Opinion
103585/2008.
October 22, 2009.
DECISION
Defendant Ver-Tech Elevator Co., Inc. (Ver-Tech) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it, as well as dismissing all cross claims of co-defendant OTA Hotel Owner, LP d/b/a On The Ave Hotel (OTA). Plaintiffs Gary Meade (Meade) and, derivatively, his wife, plaintiff Jeanne Meade, cross-move, pursuant to CPLR 3212, for summary judgment on the issue of liability as against OTA.
The facts of the case are basically undisputed.
Meade, his father and his sister were staying at OTA's hotel when Meade was injured while attempting to exit a stalled elevator. The incident occurred on January 11, 2008, at approximately 10:45 in the evening.
Meade and his family were staying on the fourth floor of the hotel, and had used the elevator in question, without incident, several times during the day of the accident. Meade EBT, at 35-36. The last time Meade used the elevator was approximately 45 minutes prior to the accident, when Meade and his family returned to their rooms after dinner. Id. at 40. Meade, his father, John Meade (John), and sister, Sarah Meade (Sarah), then decided to leave the hotel to visit friends. The three Meades pushed the button for the elevator on the fourth floor, entered the elevator, and then pushed the button for the lobby. Id. at 47.
The elevator door closed normally, and started to descend slowly, when it stalled between the second and third floors, and the elevator door did not open. Id. at 49. The elevator slowed to a stop, and Meade did not sustain any injuries whatsoever when the elevator stalled. Id. at 177.
When the elevator stalled, John and Sarah pushed the elevator's alarm button, which worked properly. Id. at 50. Luis Santana (Santana), one of the hotel's security guards stationed in the hotel lobby, heard the elevator alarm, and, in response, immediately contacted another on-duty security guard, Drinton Krasniqi (Krasniqi), by means of a walkie-talkie. Santana EBT, at 25.
Krasniqi also heard the alarm from the hotel lobby, and alerted Andrew Sotero (Sotero), the hotel's engineer on-duty, asking him to respond to the situation on the second floor. Krasniqi EBT, at 31; Sotero EBT, at 31. Krasniqi was the first to arrive on the second floor, and he communicated with Meade through the closed elevator doors. Krasniqi EBT, at 35-38.
Sotero was next to arrive on the second floor, and he opened the elevator doors. Sotero testified that, when he opened the elevator doors, he observed that there was a sizable gap between the bottom of the elevator and the second floor hallway. Sotero EBT, at 38-39. Sotero then went to the third floor and opened the interior elevator door, which opened with a key that the on-duty engineer carries. Id. at 33-35, 38-39. Santana and Krasniqi both testified that the gap between the bottom of the elevator car floor and the second floor hallway was approximately three to four feet, and that the shaft of the elevator was exposed. Santana EBT, at 27; Krasniqi EBT, at 39.
Santana and Krasniqi then decided to attempt to extricate the trapped passengers. Krasniqi stated that they proceeded to extract the passengers without first securing the gap that exposed the elevator shaft way, and he further stated that he was unaware of any written or oral procedures for the hotel staff to follow in this type of situation. Id. at 46.
At his deposition, Santana stated that he and Krasniqi should not have disregarded the gap beneath the elevator, and opined that if they had used a ladder or piece of wood, Meade would not have fallen. Santana EBT, at 33, 59-60. It is noted that ladders and plywood were available and readily accessible in the basement of the hotel at the time. Sotero EBT, at 28. Santana further stated that, when the elevator doors were opened, he observed that none of the passengers was injured, and that there was no immediate risk of any danger to the passengers in the elevator. Santana EBT, at 69; 97.
Meade testified that he, John and Sarah were told by the hotel employees that they, the employees, would get the passengers out of the elevator. Meade EBT, at 59. According to Meade, the hotel employees instructed Sarah to exit first, by sitting on the floor of the elevator car with her legs extending into the hallway, and to jump forward. Sarah did what she was instructed, and fell onto the second floor hallway, but was uninjured. Meade EBT, at 61-62.
Meade was the next person to be helped out of the elevator. However, Meade, who weighed over 300 pounds, and who had a previous knee injury, was unwilling to jump from the elevator car. Instead, Meade backed out of the elevator, feet first, lying face-down, with his torso hanging over the edge of the elevator car. Allegedly, Meade asked whether anyone had him, and was assured that they did. However, because of his weight, Meade became fatigued, was unable to maintain his grip, and fell from the elevator car. As he fell, Meade's backside hit the edge of the second floor hallway, his body began to swing through the open gap, and he fell down the elevator shaft to the basement of the hotel, sustaining serious injuries. Id. at 67-75.
At his EBT, Sotero testified that, because the gap between the elevator car floor and the hallway was more than 24 inches, it was hotel procedure to call 911, which they did not do. Sotero EBT, at 30. Santana testified that he did not know why the elevator stalled, and that he was not aware of any problems with the elevator prior to this incident. Santana EBT, at 52-54.
