Tang v. PS Marcato Elevator Co.

• Docket Number: Index No. 151257-2018,Mot. Seq. No. 3 & 4
• Decision Date: 28 November 2023
• Parties: MING TANG v. PS MARCATO ELEVATOR CO., INC. et al
• Court: New York Supreme Court

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2023 NY Slip Op 34122(U)

MING TANG
v.
PS MARCATO ELEVATOR CO., INC. et al

Index No. 151257-2018, Mot. Seq. No. 3 & 4

Supreme Court, New York County

November 28, 2023

Unpublished Opinion

HON.LYNN R. KOTLER, J.S.C.

The following papers_were read on this motion to/for sj

Notice of Motion/Petition/O.S.C. - Affidavits - Exhibits ECFS Doc. No(s). ___

Notice of Cross-Motion/Answering Affidavits - Exhibits ECFS Doc. No(s). ___

Replying Affidavits ECFS Doc. No(s).___

There are two motions for summary judgment presently pending in this personal injury action which are hereby consolidated for the court's consideration and disposition in this single decision/order. In motion sequence 3, defendants 200 Varick Street DE, LLC and Newmark Family Properties, LLC (hereinafter "200 Varick" or "Varick") moves for summary judgment dismissing plaintiff's complaint and all crossclaims against it as well as judgment in its favor on the contractual indemnity claims against codefendant PS Marcato Elevator Co., Inc. ("Marcato"). Plaintiff opposes the motion and PS Marcato partially opposes the motion as to the crossclaim for contractual indemnification.

In motion sequence 4, defendant PS Marcato also moves for summary judgment dismissing plaintiff's complaint and all crossclaims against it. Plaintiff opposes the motion and 200 Varick submits a reply only as to plaintiff's opposition. A copy of the surveillance video of the alleged incident was provided to the Court for its review on the relevant motions.

Issue has been joined and the motions were timely brought after note of issue was filed. Therefore, summary judgment relief is available.

The relevant facts are as follows. On August 4, 2016, at approximately 2 pm, plaintiff was entering an elevator, which he believed to be elevator 1, at his place of employment at 200 Varick Street, New York, New York when he claims that the elevator door closed abruptly and struck him on the right shoulder. At the time of his accident, plaintiff testified that he waited "a few seconds" to let people exit the elevator, which took "a few seconds" and that "once everybody exited the door was still wide open, so I proceed to enter the elevator", which [he] "believe it was just two steps".

At his deposition, plaintiff testified as follows:

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Q. And as you started to enter the elevator, what happened

A. As I was entering the elevator all of a sudden the door slammed onto my right shoulder.

Q. At what point did the door start to close?

A. As I was entering the elevator I believe my right foot was in the elevator already where the door is, that's when, how should I put it, the door was right on to my right side as I was entering.

Q. Were you already in the doorway when the door first started moving to shut?

A. Yes, I was. I meant to say I was at the door as I was entering.

Q. When you say at the door, were you in front of it or in the opening to the elevator?

A. My body was between -- how should I put it? This is the front of the elevator and I was already entering but not completely inside the elevator.

Q. At what pace were you walking when you were trying to enter the elevator?

A. Normal.

Q. So as the people were exiting the elevator, were you standing directly in front of it or were you standing off to one side or the other?

A. All I could remember is I wasn't in front of it. I was like on the side to make sure they exit before I enter.

Q. As the group of people were exiting the elevator, was any of them standing in the doorway holding it open or blocking the doorway?

A. No.

Following the incident, plaintiff reported what occurred to his building superintendent Donald Kuebelbeck. The elevator involved was allegedly taken out of service. Thereafter, PS Marcato came to the building to perform an inspection of the elevator.

200 Varick owned and managed the premises where plaintiff's accident occurred, and PS Marcato was the contractor for 200 Varick that performed maintenance services, preventative maintenance procedures, repairs, adjustments and component replacements for elevators, and related apparatus at 200 Varick.

