Saunders v., Index No. 302306/2009
| Decision Date | 26 March 2018 |
| Docket Number | Index No. 302306/2009 |
| Citation | 2018 NY Slip Op 30767 (U) |
| Parties | David Saunders, Plaintiff, v. J.P.Z. Realty, LLC, The Trustees of Columbia University in the City of New York, and Warren Elevator Service Company, Inc., Defendants. |
| Court | New York Supreme Court |
DECISION AND ORDER
Plaintiff moves for partial summary judgment in his favor on the issue of liability. By separate motion, defendant Warren Elevator Service Company, Inc. ("Warren") moves for summary judgment dismissing all claims and cross-claims against it. Defendant J.P.Z. Realty LLC ("J.P.Z.") cross-moves for summary judgment dismissing all claims and cross-claims against it. Plaintiff cross-moves for partial summary judgment in his favor on the issue of liability.1 The foregoing motions and cross-motions are consolidated for disposition herein.2
On August 11, 2008, at approximately 10:00 AM, in a warehouse located at 3247 Broadway in New York County, plaintiff was struck by the "vertical rise gate" ("vertical rise gate" or "gate") of a manually operated freight elevator, which fell from above, striking plaintiff's head. It is undisputed that the outer freight elevator doors were made of two metal panels, which simultaneously retracted into the floor or ceiling when a strap was pulled manually by the elevator operator. The single, interior gate opened manually by lifting up, and closed bypulling downward; a system comprised of a chain attached to counterweights allowed the door to remain in place when elevated.
Plaintiff was an employee of non-party Despatch Moving and Storage ("Despatch"), which was the sole lessee of the building.3 According to the plaintiff's deposition testimony, on the day of the accident a Despatch employee named "Earl" was operating the elevator.4 Over the course of approximately 40 minutes immediately prior to the accident, plaintiff had taken the elevator to the fifth floor, seventh, and tenth floors, without incident. As plaintiff was exiting the elevator on the first floor, however, "the gate they [sic] just come out of nowhere and broke apart . . . knocked me unconscious."5
Warren's deposition witness Kenneth Seiferth testified there was no written contract between Warren and J.P.Z. J.P.Z. and Warren had only an oral agreement to oil and service the machine and motor, and lubricate the guiderails and counterweight rails. There was no agreement to inspect the gate or chain. Warren serviced the elevator on an as needed basis, made repairs on an "as needed" basis. The cause of the accident was a broken chain, which had been attached to a counterweight system, allowing the gate to be lifted up and remain in position. Seifert also testified that Warren did not "service" the chain or vertical rise gate.Plaintiff's motion for partial summary judgment
Plaintiff argues that under the N.Y.C. Administrative Code, periodic elevator inspections must be performed. In fact, Warren performed a "Mandated Private Elevator Inspection" on March 21, 20008 (which the elevator failed for reasons unrelated to the gate), and later performed a "two year test" on July 17, 2008. Plaintiff maintains that industry standards and regulations required that the chain be inspected at the time of these mandatory elevator inspections. Plaintiff's expert Patrick J. McPartland states:
"...
Consequently, plaintiff asserts that Warren is liable because it agreed to inspect the elevator, and did so negligently, in that Warren failed to inspect the chain assembly.
With respect to J.P.Z., plaintiff observes that the lease between J.P.Z. and Despatch provides that J.P.Z. could enter the premises at reasonable times to effectuate repairs that are reasonable and necessary, or to comply with any laws, regulations or directions of governmental authorities. Citing Guzman v. Haven Plaza Housing Dev. Fund Co. (69 N.Y.2d 559, 563, 509 N.E.2d 51, 51, 516 N.Y.S.2d 451, 451 [1987] []), plaintiff argues that J.P.Z. is liable for failing to maintain the elevator.
In opposition, Warren argues that material issues of fact exist. Warren maintains that the accident could have been caused by misuse of the elevator. In support of this argument, Seiferth testified that unidentified Warren employees were told that the gate was "slammed up," causing the chain to break. As to Warren's purported admissions that Warren never inspected the chain assembly, Warren argues that plaintiff has misread and misconstrued the Seiferth's testimony, in that Seiferth did not testify that Warren failed to inspect the chain.
As to plaintiff's expert, McPartland, Warren observes that McPartland did not inspect the chain,6 and that his surmise that the chain was "deteriorated" is speculative and unsupported by actual evidence.
J.P.Z. argues, in opposition to plaintiffs motion, that it had no notice of any defect in the chain, and that it did not violate any requirement to obtain elevator inspections, as the elevators were in fact tested, as required by the N.Y.C. Administrative Code.
By separate motion, Warren moves for summary judgment dismissing the complaint and all cross-claims against it. Warren argues that it did not have notice of the any defect in the elevator chain, nor did it cause the defective condition, citing, inter alia, Santoni v. Bertelsmann Prop. (21 A.D.3d 712, 714-715, 800 N.Y.S.2d 676, 679 [1st Dept. 2005] [].) Lastly,Warren argues that the elements of res ipsa loquitur were not satisfied, as Warren was not in exclusive control of the gate.
Defendant J.P.Z. cross-moves for summary judgment in its favor dismissing the complaint and all cross-claims against it. Prior to the accident, there were no incidents relating to the vertical rise gate or the chain mechanism. J.P.Z. did not maintain or operate the elevator, or supervise any of Despatch's employees, and the elevator maintenance bills were paid by Despatch.
Plaintiff cross-moves for summary judgment as to liability in his favor, repeating many of the same arguments that were raised on plaintiff's prior, separate motion. Plaintiff additionally argues that plaintiff is entitled to judgment based on res ipsa loquitur, that the allegations that the gate was damaged due to misuse are based on hearsay.
Initially, the court observes that the defendants did not cross-move for summary judgment in response to plaintiff's prior motion, but instead, Warren moved separately for summary judgment, and co-defendant J.P.Z. made an improper cross-motion. (Kershaw v Hospital for Special Surgery, 114 A.D.3d 75, 88, 978 N.Y.S.2d 13, 23 [1st Dept. 2013 [a cross motion is an improper vehicle for seeking relief from a nonmoving party].) Plaintiff then cross-moved for summary judgment, in effect making a second motion for summary judgment. Although two motions by plaintiff are pending, in view of the fact that the motions are largely duplicative, and that there is manifestly no prejudice to any party, the court will address all of the arguments raised on the merits.
A landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature and the burden of avoiding the risk. In order to recover damages, a party must establish that the owner created or had actual or constructive notice of the hazardous condition that precipitated the injury. (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969, 646 NE2d 795, 622 NYS2d 493 [1994].) "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646 [1986]).
Plaintiff's motion and cross-motion for summary judgment
Plaintiff is not entitled to partial summary judgment as to liability.
As to J.P.Z., plaintiff has not established that J.P.Z. caused, created, or had notice of any defect or issue with the vertical lift gate. This point is more fully discussed below in connection with J.P.Z.'s motion for summary judgment.
As to Warren, the evidence shows that it did not have a full service contract that would cast Warren in liability for failing to maintain the elevator. An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge, or failure to use reasonable care to discover and correct a condition which it ought to have found, but only when, pursuant to contract, the elevator...
To continue reading
Request your trial