Opinion
Index No. 21713/2017E
01-26-2021
NILSA MORALES, Plaintiff, v. WATERVIEW REALTY CORPORATION, FIRST METROPOLITAN REALTY ASSOCIATES, INC. AND D&D ELEVATOR MAINTENANCE INC., Defendants. WATERVIEW REALTY CORPORATION and FIRST METROPOLITAN REALTY ASSOCIATES, INC., Third-Party Plaintiff, v. D&D ELEVATOR MAINTENANCE INC. Third-Party Defendants.
Unpublished Opinion
DECISION AND ORDER
ANDREW COHEN, J.S.C.
The following papers, numbered 1-5 were considered on the motion for summary judgment:
PAPERS NUMBERED
Notice of Motion and annexed Exhibits and Affidavits................................................................1
Answering Affidavits and Exhibits............................................................................................................2,3
Reply Affirmation...............................................................................................................4, 5
Upon the foregoing papers, it is ordered that the motion for summary judgment is granted.
Plaintiff commenced this action to recover for personal injuries she allegedly sustained on September 9, 2016 when she tripped and fell in the elevator at the premises where she resided. Defendant Waterview Realty Corporation (Waterview) is the owner of the premises and defendant First Metropolitan Realty Associates, Inc. is the managing agent (collectively, the Building Defendants). In 2014, Waterview had retained non-party Arco Elevator to perform monthly maintenance and repairs of the elevator at the premises (Contract). Defendant D&D Elevator Maintenance Inc. (D&D Elevator) subsequently purchased some of Arco Elevator's assets, including the Contract.
D&D Elevator now moves for summary judgment pursuant to CPLR §3212 dismissing the plaintiffs complaint, all cross-claims and the third-party complaint against it. In support of its motion, D&D proffers, inter alia, the deposition testimonies of plaintiff, the property manager, Rachel Massimo and superintendent, Vlamir Illija, and the president of D&D Elevator, Robert Schaeffer, the Contract, and various work tickets and proposals. D&D Elevator also seeks sanctions for spoliation of video footage against the Building Defendants.
Plaintiff and the Building Defendants oppose the motion.
It is well established that the proponent of a summary judgment motion must make a prima facie case showing of entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept 1992], citing Assaf v Ropog Cab Corp., 153 A.D.2d 520, 521 [1st Dept 1989]).
Generally, a contractor such as D&D Elevator owes no duty of care to non-contracting parties such as the plaintiff (Fung v Japan Airlines, 9 NY3d 351 [2007]). However, a duty of care may arise if: 1) D&D Elevator failed to exercise reasonable care in the performance of its duties, and thereby "launches a force or instrument of harm," 2) plaintiff detrimentally relied upon the continued performance of D&D Elevator's duties or 3) D&D Elevator completely displaced the Building Defendants' duty to maintain the safety of the premises (Espinal v Melville, 98 N.Y.2d 136 [2002]).
Under the Espinal analysis, there is no evidence that plaintiff detrimentally relied upon D&D Elevator to continually perform its duties. Additionally, the Contract was not so comprehensive and exclusive that D&D Elevator completely displaced the Building Defendants' duty to maintain the safety of the premises since the Contract provides that the possession and control of any part of the elevator remained exclusively with Waterview. Thus, the only possible basis for liability to plaintiff is that D&D Elevator failed to exercise reasonable care in the performance of its duties, and thereby launched a force or instrument of harm. Accordingly, D&D Elevator has the burden of demonstrating that it did not commit any affirmative act that created the alleged dangerous condition or exacerbated an already existing alleged dangerous condition thereby causing injury to plaintiff (Medina v Milt Holdings, 131 A.D.3d 121 [1st Dept 2015]).
Here, D&D Elevator has satisfied its prima facie burden by showing entitlement to judgment as a matter of law. According to D&D Elevator, the elevator is a Single Speed Alternating Current (SSAC) elevator which is not self-levelling and requires a technician to bring it "within level." The president of D&D Elevator testified that if the elevator is not within level, the technician would adjust the brake until the elevator is within level. He further testified that if the elevator could not be adjusted to where it would be within level, then the elevator would be shut down and a proposal would have been sent to the Building Defendants for approval of needed repairs. D&D Elevator did not receive any complaints regarding the misleveling of the elevator prior to the accident and an adjustment was made in January 2016 in response to deficiencies noted during a 2015 inspection conducted by a third-party inspector. Consequently, D&D Elevator has demonstrated that it performed its obligations under the Contract, that it performed its monthly inspections and maintenance, including one approximately two weeks before the accident, and that the alleged defect did not require D&D Elevator to shut down the elevator.
