| Bauerlein v Salvation Army |
| 2010 NY Slip Op 04939 [74 AD3d 851] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Karl Bauerlein et al., Respondents-Appellants, et al.,Plaintiff, v Salvation Army et al., Respondents-Appellants, Alliance Elevator Group,LLC, Also Known as AEG, LLC, et al., Respondents, Landmark Elevator Consultants, Inc.,Defendant/Second Third-Party Defendant-Respondent-Appellant, Inclinator Company ofAmerica, Inc., Defendant/Second Third-Party Plaintiff-Appellant-Respondent, et al., Defendant.Alliance Elevator Company, Third-Party Plaintiff/Second Third-PartyDefendant-Respondent-Appellant; P.M. Associates, Third-Party Defendant/Second Third-PartyDefendant-Respondent; Schindler Group et al., Second Third-Party Defendants-Respondents;United Technologies Corporation of New York City et al., Second Third-PartyDefendants-Respondents-Appellants, et al., Third-Party Defendants. (And an AdditionalThird-Party Action.) |
—[*1] Gair, Gair, Conason, Steigman, MacKauf, Bloom & Rubinowitz, New York, N.Y. (WarrenJ. Willinger and Howard Hershenhorn of counsel), for plaintiffs-respondents-appellants. Rubin, Fiorella & Friedman LLP, New York, N.Y. (Steward B. Greenspan of counsel), fordefendant-respondent-appellant Salvation Army. Geringer & Dolan LLP, New York, N.Y. (John A. McCarthy of counsel), fordefendant-respondent-appellant Alliance Elevator Company, doing business as Unitec ElevatorCompany, third-party plaintiff/second third-party defendant-respondent-appellant, AllianceElevator Company, and second third-party defendant United Technologies Corporation of NewYork City and/or Unitec Elevator Services. Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), for [*2]defendant/second third-party defendant-respondent-appellant. LeClair Ryan, New York, N.Y. (Anthony S. McCaskey of counsel), for second third-partydefendant-respondent-appellant Sodexho.
In an action to recover damages for personal injuries, etc., (1) the defendant/secondthird-party plaintiff, Inclinator Company of America, Inc., appeals, as limited by its brief, fromso much of an order of the Supreme Court, Nassau County (Woodard, J.), entered November 5,2008, as denied its motion for summary judgment dismissing the complaint and allcounterclaims and cross claims insofar as asserted against it, (2) the plaintiffs Karl Bauerlein andDonna Bauerlein appeal from so much of the same order as denied their motion for summaryjudgment on the complaint against the defendant Salvation Army and denied their separate crossmotion for summary judgment on the complaint against the defendant/second third-partydefendant, Landmark Elevator Consultants, Inc., (3) the defendant Salvation Army appeals, aslimited by its brief, from so much of the same order as denied its separate motions forconditional summary judgment on its cross claim for common-law indemnification against thedefendant Alliance Elevator Company, doing business as Unitec Elevator Company, thethird-party plaintiff/second third-party defendant, Alliance Elevator Company, and thedefendant/second third-party defendant, Landmark Elevator Consultants, Inc., (4) the defendantAlliance Elevator Company, doing business as Unitec Elevator Company, and the third-partyplaintiff/second third-party defendant, Alliance Elevator Company, appeal, as limited by theirbrief, from so much of the same order as denied those branches of their cross motion which wereto dismiss the complaint insofar as asserted against the defendant Unitec Elevator ServicesCompany, to dismiss the second third-party complaint insofar as asserted against Unitec ElevatorServices, the second third-party defendants United Technologies Corporation of New York Cityand United Technologies Corporation of New York City and/or Unitec Elevator ServicesCompany, and for leave to renew those branches of their motion which were for leave to amendthe caption in the main, third-party, and second third-party actions by deleting Unitec ElevatorServices from the caption of the main action, deleting United Technologies Corporation of NewYork City and United Technologies Corporation of New York City and/or Unitec ElevatorServices from the caption of the second third-party action, and substituting the name "AllianceElevator Company, doing business as Unitec Elevator Company" for the name Alliance ElevatorCompany in the caption of the main, third-party, and second third-party actions, which had beendenied in a prior order dated August 1, 2007, (5) the defendant/second third-party defendantLandmark Elevator Consultants, Inc., appeals, as limited by its brief, from so much of the sameorder as denied its cross motion for summary judgment dismissing the complaint, secondthird-party complaint, and all cross claims insofar as asserted against it, and (6) the secondthird-party defendant Sodexho appeals, as limited by its brief, from so much of the same order asdenied its cross motion for summary judgment dismissing the second third-party complaint andall cross claims insofar as asserted against it.
