The following papers numbered 1 to 501 were read on (Seq. No. 1) the motion by defendant Nouveau Elevator Industries, Inc. (Nouveau) for an order granting summary judgment dismissing the complaint against it; and the motion (Seq. No. 2) by defendant Adamah LLC (Adamah) for an order granting summary judgment dismissing the complaint and cross-claim against it: PAPERS NUMBERED (Seq. No. 1) Notice of Motion / Affirmation (Samurovich) / Memorandum of Law / Exhibits A-E 1-8 Affirmation in Opposition (Cortelli) / Memorandum of Law / Response to Statement of Material Facts / Exhibits A-F Reply Memorandum 9-17 18 (Seq. No. 2) Notice of Motion / Affirmation (Kim) / Memorandum of Law /Statement of Material Facts / Exhibits A-R 19-40 Affirmation in Opposition (Cortelli) / Memorandum of Law / Response to Statement of Material Facts / Exhibits A-F 41-492 Reply Affirmation (Dolgow) 50 DECISION AND ORDER Upon the foregoing papers, Nouveau’s motion is denied, and Adamah’s motion is denied in part and granted in part. This action for personal injuries arises out of an accident that occurred on February 3, 2020 at premises owned by defendant Adamah and leased to plaintiff’s employer, non-party Yonkers Gardens, LLC (Gardens). On that date, plaintiff alleges that an elevator in which she was a passenger malfunctioned, causing the elevator to shake and descend beyond the intended floor to the basement and causing plaintiff to fall. By Notice of Motion filed on May 31, 2024, Nouveau seeks an order granting summary judgment dismissing the complaint against it. By Notice of Motion also filed on May 31, 2024, Adamah seeks an order granting summary judgment dismissing the complaint and Nouveau’s cross-claim against it. Plaintiff opposes both motions. Nouveau does not oppose the branch of Adamah’s motion seeking summary judgment dismissing its cross-claim for indemnification. The court’s function on these motions for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact…. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers…. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]). The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). As stated in Scott v. Long Island Power Auth. (294 AD2d 348, 348 [2d Dept. 2002]): “It is well established that on a motion for summary judgment the court is not to engage in the weighing of evidence. Rather, the court’s function is to determine whether ‘by no rational process could the trier of facts find for the nonmoving party’ (Jastrzebski v. North Shore School Dist., 223 AD2d 677, 678 [internal quotation marks omitted]). It is equally well established that the motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Dolitsky v. Bay Isle Oil Co., 111 AD2d 366).” Seq. No. 1: Nouveau Elevator Industries, Inc. Nouveau contends that it is entitled to summary judgment dismissing the complaint against it on the ground that it neither created nor had notice of the alleged defective condition. Nouveau contends that its role was limited to performing specified maintenance on the subject elevator pursuant to a contract with Gardens (Seq. No. 1, Exh. A), which specifies that Nouveau is not liable for losses arising from defects, malfunctions or dangerous conditions prior to its receipt of notice of such conditions, unless such a condition was created by Nouveau’s affirmative negligence. Nouveau submits that it performed the required periodic routine maintenance, including on January 10, 2020, less than one month prior to the subject accident, and that Nouveau received no prior complaints or reports of the sort of malfunction alleged to have caused plaintiff to fall. Nouveau thus contends that its motion should be granted. In opposition, plaintiff contends that Nouveau, having contracted to maintain the subject elevator, is liable to plaintiff for its failure to correct a dangerous condition or to exercise reasonable care to discover and correct such a condition. Plaintiff submits that Nouveau’s own records demonstrate that it failed to perform the required regular maintenance on the subject elevator from September 2019 through February 2020, and that the January 2020 service was in fact a repair, not regular maintenance. Plaintiff further contends that Nouveau’s records contain numerous instances of notice of problems with the elevator, including instances of the elevator being shut down by the fire department, after which Nouveau performed repairs, complaints of noise, numerous instances of oil leaks, and a service visit to replace a “broken normal slow down switch” (Exh. D to Opposition at 14).3 Plaintiff submitted the Affidavit of elevator consultant William Seymour (Exh. B to Opposition), who opines, inter alia, that the subject elevator’s documented