200 Varick produced Donald Kuebelbeck for deposition. Mr. Kuebelbeck has been employed by Gural Family Property Real Estate (GFPRE) for 29 years in the position of building superintendent. Kuebelbeck testified that if anyone in the building desired to make a complaint about an elevator that person would call the front desk or go down to the front desk in the lobby of the budling. Kuebelbeck described the procedure in response to a complaint about an elevator and that the elevator would be shut down in the lobby, main lobby or brought to the basement and an out of order sign placed in front

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of it. Kuebelbeck testified that prior to August 4, 2016, he received a text from Larry Capici about the elevator doors closing too quickly "in their opinion". Kuebelbeck further testified about the Capici text that "[i]f I remember correctly, something about "can you please call the elevator company and have the doors looked at", something like that and that he understood from the text that the elevator door hit Larry in the arm. Kuebelbeck testified that PS Marcato always responded to his calls but that he did not know what they did when they came to the building. Mr. Kuebelbeck testified he did not do a report for Capici's incident because he did not know what day the incident occurred, what elevator or when he hurt his arm. He claimed he was not aware of any issues with the timing or speed of the doors on elevator 1 closing prior to August 4, 2016. He further testified that Marcato came to the building after plaintiff's incident and checked out elevator 1 but did not find any problems with it.

PS Mercato produced William Tower for a deposition, who testified that he was employed by Marcato as a service mechanic. He testified that he received a time ticket for 200 Varick on August 4, 2016 and that he went to the building. He further testified that he wrote under the heading, work performed, the following: "checked edge. Functions properly. And I checked the edge." Towers also testified what other services he performed in connection with the elevator when he was at the building.

At his deposition, Tower specifically testified as follows:

Q. So when you were there, would there be anything else that you would have done, with respect to checking the edge, other than what you've just told me?

A. I would check the edge. A lot of times, I would go up to the controller and see if there's any faults in the -- you know, in the memory. Just give it an overall check, basically. Just make sure it's functioning properly.

Q. Yes, first, would you have checked the speed with which the door closes?

A. Yes, I would make sure the door is not slamming shut, that it's closing properly. Opening and closing properly and that the edge functions.

Q. Yes, first, would you have checked the speed with which the door closes?

A. Yes, I would make sure the door is not slamming shut, that it's closing properly. Opening and closing properly and that the edge functions.

Q. And how would you check the speed of the door closing? Would that visual inspection or something else?

A. I would give it a visual.

Q. What you're telling me is how - is that your custom and practice, as a mechanic, as to what you would do, when you get a call, regarding the edge of the door?

A. Yes.

Q. You don't specifically remember what you did that day.

A. No.

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Q. It says, "Work performed. "Now, it looks like it says, "Running, check edge." Is that information you would have sent through your tablet?

A. Yes, that means the car was running when I got there. That means even though it says it was shutdown, I put running. That means the car was running when I got there. That means the building put it back into service.

Q. And then when you were done, did you send a notation that the elevator is in service?

A. Yes, done, in service. Yes.

Marcato produced a second witness, vice-president Andrew Trapani, fora deposition on February 27, 2020. He testified that the elevator mechanic is supposed to document work done on an elevator at the conclusion of a service call. He testified that there were no checkmarks indicating that preventative maintenance was done on the form Elevator Maintenance Program Log for 200 Varick.

Non-party witness Lawrence Capici testified as follows:

Q. It's just for the record, but you can tell me what happened.

A. Okay. Three days in a row, I got hit with the elevator door. The first day, I went to go in and it was boom, like it hit me really fast. I just looked at the security guards like (indicating) - it was like not normal. You know, it was not like a regular - the next day, the same thing. And I said Mike, what do you - what is going on with this elevator? There is definitely something wrong.

The third day, it hit me really bad. And not only did I tell them, I notified the building manager because I thought there

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