Opinion
112302/2007.
February 22, 2011.
The following papers, numbered 1 to 4 were read on this motion for summary judgment.
PAPERS NUMBERED 1 2, 3 4
Notice of Motion/Order to Show Cause — Affidavits — Exhibits Notice of Cross Motion/Answering Affidavits — Exhibits Replying Affidavits — Exhibits Cross-Motion: [] Yes [X] NoUpon the foregoing papers,
In this labor law action, defendant Bertelsmann, Inc. s/h/a Bertelsmann Property, Inc. (Bertelsmann) moves for an order dismissing the complaint as against it pursuant to either CPLR 3211 (a) (7), or CPLR 3212. Bertelsmann asserts that the complaint fails to state a cause of action against it and/or that a summary judgment dismissal is warranted on the grounds that: (1) Bertelsmann did not own or control the property at the time of the accident and therefore, cannot be held vicariously liable for plaintiff's accident; and (2) there would be no triable issue of fact as to negligent hiring even were plaintiff able to prove that Bertelsmann hired the entity, Schindler Elevator Corporation (Schindler), which designed and constructed the elevator car involved in the plaintiff's accident. Plaintiff opposes the motion, as do defendants Virgin Entertainment Group, Inc. and Virgin Megastores (USA), L.P. (together, Virgin Megastores) who, essentially, adopt the arguments proffered by plaintiff.
The injured plaintiff in this action is elevator mechanic Mark Versace (Versace). Versace alleges that he was caused to sustain serious physical injuries on January 6, 2006, while he was working for third-party defendant Excel Elevator Escalator, Corp. (Excel) and assigned to repair an elevator located within a retail space occupied by a Virgin Megastore at 1540 Broadway, in the Times Square section of Manhattan.
It is undisputed that, by Agreement of Lease, dated December 12, 1994, Virgin Megastores leased a portion of the commercial retail unit and restaurant unit at 1540 Broadway, a/k/a 175 West 45th Street, from Bertelsmann. At the beginning of its tenancy, Virgin Megastore did a build-out of the retail space. Outside contractors were brought in to perform the work, and the finished space included the subject "holeless hydraulic" elevator and one or more escalators to convey Virgin Megastores' customers between floors. Schindler was the company hired to design, construct, and install the subject elevator. Virgin Megastores then hired Schindler to provide maintenance to its elevator and two escalators. This renewable maintenance agreement, originally dated July 30, 1997, was terminated in or about 2005, after which Virgin Megastores called Excel to handle the elevator's maintenance and repair.
Approximately two years prior to plaintiff's accident, 1540 Broadway, a Bertelsmann subsidiary, purchased the building from Bertelsmann. February 12, 2004 was the date of the contract of sale, and June 6, 2004, was the effective date of the sale/transfer of title. Although the building had been sold and "Bertelsmann Property, Inc." was dissolved soon thereafter, the building, evidently, is still referred to as the "Bertelsmann Building."
As stated above, the accident occurred on January 6, 2006. According to Versace, it was on that date that he received a call from Excel's main office directing him to repair a "shut down" elevator in the Virgin Megastore in Times Square. He arrived at around 3 P.M., and was directed to the second floor where the elevator car was "stuck." He also testified that when he reached the elevator car, he entered and worked on the elevator from inside the car, riding it up and down as he tested its functions. He stated that it was during a test run that the elevator car tilted and then suddenly dropped at what he described as a free fall. As a result, plaintiff was thrown to the floor of the elevator car and he sustained severe pain and injury to his lower body, and was disabled from his job.
At his deposition, Versace acknowledged that January 6, 2006 was not the first time he had been called to service the same elevator car, recalling at least one "trouble," or service call in the six months prior to his accident. Both times, he made what he referred to as a trouble call due to a "shut down," which he defined as an elevator's failure to run and/or respond to the call buttons inside the elevator car. Versace testified that blown fuses and a burnt pump motor had been the causes of the earlier problem.
