The opinion
Ellerbee v 61 W. 62 Owners Corp.
2024 NY Slip Op 31731(U)
May 20, 2024
Supreme Court, New York County
Docket Number: Index No. 150003/2013
Judge: Debra A. James
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 150003/2013
NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 05/20/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DEBRA A. JAMES PART 59
Justice
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LISA ELLERBEE,
MOTION DATE 10/12/2022
Plaintiff,
MOTION SEQ. NO. 002 003
- V -
61 WEST 62 OWNERS CORP., COOPER SQUARE
REALTY, INC., CENTENNIAL ELEVATOR INDUSTRIES DECISION + ORDER ON
INC., and JOHN A. VAN DUESEN & ASSOCIATES, INC., MOTION
Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 57, 58, 59, 60, 61,
62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 84, 85, 88, 90, 91, 92, 93, 94, 95, 96,103,104,105
were read on this motion to/for JUDGMENT-SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 003) 72, 73, 74, 75, 76,
77, 78, 79, 80, 81, 82, 83, 86, 89, 97, 98, 99,100,101,102,106
were read on this motion to/for JUDGMENT-SUMMARY
ORDER
Upon the foregoing documents, it is
ORDERED that the motion of the defendants 61 West 62 Owners
Corp, Cooper Square Realty, Inc, and Centennial Elevator
Industries, Inc., for summary judgment dismissing the complaint
and cross-claims against them, is denied (motion sequence number
001); and it is further
ORDERED that to the extent that it seeks summary judgment
dismissing the cross claim for contractual indemnification of
defendant Centennial Elevator Industries, Inc. against defendant
John A. Van Duesen Associates Inc., the motion of the defendant
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NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 05/20/2024
John A. Van Duesen & Associates, Inc. for summary judgment
(motion sequence number 002), is granted, and such cross claim
is dismissed; and it is further
ORDERED that to the extent that it seeks summary judgment
dismissing the cross claim for common law indemnification of
defendant Centennial Elevator Industries, Inc. against defendant
John A. Van Duesen Associates Inc., the motion for summary
judgment of defendant John A. Van Duesen Associates Inc. (motion
sequence number 002), is granted, and such cross claim is
dismissed; and it is further; and it is further
ORDERED that to the extent that it seeks summary judgment
in its favor dismissing the complaint and dismissing the cross
claim for contribution of defendant Centennial Elevator
Industries, Inc., the motion for summary judgment of defendant
John A. Van Duesen Associates Inc. (motion sequence number 002),
is denied; and it is further
ORDERED that, as per the Note of Issue filed on August 12,
2021 (NYSCEF Document Number 56), counsel are directed to confer
with the Clerk of the Trial Assignment Part 40 (TAP 40) for
assignment of a date for mediation and/or trial.
DECISION
In this action, plaintiff Lisa Ellerbee seeks damages against
defendants for personally injury. She complains that, on June 25,
2012, she suffered injury to her finger, when her hand was struck
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NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 05/20/2024
by the door of a passenger elevator, as she was entering such
elevator of the building owned by defendant 61 West 62 Owners Corp.
and owned by defendant 61 West 62 Owners Corp, where she resides.
Defendant Cooper Square Realty, Inc. ("Cooper Square') is the
managing agent of the building retained by 61 West 62 Owners Corp.,
which contracted with defendant Centennial Elevator Industries,
Inc. to service and repair the elevator. Defendant John A. Van
Duesen & Associates, Inc ("Van Duesen") was also retained by
defendant Cooper Square to manage, supervise and observe the
inspections performed on the elevator.
Defendants 61 West 62 Owners Corp, Cooper Square Realty, Inc.,
and Centennial Elevator Industries, Inc. and defendant Van Duesen
each move for summary judgment.