Ordered that the appeal by the defendant Alliance Elevator Company, doing business asUnitec Elevator Company, and the third-party plaintiff/second third-party defendant, AllianceElevator Company, from so much of the order as denied those branches of their cross motionwhich were for leave to renew that branch of their motion which was for leave to amend thecaption in the main action by deleting Unitec Elevator Services from the caption of the mainaction and substituting the name "Alliance Elevator Company, doing business as Unitec ElevatorCompany" for the name Alliance Elevator Company in the caption of the main action, and todismiss the complaint insofar as asserted against Unitec Elevator Company is dismissed asacademic, as the plaintiffs Karl Bauerlein and Donna Bauerlein have resolved those branches ofthe motion pursuant to a so-ordered stipulation of settlement dated June 18, 2009; and it isfurther,
Ordered that the order is modified, on the law and the facts, (1) by deleting the provisionthereof denying that branch of the motion of the defendant/second third-party plaintiff, InclinatorCompany of America, Inc., which was for summary judgment dismissing the causes of action ofthe complaint alleging strict products liability based on defective design and manufacture,negligence, and breach of warranty insofar as asserted against it, and substituting therefor aprovision granting that branch of the motion, (2) by deleting the provision thereof denying thatbranch of the cross motion of the defendant Alliance Elevator Company, doing business asUnitec Elevator [*3]Company, and the third-partyplaintiff/second third-party defendant Alliance Elevator Company which was to dismiss thesecond third-party complaint insofar as asserted against the second third-party defendants UnitedTechnologies Corporation of New York City and United Technologies Corporation of New YorkCity and/or Unitec Elevator Services, and substituting therefor a provision granting that branchof the cross motion, (3) by deleting the provision thereof denying the cross motion of thedefendant/second third-party defendant, Landmark Elevator Consultants, Inc., for summaryjudgment dismissing the complaint, second third-party complaint, and all cross claims insofar asasserted against it, and substituting therefor a provision granting the cross motion, and (4) bydeleting the provision thereof denying the motion of the defendant Salvation Army forconditional summary judgment on its cross claim for common-law indemnification against thedefendant Alliance Elevator Company, doing business as United Elevator Company, and thethird-party plaintiff/second third-party defendant, Alliance Elevator Company, and substitutingtherefor a provision dismissing the motion; as so modified, the order is affirmed insofar asreviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant/second third-party defendant,Landmark Elevator Consultants, Inc., payable by the plaintiffs Karl Bauerlein and DonnaBauerlein, the defendant Salvation Army, the defendant Alliance Elevator Company, doingbusiness as Unitec Elevator Company, and the third-party plaintiff/second third-party defendant,Alliance Elevator Company.
The plaintiff Karl Bauerlein (hereinafter the plaintiff) allegedly was injured on April 24,2004, when a "personal residential elevator" called an "elevette" servicing only the 16th and 17thfloors of a building owned and operated by the defendant Salvation Army (hereafter TSA), wentup to the 17th floor, and then fell back to the 16th floor while he was inside. The plaintiff and hiswife, suing derivatively, and Eric Rex commenced this action to recover damages for personalinjuries. The plaintiff Eric Rex, who was also in the elevette when it fell, has settled anddiscontinued his claims.
"[A] manufacturer of a product may not be cast in damages, either on a strict productsliability or negligence cause of action, where, after the product leaves the possession and controlof the manufacturer, there is a subsequent modification which substantially alters the product andis the proximate cause of plaintiff's injuries" (Robinson v Reed-Prentice Div. of PackageMach. Co., 49 NY2d 471, 475 [1980]). The elevette manufacturer, the defendant/secondthird-party plaintiff, Inclinator Company of America, Inc. (hereafter ICOA), established, primafacie, that subsequent modifications to the elevette after its installation in 1977 substantiallyaltered the elevette, and that those alterations were a proximate cause of the plaintiff's injuries(see Zuckerman v City of New York, 49 NY2d 557 [1980]; Patino v LockformerCo., 303 AD2d 731 [2003]). Specifically, ICOA established that in May 2001 the elevette'scables were replaced by an employee working for the building's then elevator maintenancecontractor, the defendant Alliance Elevator Group, LLC, also known as AEG, LLC, and attachedto the elevette hitch plate with prohibited U-bolts, that eventually crushed and severed thecables, thereby causing the subject accident. In opposition to ICOA's prima facie showing, notriable issue of fact was raised. Further, it is undisputed that the breach of warranty cause ofaction asserted against ICOA was time-barred (see UCC 2-725; Ito v Marvin Lbr. & Cedar Co., 54AD3d 1001 [2008]). Accordingly, the Supreme Court should have granted that branch ofICOA's motion which was for summary judgment dismissing the causes of action alleging strictproducts liability based on defective design and manufacture, negligence, and breach ofwarranty, insofar as asserted against it.
ICOA also established, prima facie, that it owed no duty to warn elevator repair/servicetechnicians against attaching the elevette's cable to the car hitch plate with U-bolts by submittingproof of an industry standard prohibiting U-bolts used in this fashion (see Holloway vWillette Corp. of N.J., 280 AD2d 876 [2001]). In opposition, however, TSA raised a triableissue of fact, through its expert's affidavit and the deposition testimony of elevator repair/servicetechnicians, establishing that the subject prohibited U-bolt use, is far from universally knownamong elevator repair/service technicians. Accordingly, the Supreme Court properly denied thatbranch of ICOA's motion which was for summary judgment dismissing the complaint to theextent it alleged failure [*4]to warn, and all cross claims andcounterclaims insofar as asserted against it (see Zuckerman v City of New York, 49NY2d 557 [1980]).
