Ortiz v. Fifth Ave. Bldg. Associates

• Decision Date: 23 June 1998
• Citation: 674 N.Y.S.2d 360,251 A.D.2d 200
• Parties: , 1998 N.Y. Slip Op. 6270 Rudolfo ORTIZ, et al., Plaintiffs, v. FIFTH AVENUE BUILDING ASSOCIATES, and Helmsley Spear, Inc., Defendants-Appellants, Millar Elevator Company, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 360

674 N.Y.S.2d 360

251 A.D.2d 200, 1998 N.Y. Slip Op. 6270

Rudolfo ORTIZ, et al., Plaintiffs, v. FIFTH AVENUE BUILDING ASSOCIATES, and Helmsley Spear, Inc. Defendants-Appellants Millar Elevator Company, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

June 23, 1998.

Susan E. Lysaght, for defendants-appellants.

Moira A. Doherty, for defendant-respondent.

Before SULLIVAN, J.P., and ROSENBERGER, ELLERIN, NARDELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Arber, J.), entered on or about December 10, 1996, denying the motion of defendants Fifth Avenue Building Associates and Helmsley Spear, Inc. (collectively, owner) for summary judgment on their cross-claims against co-defendant Millar Elevator Company, unanimously reversed, on the law, with costs and disbursements, and the motion granted.

Plaintiff claims to have been injured on February 24, 1993 when he fell exiting a mislevelled elevator at 1107 Broadway in New York City. As the record shows, there were no complaints prior to the accident about the workings of the elevator in question. Defendant Millar had entered into an agreement, dated December 18, 1992, with the owner to maintain the building's elevators. This agreement, which was in effect on the day of the accident, contains a provision indemnifying and holding harmless the owner against all damages, including attorney's fees, for bodily injury "caused by the negligence or willful act of [Millar], its agents, employees or subcontractors, or other persons for whose acts [Millar] is liable." After joinder of issue and the apparent completion of discovery, the owner moved for summary judgment on its cross-claim against Millar for contractual indemnification. Conceding its non-delegable duty to maintain the building's elevators in a reasonably safe condition (see, Multiple Dwelling Law § 78; see also, Mas v. Two Bridges Assoc., 75 N.Y.2d 680, 685, 555 N.Y.S.2d 669, 554 N.E.2d 1257), the owner argued that, absent any showing of actual negligence on its part, as is the case here, it is entitled to contractual indemnification from Millar, which, under the exclusive, full-service contract, assumed responsibility for the maintenance, repair, inspection and servicing of the elevators. In opposing the motion, Millar did not take issue with the owner's assertion that it had, through the maintenance contract, "fully delegated all responsibility for maintenance and repair to...