In opposition, neither the Building Defendants nor the plaintiff has produced evidence that could raise a triable issue as to whether D&D Elevator, in its inspection or its work created or exacerbated a dangerous condition. The fact that a work ticket reflects that the levelling was adjusted in January of 2016, some eight months prior to the accident, is insufficient to raise a material issue of fact as to whether D&D Elevator either created or exacerbated a defective condition, especially since there is no evidence that the levelling was adjusted during the monthly inspection and maintenance on August 25, 2016. Furthermore, the proposal D&D Elevator sent to the Building Defendants for the modernization of the elevator due to potential levelling problems with SSAC elevators is insufficient to raise an issue of fact. Even assuming that D&D Elevator was negligent in performing its contractual obligations, such negligence alone is insufficient unless it "launches a force or instrument of harm" (Espinal, 98 N.Y.2d at 136). There is no evidence that D&D Elevator performed its duties negligently so as to have launched a force or instrument of harm. Thus, D&D Elevator cannot be held liable to plaintiff because it did not owe plaintiff any duty.
Inasmuch as plaintiff and the Building Defendants rely on the line of cases holding that an elevator maintenance company owes a duty of care to members of the public, that reliance is misplaced since they have been held to not be good law (see Baez v 1749 Grand Concourse LLC, 178 A.D.3d 520, 523 [1st Dept 2019] citing Medinas v MILT Holdings LLC, 131 A.D.3d 121, 127-128 [1st Dept 2015]).
Res Ipsa Loquitur
The doctrine of res ipsa loquitur may be invoked against a defendant in an action involving a malfunctioning elevator (see Miller v Schindler El. Corp., 308 A.D.2d 312 ), however, it may only be applied if it can be established that: 1) the misleveling of the elevator, would not ordinarily occur in the absence of negligence; 2) when the accident occurred, it was within the exclusive control of the defendant; and 3) nothing plaintiff did in any way contributed to the happening of the event (Hodges v Royal Realty Corp., 42 A.D.3d 350 [1st Dept 2007]).
The doctrine of res ipsa loquitur is not applicable to this case because there is no evidence that the elevator was within D&D Elevator's exclusive control. The Contract did not vest D&D Elevator with total responsibility for the daily operation, repair, and maintenance of the elevator. Pursuant to the Contract, D&D Elevator agreed to "regularly examine, adjust and lubricate the machine as required, and when conditions warrant. . . repair" a limited list of parts. D&D Elevator did not maintain the elevator during off hours or on weekends and if work was needed at those times, a service call needed to be made. If repairs of parts or components not listed in the Contract were required, a proposal had to be sent to the Building Defendants for approval prior to any repairs being made. Accordingly, plaintiff would not be able to demonstrate that D&D Elevator had exclusive control of the elevator.
Third-Party Complaint
In their third-party complaint, the Building Defendants assert claims for common-law indemnification, contribution, contractual indemnification and breach of contract for failure to procure insurance.
"The right to contractual indemnification depends upon the specific language of the contract" (Sovereign Bank v Biagioni, 115 A.D.3d 847, 848 [2d Dept 2014] [internal citations and quotation marks omitted]). The Contract here is not only silent with regards to any requirement for D&D Elevator to indemnify Waterview, but it specifically provides for only Waterview to indemnify Arco Elevator. Moreover, there is no provision in the Contract that requires that Arco Elevator to procure insurance and name the Building Defendants as additional insureds. Accordingly, the third-party claims for contractual indemnification and breach of contract are dismissed.
With respect to the claims for common-law indemnification and contribution, these causes of action are similarly dismissed. "Common-law indemnification is predicated on 'vicarious liability without actual fault'" by the party seeking indemnity (Edge Mgt. Consulting, Inc. v Blank, 25 A.D.3d 364, 367, 807 N.Y.S.2d 353 [1st Dept], Iv dismissed 7 N.Y.3d 864, 857 N.E.2d 1139, 824 N.Y.S.2d 608 [2006], quoting Trump Vil. Section 3 v New York State Hous. Fin. Agency, 307 A.D.2d 891, 895, 764 N.Y.S.2d 17 [2003], Iv denied 1 N.Y.3d 504, 807 N.E.2d 893, 775 N.Y.S.2d 780 [2003]). Since the Court finds no basis for liability to plaintiff by D&D Elevator, there is no basis for the award of common-law indemnification and contribution (see Nieves-Hoque v 680 Broadway, LLC, 99 A.D.3d 536, 537, 951 N.Y.S.2d 870 [1st Dept 2012]). Accordingly, the third-party complaint is dismissed.
Spoliation
In view of the foregoing, the Court need not address the portion of D&D Elevator's motion for spoliation.
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendant D&D Elevator Maintenance Inc. dismissing plaintiffs complaint, all cross-claims and the third-party complaint against it is granted in its entirety; and it is further
ORDERED, that the portion of the motion by defendant D&D Elevator Maintenance, Inc. for spoliation is denied as moot; and it is further
ORDERED, that the Clerk is directed to enter judgment in favor of defendant D&D Elevator Maintenance, Inc.; and it is further
ORDERED, that movant shall serve a copy of this order with notice of entry within 45 days.
This constitutes the decision and order of this court.