The elevator maintenance company for the subject building, as of October 2001, thedefendant Alliance Elevator Company, doing business as Unitec Elevator Company, and thethird-party plaintiff/second third-party defendant, Alliance Elevator Company (hereinaftertogether Alliance), established that the second third-party defendants United TechnologiesCorporation of New York City and United Technologies Corporation of New York City and/orUnitec Elevator Services were non-jural entities, as they were either renamed "Alliance" or are a"d/b/a" (doing business as) of Alliance. Accordingly, the Supreme Court should have grantedthat branch of Alliance's cross motion which was to dismiss the second third-party complaintinsofar as asserted against the second third-party defendants United Technologies Corporation ofNew York City and United Technologies Corporation of New York City and/or Unitec ElevatorServices (see generally Sheldon v Kimberly-Clark Corp., 111 AD2d 912 [1985]).Contrary to Alliance's contention, it failed to offer a reasonable justification for its failure tosubmit the additional facts on the original motion for leave to amend the caption. Accordingly,that branch of its cross motion which was for leave to renew was properly denied by theSupreme Court (see Elder v Elder,21 AD3d 1055 [2005]; Matter ofLeyberman v Leyberman, 43 AD3d 925 [2007]; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437 [2007]; Stocklas v Auto Solutions of Glenville,Inc., 9 AD3d 622 [2004]).
The Supreme Court erred in denying the cross motion of the defendant/second third-partydefendant, Landmark Elevator Consultants, Inc. (hereafter Landmark), for summary judgmentdismissing the complaint, the second third-party complaint, and all cross claims insofar asasserted against it. Landmark performed a "Local Law 10" inspection of the elevette, on oneoccasion, on May 12, 2003, pursuant to a contract with Alliance (see Local Law No. 10[1981] of City of NY). Landmark demonstrated its prima facie entitlement to judgment as amatter of law by submitting evidence that it owed no duty of care to the plaintiffs (seeEspinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Altinma v East 72nd Garage Corp., 54 AD3d 978 [2008]). Inopposition to Landmark's prima facie showing, no triable issue of fact was raised (seeZuckerman v City of New York, 49 NY2d 557 [1980]) as to whether Landmark, in allegedlyfailing to exercise reasonable care in the performance of its duties, "launch[ed] a force orinstrument of harm" (Altinma v East 72nd Garage Corp., 54 AD3d at 980 [internalquotation marks omitted]). The Supreme Court's determination that, among other things, a triableissue of fact existed as to whether Landmark negligently failed to discover the U-bolts, amountsto a finding that Landmark may have merely failed to become "an instrument for good," which isinsufficient to impose a duty of care upon a party not in privity of contract with the injured party(id. [internal quotation marks omitted]).
In view of our determination regarding Landmark's cross motion, TSA's cross motion forconditional summary judgment on its cross claim for common-law indemnification againstLandmark, and the plaintiffs' cross motion for summary judgment on the complaint againstLandmark, were properly denied.
The Supreme Court should not have addressed the merits of TSA's motion for conditionalsummary judgment on its cross claim for common-law indemnification against Alliance andshould have dismissed that motion, as the motion was not properly served upon Alliance inaccordance with CPLR 2103 (b) or 2214 (b) (see Bianco v LiGreci, 298 AD2d 482[2002]).
The cross motion by the subject building's management company, the second third-partydefendant Sodexho, for summary judgment dismissing the second third-party complaint and allcross claims insofar as asserted against it, was properly denied. Sodexho "failed to establish [its]prima facie entitlement to judgment as a matter of law. The evidence offered in support of [its]. . . motion[ ] failed to establish, prima facie, that the [elevette] was not defective,or that [it] had no actual or constructive notice of a defective condition" (Kucevic v Three Park Ave. Bldg. Co.,L.P., 55 AD3d 792, 793 [2008]; see Dorsey v Les Sans Culottes, 43 AD3d 261 [2007]).
The plaintiffs made a prima facie showing of entitlement to judgment as a matter of [*5]law on their claim pursuant to Multiple Dwelling Law § 78insofar as asserted against TSA, premised upon TSA's nondelegable duty to maintain and repairthe elevette on its premises, even though it had contracted with an elevator company to handleall maintenance and repair work (see Multiple Dwelling Law § 78; Oxenfeldt v 22 N. Forest Ave. Corp.,30 AD3d 391 [2006]). In opposition, however, TSA demonstrated that triable issues of factexist as to whether it had constructive notice of the subject defect in the elevette (id.).Accordingly, the Supreme Court properly denied that branch of the plaintiffs' cross motionwhich was for summary judgment on its Multiple Dwelling Law § 78 claim against TSA(id.). Dillon, J.P., Santucci, Florio and Hall, JJ., concur.