| Haynes v Estate of Goldman |
| 2009 NY Slip Op 03927 [62 AD3d 519] |
| May 19, 2009 |
| Appellate Division, First Department |
| Robert Haynes, Appellant, v Estate of Sol Goldman,Deceased, et al., Respondents, et al., Defendant. Alliance Elevator Company, Doing Business asUnitec Elevator Company, Third-Party Plaintiff-Respondent, v Mohammad Fofana, Third-PartyDefendant. Robert Haynes, Plaintiff, v Estate of Sol Goldman, Deceased, et al., Respondents,and Newmark & Company Real Estate, Inc., Appellant. (And a Third-PartyAction.) |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon ofcounsel), for Newmark & Company Real Estate, Inc., appellant. Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for Estate of SolGoldman, 41-45 West 34, LLC, Midboro Holding Company, and Winoker Realty Co,respondents. [*2]Geringer & Dolan, LLP, New York (John A. McCarthyof counsel), for Alliance Elevator Company, respondent.
Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered August 17, 2007,which granted motions by defendants Estate of Sol Goldman, 41-45 West 34, Midboro HoldingCompany, Winoker Realty Co. (collectively the Goldman defendants) and Alliance ElevatorCompany doing business as Unitec Elevator Company sued herein as Unitek/North AmericanElevator Service for summary judgment dismissing the complaint as against them, unanimouslyaffirmed, without costs. Order, same court and Justice, entered on or about January 18, 2007,which, to the extent appealed from, denied so much of the motion by defendant Newmark &Company Real Estate for summary judgment on its cross claim against Midboro Holding forcontractual indemnification, unanimously reversed, on the law, without costs, that portion of themotion granted, and the matter remanded for further proceedings.
On February 6, 2004, plaintiff and another person named Mohammad Fofana were injuredwhen they fell down the freight elevator hoistway from the fourth floor of a building located at45 West 34th Street. The premises were net leased to Midboro Holding at the time, and had beenmanaged by Newmark. Plaintiff had a dispute with Fofana and the two engaged in a fight in anarrow hallway on the fourth floor. According to Fofana's deposition, plaintiff pushed him intothe hoistway door. The complaint alleged negligence on the part of the building's owners, itsmanaging agent and Alliance, the owners' elevator service contractor. Plaintiff testified that thehoistway door opened after Fofana stepped backward and came into contact with it. Plaintifffurther swore that Fofana then clutched him in an effort to break his fall, causing both men to fallinto the hoistway.
According to the affidavit of Patrick McPartland, P.E., the Goldman defendants' expert, thedoors of the manually operated elevator in question consisted of two solid panels. The first panelopened by sliding right to left. The second panel was hinged to the wall. The sliding panel hungfrom a track by rollers, and was retained at the bottom by a six-inch guide which McPartlanddescribed as a "U" channel. Thomas Davies, a supervisor elevator inspector from the New YorkCity Department of Buildings, inspected the site within 80 minutes after the accident. Hetestified that the sliding panel guide was bent and protruded into the hoistway in a mannerindicating that a substantial horizontal force had been exerted against the sliding panel. Inexamining other parts of the building, Davies recorded loose and missing hanger track boltswhich rendered the 12th floor hoistway door ready to fall. Davies's report also noted that the restof the hoistway doors were loose and poorly secured. McPartland opined that the damage to theguide could only have been caused by the application of the kind of force described by Davies inexcess of 250 pounds. McPartland further opined that the applied force caused the sliding panelto swing out into the elevator shaft, creating the opening through which plaintiff and Fofana fell.Bernard Hughes, Alliance's elevator expert, who also inspected the elevator on the date of theaccident, similarly concluded that a heavy horizontal blow from the direction of the hallwaytoward the hoistway significantly damaged the guide, causing the sliding door panel to deflectout of the guide and into the hoistway. Davies testified that the sliding doors were preventedfrom moving horizontally by an interlock. Both Davies and Hughes inspected the interlock andfound it to be intact on the date of the accident. McPartland further opined that neither thehoistway door nor the elevator car could have been operated prior to the accident with the "U"[*3]channel in its bent condition. On this score, Lance Dixon andJames Louallen, building employees who operated the freight elevator, testified there had beenno problem with the fourth floor hoistway door before the accident occurred. Paul Reinert, anelevator mechanic employed by Alliance, stated in his affidavit that he found nothing out oforder with respect to the fourth floor hoistway door when he serviced the elevator on February 2and 4, 2004, two days before the accident. Hank Krussman, a licensed elevator inspector, hadconducted a Local Law No. 10 (1981) of City of New York inspection of the elevator and thesubject hoistway door five months before the accident, noting no problem with the hoistway doorat that time. Based upon the foregoing, the Goldman defendants and Alliance have made a primafacie showing that the accident was not caused by any defect in the hoistway door.
Plaintiff countered with two affidavits in November 2006 by Patrick A. Carrajat, an elevatorexpert who inspected the site 16 months after the accident. Referring to Davies's report of defectsin other hoistway doors, Carrajat opined that an insufficient "level of maintenance, repair andmodernization" and "an advanced state of disrepair" of the elevator doors were the proximatecauses of the accident. In this respect, Carrajat's opinion consisted of unfounded speculation,insufficient to raise a triable issue of fact as to the condition of the fourth floor hoistway door atthe time of the accident (see e.g. Avinav Verburg, 47 AD3d 1188, 1189 [2008]). As noted above, Davies, McPartland andHughes opined that the door guide was bent by a substantial horizontal force. Carrajat tried torefute these opinions with more speculation that freight door guides could have been damaged byobjects such as hand trucks or carts. However, Carrajat did not contradict McPartland's opinionthat neither the hoistway door nor the elevator car could have been operated with the guide in itsbent condition. Carrajat's affidavits were further flawed by their failure to address the findings byDavies and Hughes that the interlock, which secured the sliding door, was intact after theaccident. Without identifying any relevant component part, Carrajat concluded one of hisaffidavits with the statement that the hoistway door was in an "advanced state of decay anddeterioration." The other affidavit ended with the legal opinion that there are "many triableissues of fact" relating to defendants. These affidavits were insufficient to raise any triablefactual issue because they are speculative and lacking in foundation (see Santoni v Bertelsmann Prop., Inc.,21 AD3d 712, 715 [2005]). Accordingly, summary judgment was properly granted in favorof the Goldman defendants and Alliance.
Supreme Court, however, should have awarded Newmark contractual indemnificationagainst Midboro, having found that Newmark, like the other defendants, did not create or havenotice of any defect that could have caused the accident. Although an indemnification clause thatpurports to insulate the indemnitee from liability for its own negligence is void under GeneralObligations Law § 5-322.1, the statute does not apply where, as here, the indemnitee isfound to have been free of negligence (Crouse v Hellman Constr. Co., Inc., 38 AD3d 477, 478 [2007]).[*4]The absence of a recitation in the clause that the obligation toindemnify is limited to what the law allows does not dictate a contrary conclusion (id.).Concur—Gonzalez, P.J., McGuire, Moskowitz, DeGrasse and Freedman, JJ.