twenties" and adjusted the assemblies on those floors.
The party seeking contractual indemnification must establish that it was not negligent and that the indemnification provision applies. See Aleman v. RFR/SF State St., LP, 2011 NY Slip Op 32323(U) (Sup Ct N.Y. County Aug. 19, 2011). "[The party] seeking [common-law] indemnity must prove not only that it was not guilty of any negligence . . . but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law." Correia v. Professional Data Mgmt., Inc., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596, 600 (1st Dep't 1999).
As to CDL's negligence, "[a]n owner of property has a nondelegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others." Fuller-Mosley v. Union Theol. Seminary, 10 A.D.3d 529, 530, 782 N.Y.S.2d 16, 18 (1st Dep't 2004); see also Rogers v. Dorchester Associates, 32 N.Y.2d 553, 300 N.E.2d 403, 347 N.Y.S.2d 22 (1973). "A plaintiff alleging injury caused by a dangerous condition must show that the defendant either created the condition . . . or failed to remedy it, despite actual or constructive notice thereof . . . [and] that the defendant's negligence was a proximate cause of the injuries." Haseley v. Abels, 84 A.D.3d 480, 482, 922 N.Y.S.2d 393, 395 (1st Dep't 2011) (citations omitted). The fact that the owner may have contracted responsibility for maintenance to another entity does not relieve a plaintiff of the obligation of demonstrating the owner's actual or constructive notice of the alleged defective condition and failure to remedy. See Camaj v. East 52nd Partners, 215 A.D.2d 150, 626 N.Y.S.2d 110 (1st Dep't 1995). Therefore, CDL has the initial burden of demonstrating that it did not create the condition or have actual or constructive notice of it. See Ceron v. Yeshiva Univ., 126 A.D.3d 630, 7 N.Y.S.3d 66 (1st Dep't 2015).
There is no serious argument that CDL created the condition. There is also no evidence of CDL's notice, actual or constructive, of "clipping" in the subject elevator until approximately twelve hours before plaintiffs' accident. The records demonstrate that CDL notified Fujitec of the need for maintenance on the evening before plaintiffs' accident, see Isaac v. 1515 Macombs, LLC, 84 A.D.3d 457, 922 N.Y.S.2d 354 (1st Dep't), lv denied, 17 N.Y.3d 708, 954 N.E.2d 1178, 930 N.Y.S.2d 552 (2011), and that Fujitec repaired the problem and returned the elevator to service. CDL has demonstrated the lack of active negligence on its part and that Fujitec undertook comprehensive responsibility for repair and maintenance of the elevator. See Linares v. Fairfield Views, Inc., 647 N.Y.S.2d 194, 231 A.D.2d 418 (1st Dep't 1996), lv denied, 89N.Y.2d 978, 678 N.E.2d 1351, 656 N.Y.S.2d 735 (1997).
CDL relies on the mechanic's testimony that the condition was a "recurring" one. It is apparent from the mechanic's testimony that the "recurrence" to which he refers are the two instances of clipping occurring within approximately twelve hours of each other, the second being that claimed to have caused the subject accident. A "recurring condition" subjecting a landowner to liability and relieving the plaintiff of the burden of proving actual notice must be "a dangerous recurring condition that was routinely left unaddressed by defendant." Alamo v. New York City Hous. Auth., 118 A.D.3d 484, 484, 987 N.Y.S.2d 139, 139 (1st Dep't 2014) (emphasis added); Tompa v. 767 Fifth Partners, LLC, 113 A.D.3d 466, 979 N.Y.S.2d 288 (1st Dep't), lv denied, 24 N.Y.3d 903, 995 N.Y.S.2d 711, 20 N.E.3d 657 (2014). The proof here demonstrates that there was no notice of clipping until the evening before the accident, the condition was confined to the second and sixteenth floors, CDL promptly notified Fujitec of the condition, and the condition was promptly addressed and corrected by Fujitec upon discovery.
As to the applicability of the indemnification provision between CDL and Fujitec, the 2006 Elevator Full Preventative Maintenance Agreement1 contains the following provision:
[Fujitec] agrees to indemnify and hold [CDL] . . . harmless for losses, liabilities, claims or damages . . . related to any act or failure to act by [Fujitec] or in any way to the provision of the Services or the equipment to [CDL] . . . except to the extent such liabilities are the result of the negligence or willful misconduct of the Owner.
As CDL demonstrated that it was not negligent, and as Fujitec assumed a comprehensive duty to service and maintain the elevators under the Agreement, CDL's liability arises solely as a function of its non-delegable duty to maintain the premises. See Camaj, supra; Linares, supra. Thus, CDL is entitled to conditional summary judgment on its cross-claim against Fujitec forcontractual indemnification, even in advance of any affirmative finding with respect to Fujitec's negligence. See Ortiz v. Fifth Ave. Bldg. Assocs., 251 A.D.2d 200, 674 N.Y.S.2d 360 (1st Dep't 1998), rearg denied, 1998 N.Y. App. Div. LEXIS 11458 (1st Dep't Oct. 20, 1998).
Fujitec argues that the Agreement did not cover the initial installation of the clutch, because such installation was governed by the separate 2011 Proposal. Even if this is true, the 2011 Proposal for the installation of the clutches also contained an indemnification provision:
[Fujitec] shall indemnify [CDL] from liability attributable to injury to persons or damage to property caused by this work, but only if and to the extent such liability results from the negligence of [Fujitec].
In any event, after the initial installation of the clutch, the clutch became a part of the elevator capable of being "adjusted" or "repaired" pursuant to the Emergency Call-Back Service provisions of the Agreement, like any other component of the elevator. The servicing performed the evening before the accident was categorized as "operational callback" in Fujitec's maintenance records. Therefore, whether the accident may be attributed to a deficiency in the installation of the clutch or the maintenance of the elevator, an indemnification provision applies in favor of CDL. Fujitec failed to raise an issue of fact as to the scope of its maintenance responsibilities or CDL's negligence.
As to Fujitec's negligence, CDL relies in part on deposition testimony of the mechanic, purportedly admitting negligence. The testimony responded to a hypothetical question about failing to perceive an elevator clearance issue, and thus cannot constitute an admission. The mechanic did not "'manifest[] an adoption or belief in the truth of plaintiffs' hypothetical, Bondy & Schloss v. Strategic Dev. Partners LLC, 82 A.D.3d 615, 615, 918 N.Y.S.2d 722, 723 (1st Dep't 2011), citing Addo v. Melnick, 61 A.D.3d 453, 877 N.Y.S.2d 261 (1st Dep't 2009), as elsewhere he testified he believed his repairs the day before the accident to be appropriate and adequate.
Furthermore, the...
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