Opinion
233722007.
Decided October 22, 2010.
Giuffre Law Offices, P.C., by John J. Giuffre, Esq., Floral Park, NY, for the Plaintiff.
4905 Owners Corp., First Management Corp., James C. Demetriou, and Tudor Realty Services Corp.: Margaret G. Klein Associates, by A. Jeffrey Spiro, Esq., New York, New York, for Defendants.
Coughlin Duffy, LLP, by Danielle M. DeFilippis Linda S. Strauss, Esq., 88 Pine St., New York, NY, For Defendant Centennial Elevator Industries, Inc.
This motion is by defendants 14905 Owners Corp., First Management Corp., James C. Demetriou, and Tudor Realty Services Corp. (Tudor) (collectively the building defendants) for summary judgment dismissing the complaint. A separate motion by defendant Centennial Elevator Industries Inc. (Centennial) seeks the same relief. Upon the foregoing papers, it is ordered that the motions are consolidated for the purpose of disposition and are determined as follows:
In this action to recover damages for personal injuries and wrongful death, it is alleged that on September 20, 2005, decedent Margaret J. Crimes suffered a fatal asthma attack after climbing five flights of stairs to reach her apartment when the elevator that serviced the wing of the cooperative apartment building in which she lived was not functioning. Defendant 14905 Owners Corp. is the owner of the premises where the incident happened, and defendant First Management Corp. was the managing agent for the building on the date of the occurrence. Defendant James Demetriou is First Management Corp.'s president and sole shareholder. Defendant Tudor was the building's managing agent before First Management Corp. was retained.
At all relevant times, defendant Centennial maintained and repaired the building's elevators pursuant to a preventive maintenance agreement with 14905 Owners Corp. Plaintiffs allege that defendants' negligence in, among other things, allowing the elevator to be and remain out of service in violation of Multiple Dwelling Law section 78, failing to properly maintain the elevator, and failing to timely repair the elevator, caused decedent's injuries and death.
The necessary elements of a cause of action for negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) injury proximately resulting from the breach ( see, Solomon v City of New York, 66 NY2d 1026, 1027; Akins v Glens Falls City School Dist., 53 NY2d 325, 333). Since the record establishes that these elements cannot be satisfied as to defendants Tudor, First Management Corp., and James C. Demetriou, those defendants are awarded summary judgment dismissing the complaint (CPLR 3212[b]).
As acknowledged by plaintiffs, who state that they do not oppose the part of the motion that seeks summary judgment on behalf of Tudor, Tudor's role as managing agent for the subject building ended almost a year before the incident. Plaintiffs admit, in addition, that First Management Corp. and Demetriou were not in complete and exclusive control of the premises.
The management agreement between 14905 Owners Corp. and First Management Corp. demonstrates that the owner reserved to itself a significant amount of control over the maintenance of the premises. First Management Corp. and Demetriou thus did not have a comprehensive agreement that displaced the duty of 14905 Owners Corp. to maintain the premises safely as is necessary to allow the imposition of liability on a managing agent for nonfeasance ( see, Fung v Japan Airlines Co., Ltd. , 51 AD3d 861 [2nd Dept. 2008]; Hagen v Gilman Mgt. Corp. , 4 AD3d 330 [2nd Dept. 2004]).
With regard to defendant 14905 Owners Corp., the motion by the building defendants is denied. 14905 Owners Corp. does not attempt, on this motion, to demonstrate that it did not breach a duty owed to decedent, but argues only that any act or omission on its part was not a proximate cause of decedent's death. The discussion of proximate cause herein thus assumes such a breach by 14905 Owners Corp.
An act or omission is considered a cause of an injury if it was a substantial factor in bringing about the injury (Pattern Jury Instruction 2:70). Thus, to establish a prima facie case of proximate cause, a defendant's negligence must have been a substantial cause of the events which produced the injury ( see, Maheshwari v City of New York , 2 NY3d 288 , 295; Pironti v Leary , 42 AD3d 487 [2nd Dept. 2007]). Contrary to 14905 Owners Corp.'s contention, it cannot be said as a matter of law that its alleged negligence did not put in motion the agency by which decedent's injuries were inflicted, but merely furnished the condition or occasion for the occurrence of the event ( see, 1 NY PJI3d 2:70, at 383 [2010]; see generally, Sheehan v City of New York, 40 NY2d 496, 503; Rivera v City of New York, 11 NY2d 856).