It is uncontested that no one called Ver-Tech until after the accident occurred. Krasniqi EBT, at 87, 90-91. Krasniqi also testified that it was hotel policy not to call Ver-Tech while passengers are inside of a stalled elevator, but to contact Ver-Tech only after the passengers have been released. Id. at 98.
Daniel O'Brien, the hotel's director of security, and supervisor of both Krasniqi and Santana, was not at the hotel at the time the elevator stalled, but was called to the hotel immediately after the accident took place. O'Brien testified that the hotel employees should not have opened the interior elevator doors, but should have called 911. O'Brien EBT, at 48. O'Brien further stated that, if Ver-Tech is not contacted, the hotel's on-duty engineer assumes responsibility for handling the situation. Id. at 59-60. O'Brien was not aware of any other similar incidents involving the subject elevator. Id. at 40.
Ver-Tech's engineer, George Deering (Deering), testified that, although a written contract between OTA and Ver-Tech was drawn up, the contract was never signed; however, Ver-Tech did have an oral agreement with OTA, beginning in February, 2004, and continuing through the period in question, which consisted of essentially the same terms as the unexecuted written agreement. Deering EBT, at 15. Pursuant to this arrangement, Ver-Tech was not required to, and did not, provide any training to OTA employees. Id. at 19.
Deering testified that Ver-Tech would service the elevators once a month, absent a trouble call, and perform any necessary maintenance and repairs on the elevators. Id. at 16. Ver-Tech also provided 24-hour emergency service that would respond to the hotel if and when the hotel called it. Id. at 16-17.
On December 17, 2007, Ver-Tech performed a Two-Year Test of the subject elevator, which is a test of the elevator's governor switch, and the elevator passed inspection. Id. at 81. When Ver-Tech inspected the elevator the day after the accident, it determined that the reason the elevator stalled was that the governor switch was tripped. Ver-Tech determined this was the cause of the elevator stalling because, to start the elevator again, Ver-Tech had to reset the governor switch. The governor switch stops the elevator if the elevator is moving too fast, or if the elevator car is carrying excessive weight. Id. at 100-101. According to O'Brien, the governor switch was working correctly, in that it stopped the elevator; however, O'Brien could not surmise what caused the governor switch to trip. Id. at 101.
According to the agreement between Ver-Tech and OTA, it was OTA's responsibility to monitor the daily operations of the elevators, and to notify Ver-Tech if there was a problem. It was not Ver-Tech's obligation to perform daily monitoring of the elevator system. Motion Ex. L. Further, the contract does not require Ver-Tech to indemnify or defend OTA.
In the complaint, Meade asserts three causes of action: (1) negligence as against both OTA and Ver-Tech; (2) negligence as against Ver-Tech alone; and (3) Jeanne Meade's derivative action. OTA filed a cross complaint against Ver-Tech, asserting a cause of action for contractual indemnification.
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).
Ver-Tech's motion for summary judgment dismissing the complaint as against it, and the cross claims against it, is granted.
In order to prove a prima facie case of negligence, a plaintiff must establish: (1) the existence of a duty on the part of the defendant to the plaintiff; (2) a breach of that duty; and (3) injury suffered as a result of that breach. Solomon v City of New York, 66 NY2d 1026 (1985). In the instant case, the cause of Meade's injuries was the result of his evacuation from the stalled elevator.
No evidence has been presented that Ver-Tech was in any way negligent in its maintenance of the subject elevator. At the monthly inspection and Two-Year Test of the elevator, which took place less than one month before the accident in question, no problems were discovered. Meade, John and Sarah all used the elevator several times during the day of the accident without incident, up to 45 minutes before the elevator stalled. Ver-Tech was not called by OTA until the day after the accident, when it was determined that the reason that the elevator stalled was because the governor switch stopped the elevator's operation, which it is supposed to do under certain circumstance to prevent accidents. The elevator did not speed up, nor did it come to a sudden stop. When the elevator stalled, Meade was uninjured, and remained so until he attempted to leave the elevator with the assistance of OTA's employees. There was no notice to Ver-Tech, either actual or constructive, of any problem with the elevator until after the accident occurred, and daily inspection of the elevator was the responsibility of OTA. Under these circumstances, there can be no finding of negligence on the part of Ver-Tech. See generally Casado v OUB Houses Housing Co. Inc., 59 AD3d 272 (1st Dept 2009).
Similarly, Meade cannot base a claim of negligence against Ver-Tech under a theory of res ipsa loquitor.
"Submission of a case on the theory of res ipsa loquitor is warranted only when the plaintiff can establish three elements: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. . . . [T]he second requirement-exclusive control-is critically lacking here [internal quotation marks and citations omitted]."
Ebanks v New York City Transit Authority, 70 NY2d 621, 623 (1987); Bazne v Port Authority of New York and New Jersey, 61 AD3d 583 (1st Dept 2009) (alleged malfunction of an escalator).
