Opinion
Index 152232/15 595096/20
11-23-2021
Frank Lonigro et al., Plaintiffs-Respondents-Appellants, v. WFP Tower B. Co. L.P., et al., Defendants-Appellants-Respondents, Brookfield Asset Management, LLC, Defendant. WFP Tower B Co. L.P., Third-Party Plaintiff-Appellant-Respondent, Brookfield Asset Management, LLC, Third-Party Plaintiff, v. Structure Tone Inc., Third-Party Defendant-Respondent. Appeal No. 14554 No. 2020-04839
Kaufman Dolowich & Voluck, White Plains (Matthew Rosen of counsel), for appellants-respondents. Sullivan Papain Block McGrath Coffinas & Cannavo P.C., New York (Christopher J. DelliCarparini of counsel), for respondents-appellants. Cullen and Dykman LLP, New York (Daniel P. Mevorach of counsel), for respondent.
Kaufman Dolowich & Voluck, White Plains (Matthew Rosen of counsel), for appellants-respondents.
Sullivan Papain Block McGrath Coffinas & Cannavo P.C., New York (Christopher J. DelliCarparini of counsel), for respondents-appellants.
Cullen and Dykman LLP, New York (Daniel P. Mevorach of counsel), for respondent.
Before: Acosta, P.J., Renwick, Kapnick, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 19, 2020, which, to the extent appealed from as limited by the briefs, granted defendants-appellants' motion for summary judgment dismissing the complaint as against WFP Tower B. Co. L.P. (WFP), and denied the motion as to the other defendants, granted plaintiffs' motion to preclude defendants from relying on an affidavit by one of plaintiffs' treating physicians, granted plaintiffs' motion for a protective order seeking to vacate defendants' subpoena of the treating physician, and denied plaintiffs' motion for an adverse inference charge at trial based on spoliation of evidence, unanimously modified, on the law, to the extent of granting plaintiffs' motion for an adverse inference, and otherwise affirmed, without costs.
This action arises from injuries sustained by plaintiff Frank Lonigro when he was a passenger in an elevator that dropped and abruptly stopped. Plaintiffs sue, among others, both the owner of the property, WFP, and Thyssenkrup Elevator Corporation (TEC), the company hired by the owner to do regular maintenance work on the elevator system.
Supreme Court properly denied TEC's motion for summary judgment. TEC failed to establish that the doctrine of res ipsa loquitur does not apply in this case, in which plaintiff testified that he was injured after he entered an elevator and the elevator descended rapidly and stopped abruptly. Contrary to TEC's contention, an accident of this type does not ordinarily occur in the absence of negligence (see Orea v NH Hotels USA, Inc., 187 A.D.3d 476, 478 [1st Dept 2020]; see also Mejia v New York City Tr. Auth., 291 A.D.2d 225, 227 [1st Dept 2002]). While TEC presented evidence that the accident might not have occurred in the manner that plaintiff described, plaintiff's testimony about how the accident occurred was sufficient to create an issue of fact (see Miller v Schindler El. Corp., 308 A.D.2d 312, 313 [1st Dept 2003]). We note that TEC did not argue that the free fall described by plaintiff was either electrically or mechanically impossible (see id.; Cinquemani v Otis El. Co., 179 A.D.3d 588, 588-589 [1st Dept 2020]; cf. Espinal v Trezechahn 1065 Ave. of the Ams., LLC, 94 A.D.3d 611, 614 [1st Dept 2012] ["expert's uncontroverted litany of reasons unrelated to negligence" for an elevator to stop in a shaftway negates the element of the doctrine that the event must be of a kind that ordinarily does not occur absent someone's negligence]).
TEC also failed to establish that plaintiff's injuries were not caused by this accident. As an initial matter, the court properly declined to consider the June 2017 affidavit by plaintiff's treating physician, as the authorization obtained pursuant to Arons v Jutkowitz (9 N.Y.3d 393 [2007]) permitted an informal interview but did not permit defendants to obtain a formal affidavit by the physician (see generally Rucinski v More Restoration Co. Inc., 147 A.D.3d 485 [1st Dept 2017]; see also Arons, 9 N.Y.3d at 409; McCarter v Woods, 106 A.D.3d 1540, 1541-1542 [4th Dept 2013]). While TEC also relied on plaintiff's medical records, it provided no other expert testimony establishing that the accident did not exacerbate plaintiff's preexisting conditions. In any event, plaintiffs raised an issue of fact by submitting a second affidavit by plaintiff's treating physician opining that the accident exacerbated previously manageable conditions and caused plaintiff to become disabled. Any discrepancies in the physician's two affidavits only raise credibility issues, which are not properly resolved on this motion (see Almonte v 638 W. 160 LLC, 139 A.D.3d 439, 439 [1st Dept 2016]).
Supreme Court properly granted WFP's motion for summary judgment. WFP established that the doctrine of res ipsa loquitur does not apply to it, as it had ceded maintenance of the elevator to TEC (see Sanchez v New Scandic Wall L.P., 145 A.D.3d 643 [1st Dept 2016]). WFP also established that it lacked notice of the allegedly hazardous condition of the elevator (see Levine v City of New York, 67 A.D.3d 510 [1st Dept 2009]). Contrary to plaintiffs' contention, the prior report of the elevator doors failing to open in a timely fashion was not sufficient to constitute actual or constructive notice to WFP of a free-fall issue, and, in any event, the approximately two-minute period following the prior incident did not give WFP sufficient time to detect and remedy the alleged hazard (see generally Early v Hilton Hotels Corp., 73 A.D.3d 559, 561 [1st Dept 2010]).
The court providently exercised its discretion in quashing the subpoena served on the treating physician months after plaintiffs filed a note of issue, as defendants did not move the court for permission to conduct the requested deposition (see 22 NYCRR 202.21(d); Tirado v Miller, 75 A.D.3d 153, 161 [2d Dept 2010]).
Regarding plaintiffs' cross appeal, plaintiffs dem0nstrated their entitlement to an adverse inference with respect to the elevator's central processing unit (CPU). As was noted by the motion court, it is undisputed that TEC was notified of the accident and plaintiff's injury on the day of the accident. Further, TEC concedes that it had control over the CPU and that it removed the CPU, replaced it and did not preserve it, but instead returned it under warranty as defective. The relevance of the CPU to plaintiffs' claim is clear in that defendants' expert has opined that the CPU could have caused the elevator to malfunction. Under these circumstances, an appropriate adverse inference charge at the time of trial is warranted (see Castro v 510 W. 188th St. Assoc., LLC, 191 A.D.3d 423 [1st Dept 2021] [where the plaintiff demonstrated that the defendant had an obligation to preserve the video footage at the time of its destruction, that the defendant negligently failed to do so, and that the destroyed video footage was relevant]).