Rawlins v. Shore View Real Estate Holding LLC
| Docket Number | Index No. 514833/16,Mot. Seqs. Nos. 07,08 |
| Decision Date | 13 November 2023 |
| Citation | 2023 NY Slip Op 34076 (U) |
| Parties | ANTHONY RAWLINS, Plaintiff, v. SHORE VIEW REAL ESTATE HOLDING LLC and NOUVEAU ELEVATOR INDUSTRIES, INC., Defendants. And a Third-Party Action. |
| Court | New York Supreme Court |
DECISION AND ORDER
HON WAVNY TOUSSAINT J.S.C.
The following e-filed papers read herein: NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed ___ 128-129, 154-155
Affidavits/ Affirmations in Reply __ 177, 178, 179
Upon the foregoing papers, defendant Shore View Real Estate Holding LLC (Shore LLC) and third-party defendant Shore View Acquisition I, LLC s/h/a Shoreview Nursing Home d/b/a Shore View Nursing and Rehabilitation Center (Shore View) move (Seq. 07), jointly and on behalf of the other, for an order pursuant to CPLR 3212, granting summary judgment dismissing 1) the Complaint of plaintiff Anthony Rawlins (plaintiff); 2) the First, Second and Third crossclaims, for contribution common law indemnification and contractual indemnification, respectively, of defendant/third-party plaintiff Nouveau Elevator Industries Inc. (Nouveau) as against Shore LLC and 3) Nouveau's Third-Party Complaint as against Shore View.
Nouveau cross-moves (Seq. 08) for an order, pursuant to CPLR 3212, granting summary judgment dismissing: 1) the Complaint and 2) the crossclaims for common law and/or contractual indemnification and for contribution (as asserted by Shore LLC and Shore View) and the counterclaim alleging breach of contract for failure to procure insurance (as asserted by Shore View only), respectively.
Plaintiff commenced this action to recover damages for personal injuries sustained in an elevator which allegedly came to an abrupt stop after rapidly descending. The incident occurred on July 28, 2014 in a ten-story building owned by Shore LLC and located at 2865 Brighton 3rd Street in Brooklyn, NY. Shore View occupied the building pursuant to a 48-year commercial lease with Shore LLC, dated April 12. 2013, and operated a nursing home at the premises. At the time of the incident, plaintiff was employed by Shore View as a porter.
The building contained four elevators which were serviced and maintained by Nouveau pursuant to a maintenance service agreement with Shore View, dated March id, 2007. The elevator maintenance agreement (NYSCEF Doc. No. 141) provides at Paragraph 4A, Page 2, in part:
On August 24, 2016, plaintiff commenced this action against defendants Shore LLC and Nouveau alleging that Shore LLC was under a duty to keep the building, including the elevators, in a reasonably safe condition, while Nouveau was under a duty to maintain the elevators in a reasonably safe condition; that the accident was caused by the negligence, carelessness and recklessness of defendants in the installation, design, operation, maintenance and/or repair of the subject elevator; and that defendants are liable to plaintiff under the doctrine of res ipsa loquitor. On November 11, 2016, Shore LLC filed an answer setting forth crossclaims against Nouveau for common law and contractual indemnification and/or contribution. On November 16, 2016, Nouveau filed an answer interposing crossclaims against Shore LLC for contractual and common law indemnification and contribution. On July 11, 2018, Nouveau filed a third-party complaint against Shore View, setting forth a single cause of action for contractual indemnification based upon the aforesaid indemnification provision in the elevator maintenance agreement. In its third-party answer, Shore View interposed a counterclaim against Nouveau for breach of contract (failure to procure insurance), indemnification and contribution.
At his deposition, plaintiff testified that on the day of the incident, he took the "second elevator from the right" from the basement to the tenth floor where he was to "wax and buff the solarium" (a/k/a the tenth floor). When plaintiff arrived at the tenth floor, he unloaded his equipment (along with his father who was teaching him how to wax and buff floors). Plaintiffs father switched the elevator to "in service" mode, whereupon the elevator remained at the tenth floor for the three hours during which plaintiff (and his father) performed their work. An elevator placed in "in service" mode also would travel directly to a floor called, without stopping. After performing his duties, plaintiff entered the elevator intending to travel to the first floor for lunch in Shore View's cafeteria. Plaintiff testified that he pressed the first-floor elevator button, but the car did not move. After pressing the button again, however, the car moved slowly, as if it were grinding, then descended rapidly before coming to an abrupt stop, causing plaintiff injury. Plaintiff was later extricated from the elevator by first responders.
Shore LLC and Shore View move, and Nouveau cross-moves, for summary judgment primarily on grounds that these parties did not create or have actual or I constructive notice of any defect which could have caused the malfunction in the elevator. Shore LLC also maintains that it is not responsible to inspect or repair the elevator as it is an out-of-possession owner.
(Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] [citations omitted]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 N.Y.2d at 324; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).
"A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect, or where it fails to notify the elevator company with which it has a maintenance and repair contract about a known defect" (Goodwin v Guardian Life Ins. Co. of Am., 156 A.D.3d 765, 766 [2d Dep't 2017] [internal citations omitted]; Nunez v Chase Manhattan I Bank, 155 A.D.3d 641, 643 [2d Dep't 2017]; Cilinger v Arditi Realty Corp., 77 A.D.3d 880, 882 [2d Dep't 2010]). However, "[a]n out-of-possession landlord is not liable for injuries that occur on leased premises 'unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct' to perform the relevant maintenance or repairs" (Cali Dev. Corp, v Church Side Realty, LLC, 208 A.D.3d 451, 452 [2d Dep't 2022], quoting Grant v 132 W. 125 Co., LLC, 180 A.D.3d 1005, 1007 [2d Dept 2020]). Reservation of a right of entry may constitute sufficient retention of control to impose liability upon an out-of-possession owner or lessor for injuries caused by a dangerous condition, but only when 'a specific statutory violation exists and there is a significant structural or design defect'" (Lowe-Barrett v City of New York, 28 A.D.3d 721, 722 [2d Dep't 2006], quoting Stark v Port Auth. of NY. & N.J., 224 A.D.2d 681, 682 [2d Dep't 1996]; Thomas v Fairfield Invs., 273 A.D.2d 118, 118 [1st Dep't 2000]).
The proof submitted establishes as a matter of law that Shore LLC was an out-of possession landlord with no obligation to inspect, maintain or repair the subject elevators. The lease expressly provides in Section 8(a) that "[Shore View] shall promptly throughout the Term, at [Shore View's] cost and expense, take good care of and maintain the Leased Premises (including the Land, Improvements, and Fixtures) . ." Further, Section 8(c) of the lease provides:
"[Shore LLC] shall not under any circumstances be required to build any improvements on the Leased Premises, or to make repairs, replacements, alterations or renewals of any nature or description to the Leased Premises or to any of the Improvements or Fixtures, whether interior or exterior, ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to make any expenditure whatsoever in connection with this Lease or to inspect or maintain the Leased Premises in any way. . . ."
Shore LLC's witness David Brawerman (Brawerman) testified at his deposition that in 2014, Shore View, not Shore LLC, would be responsible for seeing to any I improvement, upgrade, or repairs to the elevators, be responsible for...
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