history of oil loss is a common cause of introduction of air into the hydraulic system. Mr. Seymour further indicated that the passage of air pockets through the system removes the restriction on the elevator’s descent rate ordinarily imposed by the flow of oil through a control valve, which “will result in a sudden acceleration giving the feeling of the elevator dropping. It will also impact the smooth ride of the elevator causing audible noises throughout the system often described as ‘knocking’ or ‘banging’ resulting in a jerky motion as the elevator descends” (id. at 17). Plaintiff thus contends that the numerous prior complaints of noise and the numerous instances of oil leaks documented in Nouveau’s records require denial of the motion. In the alternative, plaintiff contends that this accident is of a type that would not ordinarily happen in the absence of negligence, making application of the doctrine of res ipsa loquitur appropriate. In reply, Nouveau asserts that the maintenance and repair records do not describe any prior malfunction similar to that alleged by plaintiff. Nouveau further asserts that the Court should disregard Mr. Seymour’s opinion because he does not possess a Qualified Elevator Inspector’s license, and he does not have any experience as an elevator mechanic, rendering him unqualified to offer an expert opinion.4 Nouveau further asserts that, even if the Court considers Mr. Seymour’s opinions, the opinions are speculative and conclusory and thus insufficient to raise a triable issue of fact. Finally, Nouveau asserts that the doctrine of res ipsa loquitur cannot apply in this matter, as there is no evidence that the subject elevator suddenly dropped at a high rate of speed. The Court has fully considered the submissions of the parties. Nouveau on its motion failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint against it. Nouveau’s submission of its preventative maintenance records (Seq. No. 1, Exh. D) reveals a gap in monthly maintenance from August 15, 2019 through January 10, 2020. The record of the January 10, 2020 visit does not indicate that monthly maintenance was in fact performed, rather indicating that the Nouveau employee found a large quantity of oil on the motor room floor and under the tank below the motor, and that the employee cleaned up the oil spill and added oil to the tank. In addition, the service call records (Seq. No. 1, Exh. E) reveal no fewer than four instances of Nouveau employees addressing oil leaks relating to the subject elevator between September 24, 2019 and the date of the accident. Although the service tickets lack detail, it appears that at least two of these visits were for the purpose of addressing complaints that the subject elevator was “making noise” (id. at 11, 13). “An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” (Carter v. Nouveau Indus., Inc., 187 AD3d 702, 703 [2d Dept 2020], quoting Fajardo v. Mainco El. & Elec. Corp., 143 AD3d 759, 762 [2d Dept 2016]). The maintenance and repair records annexed to Nouveau’s moving papers fail to eliminate triable issues of fact as to whether it failed to correct a condition of which it had knowledge or failed to use reasonable care to discover a condition which it ought to have found. No expert testimony is required to enable a lay person to understand that an unaddressed oil leak in a hydraulic system may cause the system to fail. As Nouveau failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint, the motion is denied without consideration of the sufficiency of plaintiff’s opposition (Alvarez, 68 NY2d at 324). In light of this determination, the Court need not and does not address plaintiff’s alternative arguments in opposition to the motion. Seq. No. 2: Adamah, LLC Adamah contends that it was an out-of-possession landlord with respect to the subject elevator with no contractual or statutory obligation to make repairs, and it did not enter the premises to make any such repairs, and thus that it cannot be held liable for the subject accident. Adamah further contends that it had neither actual nor constructive notice of the alleged condition, as there were no known prior incidents of the kind alleged by plaintiff, and reports of any such issues or requests for repairs or maintenance would not have been made to Adamah, as the elevator maintenance contract was between Gardens and Nouveau. Adamah asserts that summary judgment dismissing Nouveau’s cross-claim is appropriate because Nouveau alone maintained the subject elevator. In opposition, plaintiff contends that Adamah, as the property owner, had a nondelegable duty to maintain and repair the subject elevator, imposed both by common law and by the Multiple Residence Law. Plaintiff further