Looney v. Macy's Inc., 16-CV-04814 (DG) (MMH)
| Docket Number | 16-CV-04814 (DG) (MMH) |
| Decision Date | 08 December 2021 |
| Parties | Dolores LOONEY, Plaintiff, v. MACY'S INC. and Thyssenkrupp Elevator Corporation, Defendants. Macy's Inc., Cross Claimant, v. Thyssenkrupp Elevator Corporation, Cross Defendant. Thyssenkrupp Elevator Corporation, Cross Claimant, v. Macy's Inc., Cross Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Laurence D. Rogers, Sackstein, Sackstein & Lee, LLP, Valley Stream, NY, F. Jason Kajoshaj, Mallilo & Grossman, Flushing, NY, Michael J. Taub, Sackstein Sackstein & Lee, llp, Garden City, NY, Michael H. Zhu, Michael H. Zhu, P.C., New York, NY, William C. Mahlan, Jr., Sackstein, Sackstein & Lee, LLP, Garden, NY, for Plaintiff.
Robert N. Dunn, Lester Schwab Katz & Dwyer, LLP, New York, NY, for Cross Claimant/Cross Defendant Macy's Inc.
Paul M. Tarr, Robert N. Dunn, Lester Schwab Katz & Dwyer, LLP, New York, NY, for Defendant Macy's Inc.
Bruce M. Young, Karen Lee Wagner, Babchik & Young, LLP, White Plains, NY, for Thyssenkrupp Elevator Corporation.
On July 21, 2016, Plaintiff Dolores Looney commenced this negligence action in New York Supreme Court, New York County, against Defendants Macy's Inc. ("Macy's") and Thyssenkrupp Elevator Corporation ("Thyssenkrupp") (collectively, "Defendants"). See generally Complaint ("Compl."), ECF No. 4 at 5-18. Plaintiff claims to have suffered personal injuries while descending an escalator in a Macy's store in the Queens Center Mall in Queens County, New York, as a result of Defendants’ negligence. See Compl. ¶¶ 49-64.1 The case was removed to this Court on August 29, 2016. See ECF No. 1. Subsequently, Macy's and Thyssenkrupp brought crossclaims against one another for contribution and indemnification. See Macy's’ Answer to Complaint ¶¶ 69-72, ECF No. 7; Thyssenkrupp's Amended Answer to Complaint ¶¶ 12-15, ECF No. 11.
Pending before the Court are Macy's’ motion for summary judgment, see Macy's’ Motion for Summary Judgment, ECF No. 68; Macy's’ Memorandum of Law in Support of Macy's’ Motion for Summary Judgment ("Macy's’ Br."), ECF No. 68-23; Macy's’ Reply in Support of Macy's’ Motion for Summary Judgment ("Macy's’ Reply"), ECF No. 69, and Thyssenkrupp's motion for summary judgment, see Thyssenkrupp's Motion for Summary Judgment, ECF No. 70; Thyssenkrupp's Memorandum of Law in Support of Thyssenkrupp's Motion for Summary Judgment ("Thyssenkrupp's Br."), ECF No. 70-22; Thyssenkrupp's Reply in Support of Thyssenkrupp's Motion for Summary Judgment ("Thyssenkrupp's Reply"), ECF No. 72. In their respective motions, Macy's and Thyssenkrupp each seeks dismissal of Plaintiff's negligence claim against it, pursuant to Federal Rule of Civil Procedure 56. See Macy's’ Br. at 1; Thyssenkrupp's Br. at 1. Plaintiff opposes both motions. See Plaintiff's Memorandum of Law in Opposition ("Pl.’s Br."), ECF No. 73.2 Each party has filed a Statement of Material Facts on Motion for Summary Judgment pursuant to Local Civil Rule 56.1 (" Rule 56.1 Statement"). See Macy's’ Statement of Facts Pursuant to Local Rule 56.1 ("Macy's’ 56.1"), ECF No. 68-1; Thyssenkrupp's Statement of Facts Pursuant to Local Rule 56.1 ("Thyssenkrupp's 56.1"), ECF No. 70-1; Plaintiff's Rule 56.1 Counterstatement of Material Facts ("Pl.’s 56.1"), ECF No. 73-1.
