| Pueng Fung v 20 W. 37th St. Owners, LLC |
| 2010 NY Slip Op 05473 [74 AD3d 635] |
| June 22, 2010 |
| Appellate Division, First Department |
| Pueng Fung, Respondent, v 20 West 37th Street Owners,LLC, et al., Defendants, Centennial Elevator Industries, Inc., Respondent, and Winoker RealtyCompany, Inc., Appellant. (And Other Actions.) |
—[*1] Law Offices of Michael J. Asta, New York (Eliot S. Bickoff of counsel), for Pueng Fung,respondent. Litchfield Cavo LLP, New York (Joseph E. Boury for counsel), for Centennial ElevatorIndustries, Inc., respondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered November 13, 2009,which, insofar as appealed from, denied defendant Winoker Realty Company, Inc.'s motion forsummary judgment dismissing plaintiff's complaint, unanimously reversed, on the law, withoutcosts, the motion granted, and the complaint dismissed as against Winoker. The Clerk is directedto enter judgment accordingly.
Since Winoker's first motion for summary judgment was directed to co-defendant 20 West37th Street Owners, LLC, the owner of the building, for defense and indemnification, its secondmotion for summary judgment was the first one directed to plaintiff's complaint, and, as such,was not an impermissible multiple motion (see Olszewski v Park Terrace Gardens, Inc., 18 AD3d 349 [2005];Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:21, at30).
Addressing the merits, plaintiff alleges that on February 24, 2003, after he used the key toopen one of the service elevators in the building where he worked, he stepped into the elevatorshaft and fell 15 feet, landing in the elevator pit. He alleges that the safety lock, known as the"parking device," which keeps the doors closed when the elevator car is not at the floor, failed tofunction, causing his injuries.
Assuming defendant Winoker, the managing agent, had exclusive custody and control of[*2]the subject premises, a showing that defendant had notice ofthe alleged malfunction would still be necessary (see Levine v City of New York, 67 AD3d 510 [2009]). Winokermet its burden of showing that it neither created nor had actual or constructive notice of thealleged defect in the door's parking device, and plaintiff failed to raise an issue of fact inopposition (see Narvaez v New YorkCity Hous. Auth., 62 AD3d 419 [2009], lv denied 13 NY3d 703 [2009]; Gjonaj v Otis El. Co., 38 AD3d384 [2007]).
Contractual indemnification against Centennial is not warranted, because the contract doesnot provide for indemnity. Moreover, since no finding of negligence against Centennial has yetbeen made (cf. Haynes v Estate ofGoldman, 62 AD3d 519, 521 [2009]), Winoker is also not entitled to summaryjudgment on its claim for common-law indemnification against Centennial, as such a findingwould be premature at this time (seee.g. Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364, 366 [2006], lvdismissed 7 NY3d 864 [2006]). Concur—Gonzalez, P.J., Andrias, Catterson, Renwickand Manzanet-Daniels, JJ.