contends that the written lease agreement between Adamah and Gardens did not include the subject elevator. Plaintiff additionally asserts that Adamah may be held liable under a theory of a single integrated enterprise, insofar as Adamah, Gardens, and the property manager, nonparty M2 Management, all were owned and controlled by the same individual, Michael Melnicke. Plaintiff thus concludes that Adamah was not an out of possession landlord. As to Adamah’s claim that it lacked actual or constructive notice of the alleged defective condition of the subject elevator, plaintiff contends that Adamah failed to submit evidence sufficient to eliminate triable issues of fact as to whether a regular inspection schedule calculated to discover such defects was in place, that there was no indication of such a defect at the last inspection, and that there were no prior complaints related to the defect. Plaintiff points to deposition testimony given by the director of maintenance at the premises that he remembered complaints about the elevators shaking and making noise and recalled that the elevators were shut down a couple of times. Plaintiff thus concludes that Adamah’s motion should be denied. In reply, Adamah asserts that the Multiple Residence Law does not apply to the subject premises, and thus that it, as an out of possession landlord, cannot be held liable for the subject accident. Adamah reiterates its contention that it had no notice of the alleged defect in the subject elevator. Finally, Adamah asserts that plaintiff’s single integrated enterprise theory fails, as it relies solely on shared personnel between Adamah, M2 and Gardens, and fails to cite any example of the roles of the different entities being conflated. Adamah thus concludes that its motion should be granted. Adamah made a prima facie showing of its entitlement to judgment as a matter of law on its cross-claim against Nouveau for indemnification by submission of the Maintenance Service Contract pursuant to which Nouveau agreed to maintain the subject elevator. Nothing in the agreement can be construed to require Adamah or any other entity to indemnify Nouveau under the circumstances presented in this matter. The agreement does include a provision under which Nouveau specifically agreed to indemnify the owner for any damages caused by Nouveau’s negligent acts or omissions (Seq. No. 2, Exh. B at 16). In the absence of opposition, the branch of the motion seeking summary judgment dismissing Nouveau’s cross-claim is granted. Adamah failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing plaintiff’s complaint against it. Adamah’s unsupported assertion that the Multiple Residence Law does not apply to the subject premises, and thus that it is not liable as an out of possession landlord, is contrary to the plain terms of the statute. The categories of dwellings to which the law applies include “old age or nursing homes or residences” located in cities of less than 325,000 or any town or village (Multiple Residence Law §§3[1], 4[33]; cf. Multiple Dwelling Law §§3[1], 7-9 [applying to cities of more than 325,000 but omitting nursing homes from covered categories of dwellings]). The owner of such a dwelling is required to keep every part of the premises in good repair (id. §174). In any event, even if Adamah’s assertion were correct, the terms of the applicable lease appear to separate the elevators from the “Demised Premises” such that Adamah did not surrender possession of the subject elevator to Gardens (Seq. No. 2, Exh. M at Art. 8[2][a] [requiring Tenant to maintain liability insurance "against claims for bodily injury…occurring upon, in or about the Demised Premises or the elevators…."] [emphasis added]).5 Adamah likewise failed to make a prima facie showing that it lacked notice of the alleged defective condition of the subject elevator. Adamah submitted the Affidavit of James Filippone, a Licensed Professional Engineer and Qualified Elevator Inspector. The Affidavit consists of Mr. Filippone’s unsupported and speculative opinion that the subject elevator did not descend in the manner described by plaintiff and that if it had, it would have descended beyond the point at which plaintiff indicated it stopped, and that such a continued descent would have resulted in extensive damage to the elevator car. Mr. Filippone further asserts that the maintenance records he reviewed indicate a leaking piston seal and scavenger pumps, which is not an uncommon occurrence, and that the issue was fixed in September-October 2019, prior to plaintiff’s accident. Finally, Mr. Filippone asserts that there are no records indicating anyone else was stuck in an elevator in the year prior to plaintiff’s accident, and that