Shell v. Kone Elevator Co.
| Citation | 964 N.Y.S.2d 63,37 Misc.3d 1226,2012 N.Y. Slip Op. 52171 |
| Decision Date | 28 November 2012 |
| Docket Number | No. 12090/2006.,12090/2006. |
| Parties | Virginia SHELL, Plaintiff, v. KONE ELEVATOR CO., and Linpro New York Realty, Inc., Defendants. |
| Court | United States State Supreme Court (New York) |
OPINION TEXT STARTS HERE
Robert A. Cardali, Esq. Martin Grossman, Esq. New York City, for Plaintiff.
Rose E. Hunter, Esq., Lawrence, Worden, Rains & Bard, P.c., Meliville, for Defendant, Linpro New York Realty, Inc.
Jessica Beauvias, Esq., Costello, Shea & Gaffney, LLP, New York City, for Defendant, Kone Elevator, Co.
Defendant, KONE ELEVATOR CO., (hereinafter “KONE”), moves this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Plaintiff, Defendant LINPRO NEW YORK REALTY, INC., cross moves this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Plaintiff and dismissing all cross claims against it.
Upon reading the Notice of Motion by Jessica Beauvais, Esq., Attorney for Defendant, KONE ELEVATOR CO., dated February 24th, 2012 together with the Affirmation in Support of KONE's Motion for Summary Judgment, dated February 24th, 2012, and all exhibits annexed thereto; the Notice of Cross–Motion by Rose E. Hunter, Esq., Attorney for Defendant, LINPRO NEW YORK REALTY, INC., dated April 16th, 2012, together with the Affirmation in Support of Rose E. Hunter, Esq, dated April 16th, 2012, and all exhibits annexed thereto; the Affirmation in Partial Opposition to Co–Defendant's Cross–Motion of Jessica Beauvais, Esq., dated May 15th, 2012; the Affirmation of Martin Grossman, Esq., Attorney for Plaintiff, VIRGINIA SHELL, dated May 16th, 2012 and all exhibits annexed thereto; the Reply Affirmation by Jessica Beauvais, Esq., dated May 23rd, 2012 and all exhibits annexed thereto; the Reply Affirmation in Support of Cross–Motion for Summary Judgment by Defendants LINPRO, of Rose E. Hunter, Esq., dated May 23rd, 2012; and after argument of counsel and due deliberation thereon, KONE's motion for Summary Judgment is denied and LINPRO's cross motion is granted for the reasons set forth below.
Plaintiff brings this action to recover for injuries she sustained when she tripped and fell while exiting an elevator on September 14, 2005 at approximately 8:00 am. The elevator, “elevator one”, is located at 290 Broadway, New York, NY, where Plaintiff is employed.
Plaintiff was in the lobby waiting for the elevator. When it arrived and she went to enter the elevator, her foot struck something and she fell forward onto the floor of the elevator. She alleges that the elevator mis-leveled, causing her to trip and fall. Plaintiff stated she made no prior complaints about the elevator.
Defendant LINPRO managed the building for the owner at the time of Plaintiff's accident.
Thomas O'Grady was the building manager for LINPRO at the time of Plaintiff's fall. Mr. O'Grady stated he had not received any complaint regarding elevator one for a year prior to September 14, 2005.
LINPRO contracted with Defendant KONE for KONE to maintain the elevator equipment at 290 Broadway pursuant to a Preventative Maintenance Agreement, (“PM Agreement”). The agreement was in effect at the time of Plaintiff's fall.
Gary Savage was an employee of KONE and stated that KONE had a resident mechanic, Jim McMahon, stationed at 290 Broadway on weekdays from 7:30–5:30 daily. Savage stated that McMahon would check elevators for leveling problems on a daily basis, in accordance with KONE's preventative maintenance program. McMahon died prior to being deposed.
Defendant KONE denies having any log book for McMahon's daily activities but produced documents entitled”time ticket detail reports”. These reports provide information as to the identity of employee who responded to service calls, the building site and the hours worked. No significant detail as to the nature of the service calls is provided, other than the identification of the elevator.
Defendant KONE argues it is entitled to summary judgment as there is no evidence that KONE had constructive or actual notice of the condition which caused Plaintiff's fall.
Defendant LINPRO also argues that it is entitled to summary judgment as it had no constructive or actual notice of the condition which caused Plaintiff's fall. It also argues it is entitled to summary judgment as it had a full service agreement for KONE to provide all elevator maintenance services, which displaced any duty it had to maintain the elevator.
Plaintiff opposes only KONE's motion, arguing that she does not need to prove that KONE had notice of the condition because the doctrine of res ipsa loquitur applies to malfunctioning elevators, and that res ipsa loquitur permits an inference of negligence. She argues that res ipsa loquitur precludes summary judgment and permits the question as to whether KONE was negligent to go to a jury.
