| Ianotta v Tishman Speyer Props., Inc. |
| 2007 NY Slip Op 09690 [46 AD3d 297] |
| December 11, 2007 |
| Appellate Division, First Department |
| Gloria Ianotta, Appellant-Respondent, v Tishman SpeyerProperties, Inc., et al., Respondents-Appellants, and New York Elevator Company, Respondent.Tishman Speyer Properties, Inc., Third-Party Plaintiff-Respondent, v New York ElevatorCompany, Third-Party Defendant-Appellant. |
—[*1] Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), forrespondents-appellants. Babchik & Young, LLP, White Plains (Daniel J. Quart of counsel), forrespondent/appellant.
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 sustainedwhen the doors of an elevator unexpectedly closed on plaintiff, insofar as appealed from aslimited by the briefs, granted NY Elevator's cross motion for summary judgment dismissing thecomplaint as against it, granted Tishman's motions for summary judgment to the extent offinding NY Elevator conditionally liable to Tishman for contractual indemnification anddismissing the cause of action asserted against Tishman denominated as "negligence," and deniedTishman'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 assertedagainst Tishman denominated as "negligence," dismiss the cause of action asserted againstTishman denominated as "negligence/res ipsa loquitur," and to reinstate the cause of action fornegligence asserted against NY Elevator, and otherwise affirmed, without costs.
The amended complaint contains three causes of action: (1) "negligence" against [*2]Tishman, (2) "negligence/res ipsa loquitur" against Tishman, and(3) "negligence" against NY Elevator. The motion court dismissed (1), sustained (2), anddismissed (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 allegeddefective condition of the elevator in which she was injured, where it does not appear that theincidents noted in the elevator service report log on which plaintiff relies "were of a similarnature to the accident giving rise to this lawsuit" and "were caused by the same or similarcontributing factors" (ChunhyeKang-Kim v City of New York, 29 AD3d 57, 60-61 [2006]; Mitchell v New York Univ., 12 AD3d200, 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 enteredthe elevator right behind her coworker and that another coworker had to pry the doors open tofree her, and the safety edge on the elevator was not a rubber bumper that plaintiff could havetouched or put pressure on to cause the doors to retract but a device that used infrared beams todetect 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' grabhandle 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 theplaintiff), each of which was either embedded in doorframes or otherwise out of the public'snormal reach as they passed through the open doors"]). Thus, as between defendants and themembers of the public passing through the elevator doors without access to these mechanismsdesigned to make the doors retract, " 'the greater probability [of responsibility for the allegedmalfunction] lies at defendant's door' " (Stone, 353 F3d at 158, quotingDermatossian, 67 NY2d at 227).[FN*]
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 fornegligence 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 separatetheory of liability but merely "a common-sense application of the probative value ofcircumstantial evidence"]). We also modify to reinstate the complaint as against NY Elevatorsince "neither plaintiff's failure to specifically plead res ipsa loquitur nor the allegation of specificacts of negligence . . . constitutes a bar to the invocation of res ipsa loquitur wherethe 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 fromrelying on res ipsa once evidence of negligence has been introduced]).
The motion court correctly granted conditional summary judgment to Tishman on its [*3]cross claim for contractual indemnification against NY Elevator inthe absence of any showing of actual negligence on Tishman's part, and where, under theirexclusive, full-service contract, NY Elevator assumed responsibility for the maintenance, repair,inspection and servicing of the elevators, and agreed to indemnify Tishman for any injuriesarising 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 itsown consultant's recommendation to upgrade certain elevator equipment was countered by theconsultant, who showed that he never recommended upgrading the component that plaintiff'sexpert claims had failed. Concur—Mazzarelli, J.P., Sullivan and Sweeny, JJ.
Catterson, J., dissents in a memorandum as follows: I respectfully dissent because I believethat this case is indistinguishable from our holding in Santoni v Bertelsmann Prop., Inc. (21 AD3d 712 [2005]), and thatthe doctrine of res ipsa loquitur cannot cure the deficiencies in the plaintiff's proof. I concur withthe majority's conclusion that res ipsa cannot exist independently of proof of some negligence.(Abbott v Page Airways, 23 NY2d 502 [1969].) The record, however, does not establishany negligence on the part of the landlord and so the doctrine should not be applied.
Res ipsa permits a jury to draw the inference of negligence from the circumstance of anoccurrence when the plaintiff can establish that: (1) the event is of a kind that ordinarily does notoccur in the absence of someone's negligence, (2) it was caused by an agency or instrumentalitywithin the exclusive control of the defendant, and (3) it was not due to any voluntary action orcontribution on the part of the plaintiff. (Dermatossian v New York City Tr. Auth., 67NY2d 219, 226 [1986].)
In pursuit of res ipsa, the plaintiff contends that the elevator door mechanisms that mustnecessarily have failed include "an imbedded laser-light door safety device, motion sensor,control box, micro-processor, pressure sensor, and/or other related door mechanisms," i.e.,mechanisms that "were not open or available to her or to other members of the general publicwho used Elevator No. 16." In this way, the plaintiff seeks to distinguish Feblot v New YorkTimes Co. (32 NY2d 486 [1973]) and Graham v Wohl (283 AD2d 261 [2001]),which the defendants contend hold that res ipsa is inapplicable to elevator door-strike cases.
