Opinion
700103/2014
01-20-2016
Susan Moskowitz, Plaintiff, v. Nouveau Elevator Industries, Inc., Defendant.
The following papers numbered 1 to 11 read on this motion by defendant, NOUVEAU ELEVATOR INDUSTRIES, INC., for an order pursuant to CPLR 3212 dismissing plaintiff's complaint:
Papers Numbered Notice of Motion-Affirmation-Exhibits-Memo. of Law......1 - 5 Affirmation in Opposition-Exhibit.......................6 - 8 Reply Affirmation-Exhibit...............................9 - 11
This is an action to recover for personal injuries that plaintiff allegedly sustained on April 5, 2011, on the premises at Touro College located at 75-31 150th Street, Queens, New York. Plaintiff alleges that the elevator misleveled approximately four to five inches above the floor causing her to trip and fall and suffer personal injuries. Defendant is an elevator company which had a contract with Touro College to perform preventative maintenance to the subject elevator on a monthly basis during the relevant time period.
Plaintiff commenced this action on January 7, 2014 by filing a summons and verified complaint. Defendant interposed a verified answer on April 10, 2014. A So-Ordered Stipulation was executed extending defendant's time to file for summary judgment to September 21, 2015. Therefore, this motion is timely.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557[1980]).
In support of the motion, defendant submits an attorney affirmation from Melissa Kobernitski, Esq.; a memorandum of law; a copy of the pleadings; a copy of plaintiff's bill of particulars; copies of the transcripts of the examinations before trial of plaintiff taken on November 13, 2014, Larry Lewandowski, an employee of defendant, taken on June 22, 2015, Kevin J. Fowler, a mechanic for defendant who inspected the subject elevator on the date of the incident, taken on August 20, 2015, and Walter Klebonas, a mechanic for defendant who performed monthly preventive maintenance in the subject elevator, taken on September 3, 2015; a copy of the contract between defendant and Touro College; a copy of the completed ticket listing; a copy of the time ticket regarding the subject elevator on the date of the incident; a copy of the incident reports; a copy of the Elevator Inspection and Test Report of December 30, 2010; and an expert affidavit from Jon B. Halpern, P.E.
Plaintiff testified that the alleged incident occurred on the second floor. She was with two students at the time of the incident, carrying an empty box, and wearing one and a half inch wedge heel shoes. Prior to the incident on the same day, plaintiff had taken the subject elevator without any incident. She states that she was entering the elevator when her foot hit concrete due to the elevator not stopping at floor level and she tripped into the elevator. She also states that she had personally witnessed occurrences like this ten to twelve times prior to the subject incident. Plaintiff testified that she was the person who others would come to tell if there was a problem with the elevators. In the eleven years prior to the incident, she testified that she called facilities to report something wrong with the elevator at least half a dozen times.
At his deposition, Mr. Lewandowski testified that he is familiar with the contract between Touro College and defendant. He states that prior to September of 2010, defendant was not involved in the maintenance of the subject elevators. He states that after reviewing the completed ticket listing, which is a computer printout of when defendant went to the building to perform preventive maintenance, defendant did not receive any complaints of mis-leveling regarding the subject elevator.
Mr. Fowler, who was called to inspect the elevator after plaintiff's incident, testified that he rode the subject elevator and did not find anything to repair. He concluded that he did not find anything wrong with the subject elevator.
Mr. Klebonas was responsible for the subject elevator's monthly maintenance. He testified that four days prior to the incident, on April 1, 2011, he did preventive maintenance on the subject elevator and found nothing wrong. He testified that no one ever told him that there was a problem with the subject elevator.
Defendant also submits the expert affidavit of Jon Halpern. Mr. Halpern identifies the documents he reviewed regarding the subject incident and opines that there is nothing in the record to indicate that the elevator misleveled. He states that the Department of Buildings records indicate that the subject elevator had a routine inspection performed in November of 2010 and the elevator was found to be properly maintained and safe to operate. He acknowledges that three deficiencies were cited on December 30, 2010, but that none of the cited deficiencies related to the leveling of the elevator or could have caused the subject incident.
Based on the above deposition testimony, defendant contends that there is no evidence establishing or creating an issue of fact as to whether defendant conducted negligent maintenance of the elevator or whether defendant had either actual or constructive notice of previous incidents regarding the subject elevator misleveling. Defendant further contends that due to the limited nature of the contract, defendant is not liable for the type of incident alleged herein.
