Opinion
2020–02086 Index No. 503509/14
09-22-2021
Gail BARCLIFF, plaintiff-respondent, v. SCHINDLER ELEVATOR CORP., defendant, Nouveau Elevator Industries, Inc., defendant third-party plaintiff-appellant; v. Brookdale Hospital Medical Center, third-party defendant-respondent.
Rebore Thorpe & Pisarello, Farmingdale, N.Y. (Timothy J. Dunn III of counsel), for defendant third-party plaintiff-appellant. Marc J. Bern & Partners, LLP, New York, N.Y. (Mollie Wellins of counsel), for plaintiff-respondent. Lewis Johs Avallone Aviles, LLP, New York, N.Y. (Carl A. Formicola of counsel), for third-party defendant-respondent.
Rebore Thorpe & Pisarello, Farmingdale, N.Y. (Timothy J. Dunn III of counsel), for defendant third-party plaintiff-appellant.
Marc J. Bern & Partners, LLP, New York, N.Y. (Mollie Wellins of counsel), for plaintiff-respondent.
Lewis Johs Avallone Aviles, LLP, New York, N.Y. (Carl A. Formicola of counsel), for third-party defendant-respondent.
WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated November 20, 2019. The order denied the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint insofar as asserted against it, dismissing the third-party defendant's counterclaim, and on its third-party cause of action for contractual indemnification.
ORDERED that the order is affirmed, with one bill of costs.
On August 8, 2012, the plaintiff was using an elevator in a building owned by Brookdale Hospital Medical Center (hereinafter Brookdale Hospital) when the elevator door allegedly closed improperly on her without warning. The plaintiff subsequently commenced the instant action, inter alia, to recover damages for personal injuries against, among others, Nouveau Elevator Industries, Inc. (hereinafter Nouveau), the elevator maintenance company used by Brookdale Hospital, alleging, among other things, that the elevator was in a defective condition on the date of the accident. Nouveau joined issue, and thereafter commenced a third-party action against Brookdale Hospital, seeking, inter alia, contractual indemnification. Brookdale Hospital joined issue in the third-party action and asserted a counterclaim against Nouveau, in effect, for contribution and/or indemnification. Nouveau moved for summary judgment dismissing the complaint insofar as asserted against it, dismissing Brookdale Hospital's counterclaim, and on its third-party cause of action for contractual indemnification. The Supreme Court denied Nouveau's motion, and Nouveau appeals.
An elevator company, such as Nouveau, which agrees to maintain an elevator in safe operating condition can be held liable to an injured 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" ( Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 559, 347 N.Y.S.2d 22, 300 N.E.2d 403 ; see Carter v. Nouveau Indus., Inc., 187 A.D.3d 702, 703, 131 N.Y.S.3d 687 ; Fajardo v. Mainco El. & Elec. Corp., 143 A.D.3d 759, 762, 40 N.Y.S.3d 121 ; Tucci v. Starrett City, Inc., 97 A.D.3d 811, 812, 949 N.Y.S.2d 419 ). Here, Nouveau submitted evidence demonstrating, prima facie, that it did not have notice of any defect in the elevator door, and that it did not fail to use reasonable care to correct a condition about which it should have been aware (see Daconta v. Otis El. Co., 165 A.D.3d 753, 753, 85 N.Y.S.3d 528 ; Hussey v. Hilton Worldwide, Inc., 164 A.D.3d 482, 484, 82 N.Y.S.3d 565 ). Contrary to the plaintiff's assertion, she did not demonstrate that the doctrine of res ipsa loquitur was applicable to the facts of this case (see Kachele v. Nouveau El. Indus., Inc., 186 A.D.3d 1626, 1627, 129 N.Y.S.3d 833 ; Daconta v. Otis El. Co., 165 A.D.3d at 754, 85 N.Y.S.3d 528 ). Nonetheless, the evidence submitted in opposition, which included the affidavit of the plaintiff's expert, raised a triable issue of fact as to whether Nouveau was negligent in its inspection and/or maintenance of the elevator door (see Pantoja v. Lindsay Park Hous. Corp., 277 A.D.2d 365, 366, 716 N.Y.S.2d 335 ). Accordingly, the Supreme Court properly denied that branch of Nouveau's motion which was for summary judgment dismissing the complaint insofar as asserted against it.
"[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor" ( Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., 58 A.D.3d 660, 662, 871 N.Y.S.2d 654 ; see Davies v. Simon Prop. Group, Inc., 174 A.D.3d 850, 855, 107 N.Y.S.3d 341 ). Since there is a triable issue of fact as to whether Nouveau was negligent in its maintenance of the elevator, and whether such negligence contributed to the accident, the Supreme Court properly denied those branches of Nouveau's motion which were for summary judgment dismissing Brookdale Hospital's counterclaim and on Nouveau's third-party cause of action for contractual indemnification (see Roblero v. Bais Ruchel High Sch., Inc., 175 A.D.3d 1446, 1448–1449, 109 N.Y.S.3d 329 ; Davies v. Simon Prop. Group, Inc., 174 A.D.3d at 855, 107 N.Y.S.3d 341 ). Neither the unsigned contract between Nouveau and Brookdale Hospital, which was submitted in support of the motion, nor the indemnification provision contained therein, even if in effect on the date of the accident, warrants a different finding.
MASTRO, J.P., DUFFY, BRATHWAITE NELSON and DOWLING, JJ., concur.