Ianotta v. Tishman Speyer Properties, Inc.

46 A.D.3d 297, 852 N.Y.S.2d 27

Opinions

Order, Supreme Court, New York County (Richard F. Braun, J.), entered May 16, 2006, which, in an action against the owner and managing agent of an office building (collectively, Tishman) and an elevator maintenance company (NY Elevator) for personal injuries sustained when the doors of an elevator unexpectedly closed on plaintiff, insofar as appealed from as limited by the briefs, granted NY Elevator’s cross motion for summary judgment dismissing the complaint as against it, granted Tishman’s motions for summary judgment to the extent of finding NY Elevator conditionally liable to Tishman for contractual indemnification and dismissing the cause of action asserted against Tishman denominated as “negligence,” and denied Tishman’s motions with respect to the cause of action asserted against it denominated as “negligence/res ipsa loquitur,” modified, on the law, to reinstate the cause of action asserted against Tishman denominated as “negligence,” dismiss the cause of action asserted against Tishman denominated as “negligence/res ipsa loquitur,” and to reinstate the cause of action for negligence asserted against NY Elevator, and otherwise affirmed, without costs.

The amended complaint contains three causes of action: (1) “negligence” against Tishman, (2) “negligence/res ipsa loquitur” against Tishman, and (3) “negligence” against NY Elevator. The motion court dismissed (1), sustained (2), and dismissed (3) after noting that res ipsa loquitur was not pleaded against NY Elevator.

Plaintiff fails to raise an issue of fact as to whether defendants had notice of the alleged defective condition of the elevator in which she was injured, where it does not appear that the incidents noted in the elevator service report log on which plaintiff relies “were of a similar nature to the accident giving rise to this lawsuit” and “were caused by the same or similar contributing factors” (Chunhye Kang-Kim v City of New York, 29 AD3d 57, 60-61 [2006]; Mitchell v New York Univ., 12 AD3d 200, 201 [2004]). However, the facts warrant application of the doctrine of res ipsa loquitur (see generally Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226-227 [1986]), where plaintiff testified that the elevator doors were open for a second or two before she entered the elevator right behind her coworker and that another coworker had to pry the doors open to free her, and the safety edge on the elevator was not a rubber bumper that plaintiff could have touched or put pressure on to cause the doors to retract but a device that used infrared beams to detect the presence of passengers (cf. Feblot v New York Times Co., 32 NY2d 486 [1973]; Graham v Wohl, 283 AD2d 261 [2001]; see Stone v Courtyard Mgt. Corp., 353 F3d 155, 158 [2003] [distinguishing Dermatossian, unlike a bus’ grab handle that the public is invited to use, “the public did not ‘generally handle’ the motor, micro-processor, sensors, or control box (for the hotel’s automatic door that closed on the plaintiff), each of which was either embedded in doorframes or otherwise out of the public’s normal reach as they passed through the open doors”]). Thus, as between defendants and the members of the public passing through the elevator doors without access to these mechanisms designed to make the doors retract, “ ‘the greater probability [of responsibility for the alleged malfunction] lies at defendant’s door’ ” (Stone, 353 F3d at 158, quoting Dermatossian, 67 NY2d at 227).

Footnotes

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We modify to reinstate the “negligence” cause of action, against Tishman, and dismiss the “negligence/res ipsa loquitur” cause of action, simply to clarify that without a cause of action for negligence there is no viable cause of action to which to apply the doctrine of res ipsa loquitur (see Abbott v Page Airways, 23 NY2d 502, 512 [1969] [res ipsa loquitur is not a separate theory of liability but merely “a common-sense application of the probative value of circumstantial evidence”]). We also modify to reinstate the complaint as against NY Elevator since “neither plaintiffs failure to specifically plead res ipsa loquitur nor the allegation of specific acts of negligence . . . constitutes a bar to the invocation of res ipsa loquitur where the facts warrant its application” (Weeden v Armor El. Co., 97 AD2d 197, 201-202 [1983]; see also Abbott, 23 NY2d at 512 [a plaintiff generally cannot be precluded from relying on res ipsa once evidence of negligence has been introduced]).

The motion court correctly granted conditional summary judgment to Tishman on its cross claim for contractual indemnification against NY Elevator in the absence of any showing of actual negligence on Tishman’s part, and where, under their exclusive, full-service contract, NY Elevator assumed responsibility for the maintenance, repair, inspection and servicing of the elevators, and agreed to indemnify Tishman for any injuries arising out of and resulting from the performance of that work (Ortiz v Fifth Ave. Bldg. Assoc., 251 AD2d 200 [1998]). NY Elevator’s assertion that Tishman failed to follow its own consultant’s recommendation to upgrade certain elevator equipment was countered by the consultant, who showed that he never recommended upgrading the component that plaintiff’s expert claims had failed. Concur—Mazzarelli, J.P., Sullivan and Sweeny, JJ.

Contrary to the argument of the dissent, our decision in Santoni v Bertelsmann Prop., Inc. (21 AD3d 712 [2005]) does not compel a different result. The issue in Santoni involved the propriety of the denial of a motion for summary judgment based upon lack of notice of the defective condition. We reversed, holding that plaintiff’s evidence was not sufficient to defeat defendants’ motions. Here, we also found plaintiffs evidence on the question of notice insufficient for similar reasons.