The following papers numbered 1 through 27 were read on the motion of ELEVATOR REFURBISHING CORP. (“Elevator”) [Seq. 2] and PROSPECT REALTY CO. (“Prospect”) [Seq. 3], each made pursuant to CPLR3212, for an order granting summary judgment and dismissal of the complaint, as against FENTON SENIOR (“plaintiff”):PAPERS NUMBERED[Seq. 2] Notice of Motion, Affirmation, Exhibits A-H, 1-10Affirmation in Opposition, Exhibits A-B1 11-13Affirmation in Reply 14[Seq. 3] Notice of Motion, Affirmation, Exhibits A-I 15-24Affirmation in Reply and in Opposition, Exhibit A 25-26Affirmation in Reply 27DECISION/ORDER Upon the foregoing papers, the court determines as follows: According to his deposition, plaintiff, at the time of the occurrence in dispute, then age 55, was a resident of 240 Prospect Avenue East, Mount Vernon, New York. On February 26, 2014, at about 11:55 p.m., plaintiff, upon returning home after work, entered into the lone elevator located at the premises in order to ascend from the first floor lobby to the second floor where his apartment is located. No one else was present at the time. The elevator began its ascent, then suddenly stopped between floors. He became frightened and terrified, and began “fidgeting with the buttons”, pressing different buttons.The elevator then began its descent faster than usual, again suddenly stopped, and shook. Plaintiff states the elevator door opened and he saw that he was 3 to 4 feet above the floor of the lobby. He wanted to get out as quickly as possible and so he “tried to jump out to get out”. He did not remember whether he pressed the emergency button before attempting to exit the elevator and does not recall if there was an emergency number posted therein. As he was exiting the elevator, he put his right foot over the elevator, stumbled and hit his head on a stone divider located several feet from the hoistway elevator door which he alleges caused him to sustain injuries. All that he described took place within a matter of seconds. He ascribes his actions to his fright and being terrified, such that he did not have the presence of mind to call 911, or the assistant superintendent, whose phone number was saved in his cell phone which was on his person.In support of its motion, Elevator, the company under contract with Prospect, the owner of the apartment building to service the elevator, alluded to plaintiff’s further deposition testimony that he had complained about the elevator not running on two unspecified occasions; he had never heard of an incident where the elevator stopped between floors or being mis-leveled; he sustained no injury, nor felt pain, while within the elevator; he was fidgeting with the buttons and was not sure what he pressed; he did not know whether there was an emergency button; he did not smell smoke or see flames; he did not hear noise when the elevator first stopped; the second stop did not cause him to fall; when it stopped the second time it remained stationary; there was a red button but he did not recall whether he pushed it; he did not fall out of the elevator; and after his feet were on the lobby floor he stumbled, causing his head to come in contact with the stone divider, identified by photograph.The deposition of Daniel Laura was taken. At the time of the occurrence he was an employee of Elevator for 27 years as a repair person who was familiar with the elevator in issue, which was described as an overhead traction device with hoist cables, a Single Speed AC. The cab of the elevator “sees” a switch located on the hoistway when the cab approaches a floor to be exited, when a controller is to apply the brake and cut power to the motor. There is an alarm button that sounds when pressed. The elevator can be stopped if the stop switch is pulled or if someone bangs around inside, triggering the safety switch on the governor. If stuck between floors, the elevator door remains closed unless it gets a signal to open electronically or someone uss force to open it.The elevator has a clutch on the cab door, twelve inches in length. The clutch is to engage the outside release assembly on the outer, hoistway door when the elevator is within 6 inches above or below the floor. Beyond this one foot zone, the clutch cannot engage the hoistway door which will remain closed unless someone reaches into the mechanism in an effort to open the hoistway door. The doors to the cab are electronically controlled. As to the two stops described by plaintiff, Laura testified that if the cab door accidentally clipped the hoistway door release assembly it could break the contact in the door lock causing the elevator to stop, at which time the contact would be revived, and the elevator would continue its ascent to the designated floor, but this could only occur if within the 12 inch zone.In support of its motion, Prospect referenced the deposition testimony of plaintiff, Laura, and of Christopher DeFeo, who is employed by it as a property manager to the apartment building in issue. If a complaint is received relative to the elevator, he notifies Elevator, with whom there is a maintenance contract, to handle the repair. The building’s employees do not make repairs to the elevator. The stone divider that plaintiff struck is located 6 feet from the elevator door.The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case. Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]. Put another way, in order to obtain summary judgment, there must be no triable issue of fact presented…even the color of a triable issue of fact forecloses the remedy. In re Cuttitto Family Trust, 10 AD3d 656 [2d Dept 2004], quoting LNL Constr. v. MTF Indus., 190 AD2d 714, 715 [2d Dept 1993]. If a party makes a prima facie showing of its entitlement to summary judgment, the opposing party bears the burden of establishing the existence of a triable issue of fact. Zuckerman, v. City of New York, supra; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]. On a motion for summary judgment, the court’s function is to determine if a factual issue exists, and the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine, and [a]n conflict in the testimony or evidence presented merely raise(s) an issue of fact. [internal citations omitted]. Brown v. Kass, 91 AD3d 894 [2d Dept 2012].In support of their motions to dismiss, defendants argue that the elevator stop was not the proximate cause of plaintiff’s injury, in that the actions he took, and the stumble that caused his head to hit the stone divider, were of his own doing. Specifically, they