The following e-filed documents, listed by NYSCEF document number (Motion 009) 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 323, 358, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 384, 385, 386, 387, 388, 389 were read on this motion to/for JUDGMENT — SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 010) 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 359, 383 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION In this action to recover damages for a personal injury due to an alleged elevator malfunction at 10 West 18th Street, New York, New York 10011 (the building) on March 27, 2012, defendant Nouveau Elevator Industries, Inc. (Nouveau), the building’s elevator maintenance company, moves for summary judgment pursuant to CPLR §3212 dismissing plaintiff Desmond Walsh’s amended complaint and all cross-claims against it (mot seq no 009). Nouveau argues that: (1) there is no evidence that Nouveau had actual or constructive notice of the alleged specific defect of misleveling; (2) plaintiff cannot establish a necessary element of his cause of action since the testimony of a witness contradicts that plaintiff fell due to the elevator; (3) Nouveau did not owe a duty of care to plaintiff because it did not own, occupy, control or make special use of the elevator nor did plaintiff plead the necessary exceptions to third-party tort liability to a contract; (4) all common-law and contribution claims against Nouveau must be dismissed since it was not negligent; and (5) all contractual indemnification claims against Nouveau must be dismissed because it did not agree to indemnify any party. Defendant West Gramercy Associates LLC (West Gramercy), the building’s owner, also moves for summary judgment pursuant to CPLR §3212 dismissing plaintiff’s complaint (mot seq no 010). West Gramercy argues that: (1) plaintiff’s version of the incident is not credible as a matter of law due to contradicting testimony of a witness; (2) West Gramercy was not negligent in performing its duties to maintain the elevator nor did it have actual or constructive notice of the specific defect of misleveling; (3) res ipsa loquitor does not apply; and (4) plaintiff’s allegations of Administrative Code and statutory violations are inapplicable or were not violated. Plaintiff cross-moves for spoliation sanctions on motion sequence number 009, arguing that defendants should be precluded from contesting the issue of notice because they failed to locate a maintenance logbook. Plaintiff opposes defendants’ motions arguing that: (1) defendants failed to meet their burden for summary judgment because they failed to produce sufficient evidence of maintenance records; (2) defendants’ failure to properly maintain the elevator caused it to mislevel; (3) plaintiff’s testimony is not incredible as a matter of law; (4) Nouveau did in fact owe plaintiff a duty of care as the elevator’s maintenance company; and (5) res ipsa loquitor applies. Defendant Nouveau opposes plaintiff’s cross-motion arguing that: (1) plaintiff’s request for spoliation sanctions is meritless considering all of the maintenance records defendants produced; (2) plaintiff’s opposition that defendants did not properly maintain the elevator is entirely speculative; and (3) plaintiff failed to demonstrate third-party tort liability under a contract since there is no written comprehensive service maintenance contract. Defendant West Gramercy adds that all code violations regarding the elevator were resolved prior to the incident and nevertheless, do not constitute negligence. The motions are consolidated for disposition. BACKGROUND Plaintiff, a U.S. postal worker, alleges he was injured on March 27, 2012 at the building by tripping on a misleveled rear elevator (Peplinski Affirm, 14, NYSCEF Doc No 309). Plaintiff testified that on the date of the incident he was conducting a route inspection in his capacity as a manager for the U.S. Postal Service by following around mail carrier Shelyne White for the day (Walsh EBT, pp 173-74, NYSCEF Doc No 313). At the building, plaintiff followed White to the freight elevator, and as he entered ahead of White, he stubbed the toe of his left foot (id. at pp 16-17). This caused plaintiff to fall forward into the elevator wall and use his left hand to break the fall, though his left shoulder hit the wall (id. at pp 17-18). Upon turning, his left knee struck the floor (id.). As he turned with his back now against the elevator car wall, plaintiff looked down and claims to have seen the elevator car floor above the lobby floor