| Fofana v 41 W. 34th St., LLC |
| 2010 NY Slip Op 01830 [71 AD3d 445] |
| March 9, 2010 |
| Appellate Division, First Department |
| Mohammad Fofana, Respondent, v 41 West 34th Street,LLC, et al., Appellants, et al., Defendants. |
—[*1] Vogel & Rosenberg, New York (Stuart DiMartini of counsel), for respondent.
Order, Supreme Court, Bronx County (Nelson S. RomÁn, J.), entered September 16,2008, which denied the motion of defendants-appellants 41 West 34th Street, LLC, GSLEnterprises, Inc., Winoker Realty Co., Inc., and Midboro Holdings Co., LLC, for summaryjudgment dismissing the complaint and all cross claims as against them, unanimously reversed,on the law, without costs, the motion granted, and the complaint and all cross claims against saiddefendants dismissed. The Clerk is directed to enter judgment in favor of defendants-appellantsaccordingly.
Plaintiff Mohammad Fofana instituted this action to seek damages for injuries sustainedwhen he fell into the freight elevator shaft of 64 W. 35th Street in Manhattan on February 6,2004. The land on which the building was situated was owned by defendant 41 West 34th Street,and leased to defendant Midboro. Midboro owned the building, which Winoker managed.Defendant Alliance Elevator Co. was responsible for maintaining the freight elevator. GSL hadtransferred the subject property to 41 West 34th Street in 2001. Fofana had been to the buildingregularly before the date of the accident, bringing customers in order to purchase bootleg CDsand DVDs from "Mr. Ba," whose office was on the fourth floor. On the day of the accident,Fofana brought two customers to Mr. Ba's. After nobody answered the door, Fofana went to lookfor Mr. Ba while his customers stayed behind. Fofana then saw Mr. Ba, who said that he wouldtell his brother to let Fofana into the office. When Fofana returned to Mr. Ba's office, RobertHaynes, an individual who also sold CDs and DVDs, opened the door. Fofana's customers werealready inside. Haynes, who allegedly was trying to take away Fofana's customers, apparentlywould not let Fofana into the office. When Fofana tried to enter, Haynes pushed him into thehallway, where a scuffle ensued. Eventually both Fofana and Haynes fell against the elevatordoor, which had been closed. The door opened, and both individuals then fell into the shaft.
On December 3, 2004, Fofana commenced an action against, inter alia, 41 West, GSL, andWinoker, and on February 28, 2006, he commenced a separate action against Midboro. Bothactions were filed in Supreme Court, New York County.[*2]
Previously, on August 5, 2004, Haynes had commenced apersonal injury action in Supreme Court, Bronx County, against several of the same defendants.Eventually, the Haynes action was consolidated in the Bronx with plaintiff's two NewYork County actions. Fofana was impleaded as a third-party defendant in the Haynesaction.
By notice dated October 5, 2006, the defendants in the Haynes action moved forsummary judgment on the grounds, inter alia, that the evidence established that the freightelevator complied with the elevator code in effect when built, and contained no defects at thetime of the accident. They contended that the elevator door was caused to be opened by the forceof being struck by plaintiff's and Haynes's weight, as the two fought.
On August 17, 2007, the trial court granted the motion, on the ground, inter alia, that therewas no evidence that defendants had any notice that the fourth floor hoistway doors had beendefective prior to the incident. In an order entered May 19, 2009, this Court upheld the dismissalof the complaint, finding that defendants had made a prima facie showing that the accident wasnot caused by any defect in the hoistway door (62 AD3d 519, 521 [2009]). In particular, theCourt noted that an elevator inspector from the New York City Department of Buildings whohad inspected the accident scene within 80 minutes after the accident, found that the slidingpanel for the elevator door "was bent and protruded into the hoistway in a manner indicating thata substantial horizontal force had been exerted against the sliding panel" (id. at 520). TheCourt also observed that the evidence indicated that there had not been any problems with thehoistway doors before the accident occurred (id.).
By notice dated August 31, 2007, two weeks after the trial court granted summary judgmentin the Haynes action, the defendants in the Fofana action moved to amend theiranswers to assert the affirmative defenses of collateral estoppel and res judicata, and, upon thegranting of said relief, for dismissal on those grounds pursuant to CPLR 3211 (a) (5).
By order entered January 15, 2008, the court granted leave to amend, but denied the motionto dismiss. In so doing, the court found that, as discovery in the Fofana action had notbeen completed at the time of the Haynes motion, Fofana was not in a position tomeaningfully litigate the issues raised on the motion to dismiss.
Subsequently, on February 19, 2008, defendants, who did not appeal from the January 15order, moved for leave to file a summary judgment motion and, upon the granting of leave, forsummary judgment dismissing the complaint. In support of their motion, defendants noted thatthe Haynes note of issue had been filed on March 7, 2006, while the note of issue in thiscase was only filed on May 7, 2007. They also observed that the Haynes summaryjudgment motion had been served on all parties to the action, including Fofana, who was athird-party defendant in that action.