Plaintiff commenced this action for damages due to the severity of the injuries he allegedly sustained on January 6, 2006. He filed his summons and complaint on or about September 5, 2007, and issue was joined by service of defendants' answers (with cross claims). Two third-party actions were instituted, one by Virgin Megastores against Excel, under Third-party Index No. 590125/08, and the second by Schindler against both Elpro, Inc. (Elpro) and Vertitron Midwest, Inc. under Second Third-party Index No. 590356/09. After much motion practice and the exchange of discovery, including examinations before trial, Bertelsmann served the instant motion.
Plaintiff's original action, bearing NY County Index No. 102210/06, was discontinued to allow additional time for plaintiff to add parties to his action.
Central to the motion is Bertelsmann's assertion that, as the prior owner of the property, it cannot be held liable for a dangerous condition on the property where, as here, a reasonable time had passed since title, possession and control of the building had passed from it to the new owner. Moreover, even if a dangerous condition did exist in 2004 (which Bertelsmann denies), the new owner had enough time to discover and remedy the condition, and no amount of additional discovery can alter that fact.
Among the documents submitted in support of its motion, are copies of: the 1994 lease between Bertelsmann and Virgin Megastores; the deed recording the 2004 sale of the property to 1540 Broadway; the 2004 lease between 1540 Broadway and Virgin Megastores; and the maintenance agreement between Virgin Megastores and Schindler. Also annexed are copies of 17 Excel invoices evidencing the repeated maintenance, service and/or repair work Excel was called upon to perform with respect to the subject elevator between April 2005 and January 6, 2006. All but three of the invoices were billed to Virgin Entertainment Inc. at a Los Angeles, California address. The other three invoices, for work Excel performed on the elevator on October 17, and November 18 and 20, 2005, were billed to defendant Nest International of Gloucester City, New Jersey.
According to Bertelsmann, the documents confirm that it had no involvement with the elevator since its initial purchase and installation back in 1994, and that it had no ownership interest, contact with, or control over, the building since the 2004 sale. Bertelsmann also denies having any knowledge or notice of the elevator's problem, and contends that the 17 invoices preclude any possibility that problems were either hidden by it or were unknown to the tenant (Virgin Megastores) and/or the new owner (1540 Broadway) at least as far back as April 2005. Therefore, Bertelsmann asserts that it cannot be held liable for the injuries Versace sustained by virtue of the elevator car's malfunction and that it is entitled to a dismissal of the complaint as against it.
In opposition, plaintiff and Virgin Megastores contend that the claims against Bertelsmann are not barred by the fact that it no longer owned the building at the time of the accident, and that Bertelsmann was negligent in hiring Schindler to design and construct the elevator. They argue that, because it has not yet been determined precisely what caused the elevator to tilt and fall, it is unclear how long that condition existed. Therefore, there is a possibility that the condition existed prior to the 2004 sale and that Bertelsmann was negligent in not discovering and remedying the problem and/or failing to disclose the existence of the problem. To this end, plaintiff and Virgin Megastores rely on Gramazio v 370 Lexington Ave., L.L.C. ( 40 AD3d 303 [1lst Dept 2007]) and Farragher v City of New York, ( 26 AD2d 494 [1st Dept 1966],affd 21 NY2d 756), and on Farragher's progenyArmstrong v Ogden Allied Facility Mgt. Corp. ( 281 AD2d 317 [1st Dept 2001]) and Bittrolff v Ho's Dev. Corp. ( 77 NY2d 896). These cases, which note the importance of denying a summary dismissal to a prior owner of property involved in an accident, do so, in large part, on the basis that the new owner did not have a reasonable opportunity to both discover the problem and remedy the problem. In affirming the motion court's denial of the defendants' motions inGramazio v 370 Lexington Ave., L.L.C., the Appellate Division stated
[w]hile liability for a dangerous condition on land generally does not extend to a prior owner, a narrow exception exists where the condition existed at the time of the conveyance and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known. Further, where the prior owner does not disclose a dangerous condition, and the new owner has no knowledge of it, liability remains with the prior owner until the new owner has had a reasonable time to discovery and remedy it.