For the reasons set forth below, the Court grants Defendants’ motions for summary judgment.
Unless otherwise indicated, the following facts are undisputed or described in the light most favorable to Plaintiff, the non-moving party.3
Plaintiff claims that, on March 28, 2015, she had an accident while descending an escalator in a Macy's store in the Queens Center Mall. Pl.’s 56.1 ¶¶ 1, 3; Macy's’ 56.1 ¶ 1; Thyssenkrupp's 56.1 ¶ 1.4 Specifically, Plaintiff claims that, as she reached the bottom of the escalator, she attempted to step off but could not do so because her left shoe got caught under the "teeth" of the escalator. See Pl.’s 56.1 ¶¶ 8-9; Macy's’ 56.1 ¶ 1; see also Thyssenkrupp's 56.1 ¶ 1.
By "teeth," Plaintiff appears to refer to the escalator's comb plate or plates, or portions thereof. See Macy's’ 56.1 ¶¶ 1-2, 4; Thyssenkrupp's 56.1 ¶ 8; see also Pl.’s Br. at 1-2; Pl.’s 56.1 ¶ 37. The subject escalator was equipped with either a comb plate or sections of comb plates at its base. Pl.’s 56.1 ¶¶ 37-38; Macy's’ 56.1 ¶ 4; Thyssenkrupp's 56.1 ¶ 8. Comb plates at the bottom of an escalator allow for a smooth transition off the escalator. Pl.’s 56.1 ¶ 37; see Macy's’ 56.1 ¶ 4; Thyssenkrupp's 56.1 ¶ 8. If something gets caught underneath an escalator's comb plate – or in its "teeth" – then the entire escalator should shut off. Pl.’s 56.1 ¶ 37; Thyssenkrupp's 56.1 ¶ 8.
Plaintiff claims that her foot remained stuck in the escalator's teeth until "it reached the buckle of [her] shoe," at which point the escalator suddenly stopped, causing Plaintiff to be thrown to the ground. Pl.’s 56.1 ¶ 9; see Macy's’ 56.1 ¶ 3; Thyssenkrupp's 56.1 ¶¶ 1, 31 & n.3.5
When the incident occurred, there was no one directly in front of or behind Plaintiff on the subject escalator. Pl.’s 56.1 ¶ 5; Macy's’ 56.1 ¶ 2. Certain of the parties appear to dispute whether Plaintiff was looking directly ahead when the incident occurred. Compare Pl.’s 56.1 ¶ 7, with Thyssenkrupp's 56.1 ¶ 25. Plaintiff testified that, as she was approaching the bottom of the escalator and right before she was going to get off the escalator, she did not observe anything unusual or out of the ordinary at the bottom of the escalator. Thyssenkrupp's 56.1 ¶ 28; see also Macy's’ Ex. M at 99. Prior to being thrown from the escalator, Plaintiff did not hear any sounds coming from the subject escalator. Pl.’s 56.1 ¶ 11; see Thyssenkrupp's 56.1 ¶ 27; see also Macy's’ 56.1 ¶ 27. Plaintiff never saw smoke coming from the escalator as she descended the escalator. Thyssenkrupp's 56.1 ¶ 26.