In the instant case, the elevator was not in the exclusive control of Ver-Tech, as evidenced by the testimony of the OTA employees. Furthermore, even if an argument could be made that Ver-Tech was in some way negligent, which it was not, Meade would still have to demonstrate that Ver-Tech's negligence was the proximate cause of his injuries.
"[T]he question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury [internal quotation marks and citation omitted]." Lee v New York City Housing Authority, 25 AD3d 214, 219 (1st Dept 2005). Further, "the question of whether a defendant's negligence was a contributing cause of the accident is distinct from the question of whether the accident caused the injuries alleged to have been sustained by the plaintiff." Rodriguez v Budget Rent-A-Car Systems, Inc., 44 AD3d 216, 221 (1st Dept 2007).
"A defendant may act negligently without that negligence constituting a proximate cause of the accident. . . . [T]hat a defendant's negligence may be a proximate cause of an accident without being the proximate cause of the injuries claimed to have been sustained by the plaintiff [internal quotation marks and citation omitted]."
Id. at 222.
In Bustamante v Westinghouse Elevator Company ( 195 AD2d 318 [1st Dept 1993]), a passenger claimed that he was injured when the elevator in which he was riding hit the buffers without stopping at the basement level. According to a fellow passenger, when the elevator stopped, the plaintiff was standing next to him and was perfectly all right. Only later, after the fellow passenger exited the elevator car and turned to look at the plaintiff, was the plaintiff lying on the floor of the elevator. The Bustamente Court concluded that, while the defendant's negligence caused the accident, the requisite nexus between that event and the plaintiff's injuries was missing. Such is the situation in the case at bar.
When the elevator stalled, Meade was unharmed, according to his own testimony. There was no immediate danger to him or his fellow passengers. Meade was only injured when he attempted to exit the elevator without following the instructions, effective or not, of the OTA employees at the site. Under these circumstances, Ver-Tech's actions cannot be deemed to be the proximate cause of Meade's injuries. Therefore, the complaint is dismissed as against Ver-Tech.
Furthermore, the cross complaint is also dismissed. As discussed above, Ver-Tech was itself in no way negligent or responsible for Meade's injuries, and the agreement between Ver-Tech and OTA did not provide for any contractual indemnification. Additionally, the evidence submitted indicates that one of the causes of Meade's injuries was the action of OTA employees, and, therefore, common-law indemnification for OTA is precluded by the actions of OTA's own employees. Trump Village Section 3, Inc. v New York State Housing Finance Agency, 307 AD2d 891 (1st Dept 2003).
Meade's cross motion for summary judgment on the issue of liability as against OTA is denied.
In its opposition to Meade's cross motion, OTA argues that the motion was filed 61 days after the filing of the Note of Issue, and therefore it should be denied as untimely. However, the 60th day fell on a Sunday, and, therefore, the motion was timely filed on the immediately following weekday. General Construction Law § 25-a(l); Matter of American Casualty Co. v McCoy, 138 AD2d 485 (2d Dept 1988).
As previously discussed, OTA employees undertook to help Meade, John and Sarah evacuate the stalled elevator without either calling Ver-Tech, contacting 911, or securing the gap between the elevator and the second floor with ladders and/or planks, which were readily available in the hotel basement. The testimony provided further indicates that there was no emergency situation with respect to plaintiffs' safety or welfare that would warrant not following alleged hotel procedures, although there is a question, raised by conflicting testimony, as to whether such procedures did in fact exist. However, despite this, OTA argues that it was Meade's own actions, as detailed above, that either caused or contributed to his injuries.
New York courts have consistently held that, where there is a factual question as to whether a plaintiff's own actions contributed to his or her injuries, summary judgment should be denied. Thoma v Ronai, 82 NY2d 736 (1993); DiCicco v Cattani, 59 AD3d 660 (2d Dept 2009); Hernandez v New York City Transit Authority, 52 AD3d 367 (1st Dept 2008); Hazel v Nika, 40 AD3d 430 (1st Dept 2007); Shea v New York City Transit Authority, 289 AD2d 558 (2d Dept 2001). Even in cases in which substantial fault may be attributed to a defendant, comparative fault may still be an appropriate defense. See Del Terzo v City of New York, 189 AD2d 556 (1st Dept 1993).
Based on the foregoing, Meade's cross motion for summary judgment as against OTA with respect to liability is denied.
CONCLUSION
It is hereby
ORDERED that defendant Ver-Tech Elevator Co., Inc.'s motion for summary judgment to dismiss the complaint as against it and to dismiss the cross complaint against it is granted and the complaint and the cross complaint is hereby severed and dismissed as against said defendant, and the Clerk is directed to enter judgment in favor of said defendant; and it is further
ORDERED that the cross motion of plaintiffs Gary Meade and, derivatively, his wife, plaintiff Jeanne Meade, pursuant to CPLR 3212, for summary judgment on the issue of liability as against OTA, is denied; and it is further
ORDERED that counsel for defendant Ver-Tech shall serve a copy of this order with notice of entry within twenty days of entry on all counsel; and it is further
ORDERED that the remainder of the action shall continue.