( 40 AD3d at 304 [internal quotation marks and citations omitted]).
Reliance on these cases to prevent a dismissal of the complaint as against Bertelsmann is misplaced, as Versace's own testimony reveals that he, only months before, had been called to the same Virgin Megastore to repair the same elevator car which was, similarly, not running and/or responding to the call buttons. As stated above, the 17 invoices confirm that repeated service calls were made for this elevator after Bertelsmann sold the building. The service calls refute any possibility that the tenant and new owners did not have a reasonable time or opportunity in which to discover and remedy the elevator's condition regardless of whether the problem was one that had not been disclosed prior to the sale. Accordingly, there is no basis for holding Bertelsmann liable for Versace's accident and injuries based upon its prior ownership of the property. "It has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property" (Ritto v Goldberg, 27 NY2d 887, 889), and whether the ultimate responsibility for the elevator's maintenance and repair can properly be charged to any of the other named defendants is not at issue on this motion.
Versace also charges Bertelsmann with negligent hiring. These allegations, premised on Bertelsmann's purported engagement of Schindler to design and construct the subject elevator, must be dismissed as against this defendant.
Negligence . . . is conduct which falls below the standard established by law for the protection of others against unreasonable risk. It necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger. If one could not reasonably foresee any injury as the result of one's act, or if one's conduct was reasonable in the light of what one could anticipate, there would be no negligence, and no liability.
(Prosser and Keeton, Torts § 43, at 280 [5th ed]). The fact that an accident occurred involving the Schindler-built elevator does not, in and of itself, support a cause of action premised on negligent hiring. Although Bertelsmann's position on whether it was the entity that hired Schindler to design and construct the elevator is unclear, the record contains no evidence and no reasonable basis for inferring that Schindler had a propensity for designing and building dangerous and/or defective elevators, and neither plaintiff nor Virgin Megastores offer a basis for claiming that Bertelsmann knew or had reason to know of such propensity (see Sheila C. v Povich, 11 AD3d 120, 129 — 130 [1st Dept 2004]; Gomez v City of New York, 304 AD2d 374, 375 [1st Dept 2003]). Instead, repeated reference is made to the inability of Bertelsmann's witness (Kevin James Corcoran) to answer certain questions posed at his deposition, and argument is made that this court should exercise its power under CPLR 3212 (f) to deny the summary judgment motion.
A review of Corcoran's deposition transcript reveals that the unanswered questions focused on issues which have no bearing on whether the hiring of Schindler was negligent. To the extent that the opponents also appear to be raising the deficiency of Corcoran's responses in connection with the new owner's opportunity to remedy the problem, his responses were irrelevant to that issue as well. Plaintiff and Virgin Megastores offer surmise and conjecture as to what additional discovery might yield. However, it is well settled that "[a] grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence." Bailey v New York City Tr. Auth., 270 AD2d 156, 157 (1st Dept 2000). Neither party makes this showing, nor does either raise a triable issue of fact sufficient to forestall a summary dismissal of the complaint as against Bertelsmann. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).
Accordingly, it is
ORDERED that the motion by defendant Bertelsmann, Inc. s/h/a Bertelsmann Property, Inc., for an order dismissing the complaint is GRANTED and the complaint is dismissed as against Bertelsmann, Inc. s/h/a Bertelsmann Property, Inc., with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued as against the remaining defendants; and it is further
ORDERED that the remaining parties are directed to attend a status conference on March 29, 2011 in IAS Part 59, Room 103, 71 Thomas Street, New York, NY 10013 at 2:30 P.M. (the previously scheduled status conference on May 10, 2011 is hereby advanced to this date).
This is the decision and order of the court.