Macy's employs Visual Security Officers ("VSOs") at the Queens Center Mall Macy's store. Pl.’s 56.1 ¶ 13; see Macy's’ 56.1 ¶ 6; Thyssenkrupp's 56.1 ¶ 12. VSOs are responsible for, among other things, checking the store's escalators in the morning before turning them on with a key. See Pl.’s 56.1 ¶ 18; Macy's’ 56.1 ¶ 6; Thyssenkrupp's 56.1 ¶ 12. These inspections are performed daily. Macy's’ 56.1 ¶ 6; Thyssenkrupp's 56.1 ¶ 12; see also Pl.’s 56.1 ¶ 18. As part of these inspections, VSOs check for anything stuck in between the escalators and make sure that there is no broken comb plate on the escalators. Pl.’s 56.1 ¶ 18; Macy's’ 56.1 ¶ 7; see also Thyssenkrupp's 56.1 ¶¶ 13, 15. If a VSO finds an issue with an escalator, including certain issues with respect to the escalator's comb plate or plates, or comb plate teeth, the VSO will not turn on the escalator. See Macy's’ 56.1 ¶ 7; Thyssenkrupp's 56.1 ¶ 17; Pl.’s 56.1 ¶ 18; Macy's’ Ex. P at 30-31, ECF No. 68-18. If two or more comb teeth are broken, then the unit would be taken out of service and the comb plate replaced. Pl.’s 56.1 ¶ 20; Thyssenkrupp's 56.1 ¶ 15; see also Macy's’ Ex. P at 31-32. Upon seeing a broken comb plate, a VSO would notify Macy's’ detectives and human resources, who would then contact an outside contractor to have the problem addressed. See Pl.’s 56.1 ¶ 19; see also Macy's’ 56.1 ¶¶ 7, 9; Macy's’ Ex. P at 27-29. One of Macy's’ VSOs, Jennifer Davis, indicated in deposition testimony that she would usually notice a broken comb plate approximately once a week. See Pl.’s 56.1 ¶ 20; Macy's’ Ex. P at 30.
VSOs record the results of their inspections in a logbook. Macy's’ 56.1 ¶ 7; Thyssenkrupp's 56.1 ¶ 16; see also Pl.’s 56.1 ¶ 18. If a VSO finds something stuck in an escalator, or a broken comb plate, the VSO notes that condition in the logbook. Macy's’ Ex. P at 27-28; Macy's’ 56.1 ¶ 7; Thyssenkrupp's 56.1 ¶ 15. If there are no issues with the escalator preventing the VSO from turning it on, the VSO initials the logbook for that day. Thyssenkrupp's 56.1 ¶ 17.
According to the logbook for March 2015, there were no problems with the subject escalator noted from March 1, 2015 through March 28, 2015, including on the date of the incident. Macy's’ 56.1 ¶ 10; see Thyssenkrupp's 56.1 ¶ 18.
At all relevant times, Thyssenkrupp held certain responsibilities with respect to the maintenance, repair, and replacement of the subject escalator. Macy's’ 56.1 ¶ 11; see also Thyssenkrupp's 56.1 ¶ 22.
Thyssenkrupp would, on occasion, perform preventative maintenance work on the subject escalator. See Pl.’s 56.1 ¶¶ 31, 35; Macy's’ 56.1 ¶¶ 14, 16; Thyssenkrupp's 56.1 ¶ 22. This preventative maintenance was recorded in a service and maintenance log. Pl.’s 56.1 ¶ 35; Macy's’ 56.1 ¶ 16; see also Thyssenkrupp's 56.1 ¶ 22. This log indicates that, in the three-month period leading up to the March 28, 2015 incident, Thyssenkrupp performed 15 minutes of preventative maintenance on the subject escalator on February 10, 2015 and 40 minutes of preventative maintenance on the subject escalator on March 26, 2015 (i.e. , two days before the incident). Macy's’ 56.1 ¶ 16; see also Thyssenkrupp's 56.1 ¶ 22; Pl.’s 56.1 ¶ 35. With respect to the February 10, 2015 preventative maintenance, the log notes that a service mechanic applied silicone spray to the subject escalator's skirts and "checked combplate teeth," including to see whether any teeth were missing. Pl.’s 56.1 ¶ 39. With respect to the March 26, 2015 preventative maintenance, the log shows that no teeth were missing from the subject escalator on that date, and that there was not "anything wrong" with the escalator's comb plate on that date. See Thyssenkrupp's 56.1 ¶ 23; Macy's’ Ex. Q at 130-32, ECF No. 68-19. The log entry from March 26, 2015 further indicates that, on that date, the subject escalator was "shutdown with 4B fault," that the subject escalator's handrails were checked, and that debris...
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