While KONE agrees with LINPRO's assertion that there is a lack of notice as to the mis-leveling of the elevator, KONE argues that LINPRO's duty to the Plaintiff was not displaced by KONE, because the service agreement was not comprehensive or exclusive. KONE asserts that the agreement contained an exclusion which stated that KONE was not responsible or liable for LINPRO and its employees' operation of the of the equipment as a result of providing training with respect to the operating and safety features of the equipment.
KONE further argues that the fact that LINPRO's fair safety director and deputy safety director could shut down the elevators for cleaning and in case of emergencies further supports the fact that LINPRO's duty was not displaced to KONE.
Notice is NOT required for res ipsa loquitur
Elevator companies who have issued maintenance contracts are liable where they have actual or constructive notice of a defect or malfunction. Constructive notice has been found where there have been prior incidents of mis-leveling. Rogers v. Dorchester Associates, 32 N.Y.2d 553, 561, 300 N.E.2d 403, 407 (1973), Sirigiano v. Otis Elevator Company, 118 A.D.2d 920, 499 N.Y.S.2d 486 (3rd Dept 1986).
In Beinhocker v. Barnes Development Corp., 296 N.Y. 925, 73 N.E .2d 41, mot. for rearg. den. 297 N.Y. 472, 74 N.E.2d 180, the Court of Appeals found res ipsa could apply, even though in that case there is no evidence cited of notice of a defect or of a prior incident. See also, Devito v. Centennial Elevator Indus., Inc., 90 AD3d 595, 596, 933 N.Y.S.2d 871 (2nd Dept 2011), Fiermonti v. Otis Elevator Co., 94 AD3d 691, 692, 941 N.Y.S.2d 657, 658 (2012), Fyall v. Centennial Elevator Indus., Inc., 43 AD3d 1103, 1104, 843 N.Y.S.2d 137, 139 (2nd Dept 2007).
In Beinhocker v. Barnes Development Corp., 296 N.Y. 925, 73 N.E .2d 41, mot. for rearg. den. 297 N.Y. 472, 74 N.E.2d 180, plaintiff fell and was injured when a safety interlock' device failed to function and the door opened even though the elevator was not at the floor. The elevator company had agreed to maintain the elevator and had complete charge over maintenance of the interlock device. These circumstances were held to support an inference of negligence by the elevator company, even without an indication that there had been a prior incident.
In Devito v. Centennial Elevator Indus., Inc., the Appellate Division Second Department held that plaintiff raised a triable issue of fact as to defendant elevator company's liability under the doctrine of res ipsa loquitur by submitting proof that the rapid descent, shaking, and abrupt, misaligned stop of the elevator was an occurrence that would not ordinarily occur in the absence of negligence, that the maintenance and service of the elevator was in the exclusive control of defendant elevator company, and that no act or negligence on the part of the plaintiff contributed to the happening of the accident. Devito v. Centennial Elevator Indus., Inc., 90 AD3d 595, 596, 933 N.Y.S.2d 871 (2nd Dept 2011).This was even though the defendant had established that it had no notice of the defect and there was no evidence of prior misleveling incidents cited.
In Fiermonti v. Otis Elevator Co., 94 AD3d 691, 692, 941 N.Y.S.2d 657, 658 (2012), the Court held that where the maintenance and service of an elevator was within the exclusive control of Otis, the plaintiff did not contribute to the happening of the accident, and where there was proof that the sudden mis-leveling of an elevator was an occurrence that would not ordinarily occur in the absence of negligence, those facts provided a basis for liability under the doctrine of res ipsa loquitur. Fiermonti v. Otis Elevator Co., 94 AD3d 691, 692, 941 N.Y.S.2d 657, 658 (2012). In Fiermonti, the defendant had shown that it had neither actual nor constructive notice of any defect in the elevator.
The Appellate Division in Fyall v. Centennial Elevator Indus., Inc., 43 AD3d 1103, 1104, 843 N.Y.S.2d 137, 139 (2nd Dept 2007), found that even in the absence of notice, where an elevator malfunctioned in a manner that would not ordinarily occur in the absence of negligence, where the maintenance and service of the elevator was within the exclusive control of the elevator maintenance company, and where no act or negligence on the plaintiff's part contributed to the happening of the accident, there is a basis for an inference of negligence under the doctrine of res ipsa loquitur.
KONE cites Tashjian v. Strong & Associates, 225 A.D.2d 907, 639 N.Y.S.2d 507 (3rd Dept 1996) for the proposition that notice is required for it to be liable for a defect in the elevator. However, while the Court in Tashijian held the elevator maintenance company not liable where it found that the defendant did not have notice, the Court did find that the defendant demonstrated that the elevator was tested regularly for misleveling, and proof was furnished to show that it performed satisfactorily. In the present case, no records were produced to show that the elevator was regularly tested and the tests showed there was no malfunction.
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