Defendants argued they had a reasonable belief that plaintiff, a party to the Haynesaction, would be bound by the Haynes decision, which was dispositive of all the issuesherein. Thus, they claimed, they made a motion to dismiss pursuant to CPLR 3211 (a) (5), ratherthan a motion for summary judgment pursuant to CPLR 3212. They aver that this reasonablebelief constitutes "good cause" for the delay in moving for summary judgment. In opposition,Fofana argued that defendants failed to show why they could not have sought alternative reliefwhen filing the motion to dismiss, and that the excuse was akin to inexcusable law office failure.
The trial court denied the motion as untimely, finding that the proffered excuse constitutedlaw office failure, with the result that the requisite good cause to entertain the motion had notbeen shown. The court reasoned that defendants should have recognized that the motion [*3]to dismiss could be denied, and thus the motion for summaryjudgment should have been made with the prior motion. We reverse.
CPLR 3212 (a) provides that the "court may set a date after which no [dispositive] motionmay be made," and, "[i]f no such date is set by the court, such motion shall be made no later thanone hundred twenty days after the filing of the note of issue, except with leave of court on goodcause shown." In Brill v City of NewYork (2 NY3d 648 [2004]), the Court of Appeals made clear that the statutory deadlineshould be strictly enforced, in order to prevent the filing of "[e]leventh-hour summary judgmentmotions," a practice that "ignores statutory law, disrupts trial calendars, and undermines thegoals of orderliness and efficiency in state court practice" (id. at 650-651). It concludedthat the "good cause" called for by CPLR 3212 (a) requires a "satisfactory explanation for theuntimeliness—rather than simply permitting meritorious, nonprejudicial filings, howevertardy" (id. at 652; see alsoMiceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]). This Court hassubsequently observed that "courts may not excuse a late motion, no matter how meritorious,upon a perfunctory claim of law office failure" (Azcona v Salem, 49 AD3d 343 [2008]).
In this case, however, it is undisputed that defendants made a timely motion to dismiss onthe grounds of collateral estoppel. Moreover, in defending the "failure" to make a simultaneousmotion for summary judgment, they noted that Fofana, as a third-party defendant in theHaynes action, had been served with the motion papers. Regardless of whether he choseto submit papers in opposition to the motion, he was put on notice that the defendants weretaking the position that the elevator door was not defective prior to the accident, and that theaccident occurred as a result of the force exerted by the weight of the two combatants as they fellagainst the door. He thus had the opportunity to litigate the issue, and yet declined. Furthermore,since the note of issue had not yet been filed in his own action, Fofana still had the opportunityto pursue further discovery with regard to this defense, in the event such a motion was made inhis own case.
Thus, defendants' averment that they had good cause not to file a motion for summaryjudgment contemporaneously with the motion to dismiss is valid. The disposition of theHaynes summary judgment motion provided sufficient grounds either to invokecollateral estoppel or to dismiss the Fofana case. The conditions for the applicability ofcollateral estoppel are an identity of issue which has been necessarily decided in the prior actionand is decisive of the present action, and a full and fair opportunity to contest the decision nowsaid to be controlling (Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65, 71[1969]). The issue of whether the elevator was defective was at the heart of the Haynescase, and Fofana was a party to that action. Even as a third-party defendant he had a vestedinterest in opposing any contention that the elevator door was not the cause of the accident. Likethe codefendants in Schwartz, he was in every respect an antagonist to thedefendants/third-party plaintiffs who impleaded him, and who asserted that the elevator door wasnot defective (id. at 72).
We therefore conclude that defendants were not guilty of law office failure in not alsomoving for summary judgment.
Fofana nonetheless argues that even if the motion for summary judgment is entertained onthe merits, there are factors in his case which distinguish his claim from that which was assertedby Haynes. While the parties all agree that the direct cause of the accident was the force exertedupon the freight elevator doors, Fofana contends that a question of fact exists as to whetherdefendants violated industry standards in failing to upgrade the resistance forces of the [*4]hoistway doors at the time of a significant prior renovation.Fofana's expert, Harlan Fair, asserted that industry standards required that "maintenance, repairs,and replacements shall conform to . . . Code requirements at the time of anyalteration," that ASME (American Society of Mechanical Engineers) A17.1-2000 required thatnew components be installed in conformity with the standard requiring that the doors withstand560 pounds of resistance, and that "[a]ltered elements of existing elevators shall comply withASME A17.1." Yet, nothing in the foregoing language required the owner to upgrade the forceresistance of the doors when the doors themselves were not actually replaced, and when there isno evidence that the doors were previously demonstrated to be defective. We thus conclude thatthe sole proximate cause of the accident was the combatants' exertion of force against theelevator door, and direct that summary judgment should be granted. Concur—Gonzalez,P.J., Tom, Andrias, Nardelli and Richter, JJ.