This is not an instance in which a plaintiff who used the stairs due to an out of service elevator sustained injuries from a separate event, such as a slip and fall, that happened to occur while she was on the staircase ( cf., Bank v Lincoln Shore Owners, Inc., 229 AD2d 370 [2nd Dept. 1996]; Kerrigan v City of New York, 199 AD2d 367 [2nd Dept. 1993]). Rather, decedent allegedly suffered the asthma attack from which she subsequently died as a direct result of climbing the stairs to her fifth floor apartment. It is conceded by 14905 Owners Corp. that using the stairs was a foreseeable result of the lack of elevator service. A defendant need not foresee the precise manner in which an injury happens in order to incur liability ( see, Derdiarian v Felix Contr. Corp., 51 NY2d 308) and, even with the benefit of hindsight, it does not appear highly extraordinary that the alleged negligence of 14905 Owners Corp. brought about the harm suffered by decedent ( cf., Trojcak v Javcon Mach., Inc. , 18 AD3d 740 [2nd Dept. 2005]).
The asthma attack was not a legally intervening cause of decedent's injuries; the asthma attack was itself an injury, not an intervening act. Decedent's intervening act of climbing the stairs was a foreseeable act, and thus cannot constitute a superseding act which would break the causal nexus to the alleged negligence of 14905 Owners Corp. ( see, Kriz v Schum, 75 NY2d 25; Derdiarian, 51 NY2d at 315-316).
Furthermore, insofar as the issues are relevant at this juncture, the evidence submitted by 14905 Owners Corp. shows the existence of factual questions as to the time at which the elevator went out of service on the date of the incident and as to the frequency of prior elevator breakdowns. In addition, the proof does not establish, as asserted by 14905 Owners Corp. and Centennial, that the elevator repair was being performed when decedent arrived at the building.
Accordingly, summary relief based upon a lack of proximate cause is denied ( see, Elphage v New York City Health Hosps. Corp., 185 AD2d 295 [2nd Dept. 1992]).Whether 14905 Owners Corp. was negligent in providing and/or maintaining elevator service or in timely acting to repair the elevator remains to be determined.
The motion by Centennial is granted only to the extent of dismissing the causes of action asserted against Centennial insofar as they are based upon statutory violations. Centennial cannot be held liable pursuant to Multiple Dwelling Law section 78, which imposes a duty on building owners, and plaintiff has not identified any provisions of the Administrative Code of the City of New York that were allegedly violated by Centennial. In all other respects, the motion is denied.
The remaining part of Centennial's application for summary judgment is premised on the argument that it did not owe a duty to decedent. This contention is misplaced. An elevator company that enters into an agreement to maintain an elevator owes a duty of care to members of the public to correct conditions of which it is aware and to use reasonable care to discover and correct a condition which it ought to find ( Fanelli v Otis Elevator Co., 278 AD2d 362 [2nd Dept. 2000]; see also, Oxenfeldt v 22 N. Forest Ave. Corp. , 30 AD3d 391 [2nd Dept. 2006]; Martinez v Central El., Inc. , 8 AD3d 538 [2nd Dept. 2004]). The cases relied upon by Centennial do not stand for the broad proposition that the duty of an elevator company cannot be extended to someone injured while the elevator was out of service ( see, e.g., Public Administrator of the County of New York v Fifth Ave. Dev. Corp., 180 AD2d 473 [1st Dept. 1992]; Morales v P.S. Elevator, Inc., 167 AD2d 520 [2nd Dept. 1990]).
The courts in Public Administrator and Morales held that, under the particular facts presented, the plaintiffs' accidents were beyond the zone of the duty imposed on the elevator company to inspect and maintain. Unlike those cases, here, the injuries sustained by decedent allegedly arose directly from her use of the stairs, a reasonably foreseeable consequence of a non-functioning elevator, not from an unrelated event that occurred elsewhere or that happened to occur while she was on the stairs. Since Centennial owed a duty and the harm to decedent was within the class of reasonably foreseeable risks that the duty exists to prevent ( see, Sanchez v State of New York, 99 NY2d 247, 252), summary judgment dismissing the negligence claims against Centennial based upon the lack of a duty is denied ( See, e.g., Elphage, 185 AD2d at 295-296).
The issue as to whether Centennial breached its duty is not before the Court on this motion.