argue that there was no emergency that justified plaintiff exiting the elevator in the manner he described, and that it could not be anticipated, in terms of the measuring of their duty, that it was foreseeable that the stop of the elevator, his quick exit therefrom, and his stumble after landing on the lobby floor can be attributed to them, such that liability for his injury may attach.The seminal case cited by all parties is Egan v. A.J. Constr. Corp., 94 NY2d 839 [1999]. There plaintiff, a carpenter at a construction site, was riding with 25 to 30 co-workers in a freight elevator that came to a smooth stop and stalled 6 feet above the first floor. The elevator remained lit and did not move or make noise. Assistance was called for by telephone. After 10 to 15 minutes two workers manually opened the elevator doors and jumped to the lobby floor. When plaintiff jumped he landed on his heel, felt shock in his spine and sustained physical injuries. The Court rejected his Labor Law claims and affirmed the granting of summary judgment dismissal, finding that on these facts, as a matter of law, plaintiff’s action, as an experienced worker, of jumping out a stalled elevator from a six foot height, when he was not threatened with injury while in the stalled elevator, which had come to a smooth, motionless, quiet, lit stop, was not a foreseeable event for which defendants can be found negligent. “His jump superseded defendants’ conduct and terminated defendants’ liability for his injuries (internal citation omitted).” Id. at 841.Notably, in making its ruling, the Court distinguished the facts in Egan from the facts in Humbach v. Goldstein, 255 AD2d 420 [2d Dept 1998]. There, plaintiff sustained injury when he tried to escape from a stalled elevator in an apartment building where he was attending a party, at or about midnight, with other guests. The elevator stopped between floors and almost immediately began to descend to the lobby. The occupants pushed the buttons and the alarm button, pounded on the walls and screamed for help but no one responded. Plaintiff, after an undetermined time, pried open the elevator door and tried to lower himself to the floor that was 5 feet below. He lost his grip and fell to the bottom of the elevator shaft sustaining injury. Defendants were the landlord and elevator maintenance company of the apartment building.The Court rejected the argument that plaintiff’s conduct was a superseding intervening act which broke the causal connection between defendants’ alleged negligence and his injuries. “It is well established that an intervening act constitutes a superseding cause and relieves the defendant of liability when ‘the act is of such extraordinary nature or so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant’ (internal citations omitted).” Id. at 421. The Court, affirming the trial court, found that there were issues of fact that precluded the granting of summary judgment. See also, Soomaroo v. Mainco El. & Elec. Corp, 41 AD3d 465 [2d Dept 2007], where the Court, citing Humbach supra, affirmed the denial of summary judgment to defendant, finding that “under the circumstances of this case, the defendant failed to make a prima facie showing that the plaintiff’s actions were unforeseeable or of such a character as to sever the causal connection between the defendant’s alleged negligence and the plaintiff’s injury (internal citations omitted).”A further enunciation of this rule, albeit not in an elevator related action, may be found in Mazzio v. Highland Homeowners Association and Condos, 63 AD3d 1015 [2d Dept 2009]. There, as alleged by plaintiff, her injury was sustained when attempting to help a physically disabled friend stand up from the ground after he allegedly slipped due to the presence of ice. As plaintiff was assisting her friend to get up, he slipped on the ice again, and fell on top of plaintiff. On these facts, the trial court had granted summary judgment dismissal to defendant property owner. The Appellate Division reversed on two grounds, finding there was proof in the record to infer negligent maintenance of the premises, and that the alleged negligence was the proximate cause of the accident. “Since ‘the determination of legal causation turns upon questions of foreseeability and what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the finder of fact to resolve’ (internal citations omitted).” Id. at 1016.The court finds that plaintiff’s conduct when alone for a matter of seconds in a stalled elevator that had stopped twice, and that upon its descent before the second stop, was moving faster than usual, does not justify the granting of summary judgment to defendants. The entire incident took place in a matter of seconds, he was frightened, he could not, as a matter of law (cf. Egan, supra), have known whether he was in danger or not, he pushed all the buttons, he exited when he thought he could do so, and he was injured as a direct result of his exit. The issue is whether he acted as a reasonable person under these circumstances, as developed on this record, and if so, was his injury proximately caused, without a break in causation, due to the alleged negligence of defendants. That is for the trier of fact to determine and not this court on the motions.In passing the court declines to rule on plaintiff’s argument that res ipsa loquitor should apply here. There are too many variables yet to be developed such that it can be said that the incident in issue could not have occurred but for defendants’ negligence. There is insufficient proof to preclude a finding that there was no voluntary action or contribution on the part of plaintiff that led to his injury, which is one of the three prongs of the test that must be proved before res ipsa loquitor may apply. See Dermatossian v. New York City Transit Authority, 67 NY2d 219, 226 [1986]. Again, it is for the judge and jury presiding at the trial to make this call upon the full record.The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is herebyORDERED that the motion of defendant ELEVATOR REFURBISHING CORP. (“Elevator”) and defendant PROSPECT REALTY CO., each made pursuant to CPLR 3212, for an order granting summary judgment dismissal of the complaint, as against plaintiff FENTON SENIOR, is denied; and it is furtherORDERED that the parties shall appear at the Settlement Conference Part of the Court, Room 1600, on May 29, 2018 at 9:15 a.m.The foregoing constitutes the Decision/Order of the court.Dated: White Plains, New YorkMay 8, 2018
