Lettiere v. Nameloc Estates Inc.
| Decision Date | 19 July 1976 |
| Citation | 53 A.D.2d 899,385 N.Y.S.2d 629 |
| Parties | Mary LETTIERE, as administratrix, etc., Plaintiff-Respondent, v. NAMELOC ESTATES INC., Defendant, Bing and Bing, Inc., Defendant-Respondent, and Martin Elevator Co., Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lester, Schwab, Katz & Dwyer, New York City (James J. Harrington and Patrick A. Lyons, New York City, of counsel), for appellant.
O'Hagan, Reilly & Trecartin, New York City (John E. Trecartin, New York City, of counsel), for defendant-respondent.
Meltzer & Frost, New York City (Abraham W. Sereysky, New York City, of counsel), for plaintiff-respondent.
Before MARTUSCELLO, Acting P.J., and COHALAN, DAMIANI, SHAPIRO and TITONE, JJ.
MEMORANDUM BY THE COURT.
In a wrongful death action, defendant Martin Elevator Co., Inc. (Martin) appeals, as limited by its brief, from so much of a resettled judgment of the Supreme Court, Kings County, entered March 18, 1975, as, upon a jury verdict, (1) is in favor of plaintiff and against it and (2) dismissed its cross complaint against defendant Bing and Bing, Inc. (Bing).
Resettled judgment reversed insofar as appealed from, on the law, cross complaint reinstated, and new trial ordered, as between plaintiff and Martin in the main action, and on the cross complaint, with costs to abide the event.
On December 4, 1968, plaintiff's decedent, employed as an elevator operator at the apartment building at 400 East 58th Street in the Borough of Manhattan, fell from the lobby floor into the elevator shaft. He sustained injuries resulting in his death. Mr. Loeb, a tenant, testified that decedent had taken the witness and his wife from an upper floor to the lobby floor; that the Loebs left the elevator, as did the decedent; that Mr. Loeb placed in envelope in the mail chute; that when he turned around he saw decedent step backward to the elevator; and that the elevator doors were open, but the elevator itself was ascending with no one in it. He saw decedent lose his balance; as he was falling he took hold of the greasy cables suspended beneath the cab and disappeared as the cab moved up. Mr. Loeb ran to the service elevator to call for help. He then heard the thud of a body striking the bottom of the elevator pit.
Suit was instituted against the managing agent, Bing, and Martin. (The owner, Nameloc Estates, Inc., although named in the action, was not served.) Martin is an elevator maintenance company chosen by Bing to service the elevators at the building, But only upon specific request made by Bing.
At the close of the plaintiff's case, in connection with its motion to dismiss, counsel for Bing pointed out that since decedent was 'factually and structurally an employee of Bing & Bing', the sole remedy as against Bing was pursuant to the Workmen's Compensation Law. The court dismissed the complaint as against Bing for that reason; no appeal has been taken from that determination.
On July 10, 11 and 12, 1968 (some five months prior to the accident), pursuant to request therefor, Martin made an extensive repair of the malfunctioning brakes of the subject elevator. Thereafter, on July 31, August 5 and September 16, 1968 Martin performed services thereon pursuant to calls from Bing, but not specifically related to the spontaneous rising of the elevator.
It is to be noted that the tenant, Mr. Loeb, testified that the elevator 'would rise unattended (s)o frequently that it (was) probably the biggest topic of conversation among all us tenants'. On the other hand, Anita Kuck, employed by Bing as the manager of the subject building, deposed (in an examination before trial read into the record) that she had used that elevator about 50 times in 1968 and had received no complaints about it from tenants or elevator operators. Further, Peter Potaris, Bing's maintenance supervisor, deposed that he had been on the elevator about 10 times in 1968 but had observed no 'slipping'. Although he had inquired of the operator on those occasions, he had been told of no complaints.
On August 22, 1968 Martin wrote to Bing stating that to 'insure safe operation of the elevators' the door closers and checks of specified floors (including that of the lobby floor of the subject elevator) 'should be taken care of immediately', and set forth the proposed cost thereof. By separate letter of the same date Martin recommended to Bing that all interlocks be put in proper working order. Nevertheless no purchase order was received for the recommended work.
Viktor Panker, an elevator mechanic employed by Martin, testified that in November, 1968, two weeks before the accident, he met Miss Kuck while he was working in another building, and that When he arrived there he asked for Mr. Peck, the building superintendent. Mr. Panker then testified as follows:
'I was advised he is downstairs in the basement, in the motor room. I walked down and I found Mr. Peck sitting on a milk box in the front of the motor room and installing new contacts on the controller. * * * I said hello to him. He said, 'What the hell are you doing here?' I said, 'I was instructed by Miss Kuck to come over here, the car was jumping.' He told me, He instructed the operator in the car to go ahead. The operator operated the elevator and he said, 'That's it, we don't need you no more.' I said, 'Are you sure you don't want me to check the elevator?' He said, 'No, you see yourself the car is running.' I said, 'Okay,...
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Lettiere v. Martin Elevator Co., Inc.
...claim should be reinstated, and ordering a new trial due to certain errors in the Judge's charge to the jury (Lettiere v. Nameloc Estates, 53 A.D.2d 899, 385 N.Y.S.2d 629). At the opening of the second trial the plaintiff and Martin settled the claim between them for $250,000, on a concessi......