by approximately five to six inches (id. at 18-19). White then entered the elevator without incident (id. at p 19). After finishing their mail delivery at the building, plaintiff and White went to 30 West 18th Street where plaintiff waited for Tour Superintendent of Operations Allen to arrive so that she could investigate the incident and prepare a report (id. at pp 22-25). White testified that she entered the elevator prior to plaintiff and without observing any misleveling between the lobby floor and elevator car (White EBT, pp 80-84, NYSCEF Doc No 319). White believes that plaintiff fell in the lobby since she saw that only his shoulder and head were inside the elevator while his body from chest down remained in the lobby (id. at p 22). She had not experienced any misleveling nor heard any complaints regarding misleveing of the elevator prior or subsequent to the incident (id. at pp 30-31). Gabriel Dagan, Director of Commercial Operations for Josephson, LLC d/b/a The Moinian Group (The Moinian Group), the building’s asset and property management company, and Susan Sahim of S&S Equities of NY & NJ Inc (S&S), the building’s property management company, both appeared for depositions testifying that they did not personally experience nor recall receiving any complaints regarding misleveling prior to plaintiffs incident (Dagan EBT, pp 105-08, 126, NYSCEF Doc No 314; Sahim EBT, pp 47-49, 60, 124, 142, 151-58, NYSCEF Doc No 316). Harry Dreizen, General Counsel to The Moinian Group and West Gramercy appeared for deposition on April 15, 2021; however, he was not asked whether he had prior notice of misleveling (Dreizen EBT, NYSCEF Doc No 255). Joseph Kusnir testified on behalf of All star Elevator & Escalator Inspection Agency, Inc. (Allstar), the company hired to witness annual elevator inspections performed by the elevator maintenance company, on April 5, 2021 (Kusnir EBT, NYSCEF Doc No 318). After reviewing a copy of the October 17, 2011 Inspection Report that he signed, Kusnir explained that misleveling issues would be examined at these inspections and if found, denoted with a “100″ (id. at pp 51-57). No such designation appears in the 2011 inspection report (CAT1 Inspection 10/17/11, NYSCEF Doc No 370). If the misleveling was noticeable, Kusnir would ask for a ruler (NYSCEF Doc No 318, pp 64-65). Kusnir did not request a ruler at the 2011 inspection (id.). Don Cristiano, General Manager of Nouveau’s service department, testified on behalf of defendant Nouveau on April 13, 2021 (Cristiano EBT, NYSCEF Doc No 347). He was shown copies of Nouveau’s work tickets for the elevator, which do not specifically mention any issues of misleveling (id. at p 79; see also Work Tickets, NYSCEF Doc No 374). Non-party witness, Michael Hamilton, a former Nouveau elevator mechanic who inspected the elevator, testified on April 21, 2022 that monthly maintenance included riding the elevator to ensure there was not any misleveling, listening for noises, checking the machine room, and observing the functionality of the elevator (Hamilton EBT, NYSCEF Doc No 320, pp 30, 71). Inspections also involved making sure the fan on the drive was blowing, oil was collected, and the brakes, hoist cables, and ropes were in good condition (id. at pp 66-68). Hamilton testified that if there was any misleveling, which he did not witness nor receive complaints about, he would have fixed it and indicated such on the work tickets (id. at pp 72-76). Defendants submitted an affidavit from Shawn Johnson, a certified elevator inspector and mechanic (Johnson Affirm, NYSCEF Doc No 356). Johnson states that a New York City Department of Buildings’ (DOB) elevator inspection on December 8, 2010 only showed that the elevator was not level on the second floor and Nouveau’s work ticket for December 16, 2010 shows that a floor height adjustment was needed and corrected, and that this correction was verified by DOB on July 5, 2011 (id. at 8). Johnson also reviewed all of the previous DOB violations pertaining to the elevator, which he states were all marked as either resolved or dismissed (id. at 15). Plaintiff submitted an affidavit from Richard A. Kennedy, a certified elevator inspector and technician (Kennedy Affirm, NYSCEF Doc No 377). Kennedy opines that “excessive dirt on the IP 8300 Plus sensors can cause the elevator to go off level on a particular floor” and “failure to properly clean the elevator car top and elevator pit can cause the oil to get dirty, which would interfere with the IP8300′s sensor to detect when the elevator car should stop” (id. at