In opposition, plaintiff contends that there is an issue of fact as to whether defendant negligently undertook the inspection and adjustment of the leveling of the subject elevator. Plaintiff further contends that she has established a prima facie case under the doctrine of res ipsa loquitor.
Plaintiff submits the expert affidavit of Patrick Carrajat affirming that based on the records of the Department of Buildings noting the same defects in successive inspections, defendant failed to perform proper routine preventive maintenance on the subject elevator. He further states that defendant's failure to notify the Department of Buildings deprived the plaintiff of the benefit of an unbiased, contemporaneous examination by a skilled inspector. Mr. Carrajat concludes that plaintiff did not cause or contribute to the misleveling of the elevator and that this type of incident and plaintiff's injuries do not occur in the normal operation of an elevator absent negligent maintenance.
"An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a 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 NY2d 553, 559 [1973]; see Koch v Otis El. Co., 10 AD2d 464 [1st Dept. 1960]). An inference of negligent inspection and repair in the maintenance of an elevator may be drawn from evidence that the elevator doors previously malfunctioned (see Fanelli v Otis El. Co., 278 AD2d 362 [2000]; Liebman v Otis El. Co., 127 AD2d 745 [2d Dept. 1987]).
Here, defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence establishing that it did not have actual or constructive notice of any defect in the elevator that would cause it to mislevel (see Tucci v Starrett City, Inc., 97 AD3d 811 [2d Dept. 2012]).
In opposition, plaintiff failed to produce evidence of a prior problem with the subject elevator that would have provided notice of the specific defect that allegedly caused the elevator to mislevel or offer any expert evidence that defendant could have discovered the defect through the exercise of reasonable care (see Lee v City of New York, 40 AD3d 1048 [2d Dept. 2007]; Meza v 509 Owners LLC, 82 AD3d 426 [1st Dept. 2011]; Karian v G & L Realty, LLC, 32 AD3d 261 [1st Dept. 2006]). While plaintiff produced an expert report, Mr. Carrajat's affidavit is vague, conclusory, and factually unsupported, and thus, fails to raise an issue of fact (see Kleinberg v City of New York, 27 AD3d 3178 [2d Dept. 2006]; Karian v G & L Realty, LLC, 32 AD3d 261 [1st Dept. 2006]). Although Mr. Carrajat states that defendant failed to perform proper routine preventive maintenance on the subject elevator, referring to the Department of Buildings records in which the same defects were noted in successive inspections, he fails to state that these defects concerned misleveling or would cause an elevator to mislevel. Mr. Carrajat also fails to indicate which components failed and caused the subject incident. Thus, he cannot conclude that proper maintenance would have prevented the incident from occurring. Additionally, even though plaintiff states that she witnessed the elevator misleveling before her accident, there is no evidence that defendant was ever notified of such.
Plaintiff's argument that defendant failed to have the subject elevator inspected after the accident before returning the elevator to service as required by NYC Building Code 27-1006, does not present an issue of fact as to defendant's negligence. Even if defendant did violate the Building Code, a failure to report the incident did not cause the subject incident and has no bearing on defendant's negligence.
Further, plaintiff cannot rely on res ipsa loquitur because she failed to demonstrate that the accident was one that would not ordinarily occur in the absence of someone's negligence, or that defendant had exclusive control of the elevator (see Tucci v Starrett City, Inc., 97 AD3d 811 [2d Dept. 2012]; Forde v Vornado Realty Trust, 89 AD3d 678 [2d Dept. 2011]; Espinal v Trezechahn 1-65 Ave. of Ams., LLC, 94 AD3d 611 [1st Dept. 2012]). Here, the contract provided that the owner retains the right to employ any other maintenance and/or repair contractors. Moreover, Mr. Halpern provided a non-negligent explanation for plaintiff's accident, specifically that elevators of this type can mislevel even when properly maintained due to a power surge or a loss of the electronic position which can cause the elevator to overshoot the landing and then subsequently relevel. Therefore, res ipsa loquitur is inapplicable here.
Accordingly, based upon the foregoing, it is hereby
ORDERED, that defendant's motion for summary judgment, dismissing plaintiff's complaint is granted and plaintiff's complaint is dismissed. Dated: January 20, 2016 Long Island City, NY ______________________________
ROBERT J. McDONALD
J.S.C.