In Feblot, the elevator door was equipped with a rubber safety edge bumper. Thedoor suddenly closed on the plaintiff. The Court of Appeals found that the plaintiff had as muchcontrol over the operation of the elevator's doors as the defendant did, if not more, because shewas the one who activated the mechanism which controlled their operation. Moreover, she wasthe one who determined when and how and under what circumstances she would enter theelevator. (Feblot, 32 NY2d at 496.) The Court found that even if the doors started toclose on her, the plaintiff: "still had it within her power to cause them to instantly reopenautomatically by merely touching the rubber safety edge on the inside of the door with her hand,as countless people entering and leaving elevators routinely do every day when the door of anautomatic self-service door starts to close before they are completely inside or outside theelevator, as the case may be." (Id. at 496.)[*4]
In Graham, this Court found that the plaintiff'sversion of the incident, accepted as true, did not rule out the possibility that her injury was causedby her own voluntary actions because she chose when to enter the elevator and apparently wasnot watching the door when she entered. According to her deposition testimony, her companion,who was at her side and closer to the closing door, was able to step out of its way. In addition, theplaintiff did not claim that she made any attempt to put pressure on the door's safety bumper suchas might have caused the door to retract. (Graham, 283 AD2d at 261.)
Feblot and Graham do not announce a categorical bar to applying res ipsa inelevator door-strike cases. Exclusivity of control depends on the particular facts of each case.(See Stone v Courtyard Mgt. Corp., 353 F3d 155 [2003].) In Stone, relied uponby the plaintiff, the Second Circuit held that res ipsa was applicable where the plaintiff wasinjured by the malfunction of an automatic door at the hotel; not an elevator door. The districtcourt granted summary judgment to the hotel and the company that manufactured and installedthe door and repaired it when needed on the ground that the exclusive control prong of res ipsahad not been sufficiently established. The plaintiff claimed that the mechanisms, one or more ofwhich would have necessarily failed, were the control box, the motor that operated the door, themotion detector, and/or the presence sensor.
The Second Circuit reversed, distinguishing Dermatossian (67 NY2d at 227), inwhich the plaintiff, as he stood up to get off a city bus, struck his head on a defective "grabhandle" that was projecting straight down from the ceiling of the bus instead of at the customary45-degree angle. The Court of Appeals in that case held res ipsa inapplicable, on the ground that"[t]he proof did not adequately exclude the chance that the handle had been damaged by one ormore of the defendant's passengers who were invited to use it." (Id. at 228.) InStone, the Circuit Court found that, unlike the grab handle in Dermatossianwhich was "continuously available for use by [bus] passengers" (Dermatossian, 67 NY2dat 228), "the public did not 'generally handle' the motor, micro-processor, sensors, or control boxat issue in [Stone], each of which was either embedded in doorframes or otherwise out ofthe public's normal reach as they passed through the open doors" (Stone, 353 F3d at 158),and that "as between Marriott and the many persons passing in and out of the entrance to theHotel every day without access to these mechanisms, 'the greater probability [of responsibility forthe alleged malfunction] lies at defendant's door.' " (Id., quoting Dermatossian, 67NY2d at 227.)
In my view, this approach abrogates the long-standing principle that the plaintiff is requiredto nonetheless demonstrate that there is sufficient "circumstantial evidence of elevator doormalfunction . . . to permit the inference of negligent maintenance as to somemechanical device controlling the operation of the door over which only the defendant hascontrol." (Feblot, 32 NY2d at 498 [Breitel, J., concurring].)
In the instant case, the plaintiff resorts to the invocation of res ipsa rather than puttingforward any proof as to the mechanical malfunction that is alleged to have caused theaccident. This is nothing more than resorting to the mere happening of an accident as proof ofnegligence; a position that has had no support in New York law for more than a century. (Seee.g. Eaton v New York Cent. & Hudson Riv. R.R. Co., 195 NY 267 [1909].)
The unsworn expert report submitted by the plaintiff in opposition to the motions containsnothing but vague conclusions that the negligence consisted of either failure of [*5]"monitoring the elevator companies [sic] work" or failure to"maintain the safe edge door system to mandated code requirement."[FN*]There is no empirical evidence supporting either conclusion. As such, the expert's opinion isnothing more than unsworn, and thus inadmissible, speculation. Res ipsa simply cannot rest uponsuch flimsy evidence.
Footnote *: Contrary to the argument of thedissent, our decision in Santoni vBertelsmann Prop., Inc. (21 AD3d 712 [2005]) does not compel a different result. Theissue in Santoni involved the propriety of the denial of a motion for summary judgmentbased upon lack of notice of the defective condition. We reversed, holding that plaintiff'sevidence was not sufficient to defeat defendants' motions. Here, we also found plaintiff'sevidence on the question of notice insufficient for similar reasons.
Footnote *: The only physical deficiencynoted by the expert during an on-site inspection of elevator 16 in July 2005, four years after theaccident, was that the door closed with 32 pounds of torque, two pounds in excess of the designclosing pressure. The expert utterly failed to explain the significance of a mere two-pounddeviation four years later.