Gardens employees testified that there were no such occurrences. As an initial matter, the Court notes that none of the service records upon which Mr. Filippone’s assertions rely were annexed to Adamah’s moving papers. Insofar as it appears that Mr. Filippone references the same records annexed to Nouveau’s moving papers and plaintiff’s opposition to both motions, the Court notes that the records do not indicate that the oil leak was fixed, instead indicating only that oil was added to the tank on September 24 and 27, 2019, and that on September 26, 2019, a Nouveau employee investigated and cleaned up the leak and “measured for new guide shoes” (Seq. No. 2 Opp. Exh. D at 11-13). The service tickets referenced by Mr. Filippone dated October 8 and 9, 2019 (id. at 29-33) reference repairs to elevator car #1, while it is undisputed that plaintiff’s accident occurred in elevator car #2. In any event, Mr. Filippone’s assertion that the issue was fixed in or about October 2019 is belied by the record of the January 10, 2020 service visit, approximately three months later, which indicates that the Nouveau employee found a large quantity of oil on the motor room floor and under the tank below the motor, and that the employee cleaned up the oil spill and added oil to the tank (id. at 24). Furthermore, Mr. Filippone’s assertion that Gardens employees recalled no incidents of passengers being stuck in an elevator prior to plaintiff’s accident is of no moment, as plaintiff alleges she was injured as a result of the subject elevator’s rapid and uneven descent, not as a result of being stuck therein. In any event, Fadil Gashi, who was the director of maintenance for Gardens at the time of the subject accident, testified that he recalled a couple of complaints about the elevators shaking while going up and down, that the elevators shut down, and that 911 calls were placed due to the elevators shutting down (Seq. No. 2, Exh. P at 13). In light of the absence of any records or testimony to support Mr. Filippone’s assertions that the oil leak in the subject elevator was fixed and that there were no prior incidents with the subject elevator, his Affidavit is insufficient to eliminate triable issues of fact as to whether Adamah had notice of the alleged defective condition (see Zimmer v. Maxwell, 219 AD3d 1565, 1566 [2d Dept. 2023] ["An expert opinion based upon speculation is of no probative value."]). Furthermore, in light of the gap in records of routine maintenance from August 15, 2019 through the date of the subject accident, February 3, 2020, and the several repair records indicating a recurring oil leak during that period, Adamah failed to submit evidence sufficient to eliminate triable issues of fact as to whether the subject elevator was regularly inspected and maintained and whether Adamah received any prior complaints about the elevator related to the condition alleged to have caused the subject accident (cf. Lopez v. Retail Prop. Trust, 118 AD3d 676 [2d Dept 2014] [defendant made prima facie showing that subject escalator was functioning properly before and after incident and that they had no notice of any defect]; Parris v. Port of N.Y. Auth., 47 AD3d 460, 461 [2d Dept 2008] [defendant made prima facie showing that contractor performed regular "preventative maintenance, and no problems were indicted in the service maintenance records it kept"]). As Adamah failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint, the motion is denied without consideration of the sufficiency of plaintiff’s opposition (Alvarez, 68 NY2d at 324). In light of this determination, the Court need not and does not address plaintiff’s alternative arguments in opposition to the motion. Accordingly, it is hereby ORDERED that the motion by defendant Nouveau Elevator Industries, Inc. (Seq. No. 1) is denied; and it is further ORDERED that the branch of the motion by defendant Adamah LLC (Seq. No. 2) seeking an order granting summary judgment dismissing the cross-claim asserted by Nouveau Elevator Industries, Inc. is granted, and the Clerk shall enter judgment dismissing the cross-claim; and it is further ORDERED that the branch of the motion by defendant Adamah LLC (Seq. No. 2) seeking an order granting summary judgment dismissing the complaint against it is denied; and it is further ORDERED that, within ten (10) days of the date hereof, plaintiff shall serve a copy of this Decision and Order, with notice of entry, upon defendants, and shall file proof of said service via NYSCEF; and it is further ORDERED that the parties shall appear for settlement conference on January 8, 2025 at 10:00 a.m. in Courtroom 800. The foregoing constitutes the Decision and Order of the Court. Dated: November 18, 2024