All defendants submit evidence in the form of a video of the
accident, the examination before trial of plaintiff, depositions
testimony of representatives of each of the defendants, the
accident report, and the expert report of a professional engineer,
which they contend prima facie establish that plaintiff is solely
responsible for her injuries, having created the dangerous
condition by attempting to enter the elevator when the doors were
already closing. In particular, they contend that the video of
the actual accident shows that plaintiff used her hand to attempt
to stop an already closing elevator door, as she rushed to enter
such elevator. In addition, defendants assert that the evidence
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demonstrate that they had neither actual nor constructive notice
of the elevator's alleged dangerous condition.
Defendants have not proffered an affidavit from a
videographer or expert, or otherwise, witness with knowledge, that
is required to establish that the video is a true and accurate
representation of what was before the camera. See Zegarelli v
Hughes , 3 NY 3 d 64 , 69 (2 0 0 4 ) . Therefore, as the video of the
accident that defendants contend conclusively establishes that
plaintiff caused her injury has not been authenticated, it is not
"in admissible form", Kuti v Sera Security Services, 182 AD3d 401,
404 (1st Dept 2020). Thus, the court cannot consider such evidence
on defendants' motion for summary judgment relief.
In addition, the court does not find plaintiff's expert
affidavit to be "so lacking in factual or scientific foundation to
be utterly devoid of merit" and thus, such report is sufficient to
create a triable issue of fact. See Hyatt v Price Chopper
Operating Co., 90 AD3d 1218, 1220 (3d Dept 2011). The defendants'
expert contends that the competing report of plaintiff's expert
improperly bases its conclusion on misconstrued facts. Such
matters implicate issues of credibility that cannot be resolved by
summary judgment. Hyatt, ibid.
In addition, in his affidavit, plaintiff's expert references
a Quality Control Report ("QCR") dated April 19, 2012, issued about
two months and one week before plaintiff's accident, and another
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QCR dated June 11, 2012, which lists a surveys and analyses of the
elevator conducted on April 12, and May 12, 2012, the former
approximately two months and one week, and the latter approximately
one month and one week before the accident. Her expert opines
that each QCR documents the opening time of the elevator door as
4.3 seconds, while posting the standard opening time as 2.0 - 2.5
seconds; and the closing time of the elevator door as 5.3 seconds,
while posting the standard time as 4. 0 - 4. 8 seconds. Such
evidence raises a triable issue of fact whether the defendants
were on notice of the alleged dangerous condition. (NYSCEF Doc.
No. 101, p. 3.)
Moreover, as plaintiff's complaint does not depend entirely
on the applicability of res ipsa loquitur, summary judgment, on
that basis, in favor of defendants is not warranted. Compare
Graham v Wohl, 283 AD2d 261 (1 st Dept 2001). Also, as stated in
Carter v New York City Housing Authority, 176 AD3d 605, 606 (1 st
Dept 2019), "disputed issues regarding defendant[s'] control and
whether, as defendant[s] contend, plaintiff's own actions may have
affected the instrumentality involved in the accident, are for the
jury to decide".
Finally, though the cross claim of defendant Centennial
Elevator Industries, Inc. against defendant John A. Van Duesen
Associates Inc. for contractual indemnity and for common law
indemnification fail for lack of privity and for lack of vicarious
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liability, respectively, the cross claim for common law
contribution of co-defendant Centennial Elevator Industries, Inc.
against John A. Van Duesen Associates Inc., as joint tort-feasor,
has merit. See Board of Hudson City School Dist v Sargent, Webster
& Fo 11 e y, 7 1 NY 2 d 2 1 , 2 7 ( 1 9 8 7 ) .
However, neither defendants 61 West 62 Owners Corp./Cooper
Square Realty, Inc., nor defendant Centennial Elevator Industries,
Inc., append a copy of the contract between defendant Centennial
Elevator Industries, Inc., and defendant Cooper Square Realty,
Inc., or the contract between Cooper Square Realty, Inc. and
defendant 61 West 62 Owners Corp to their motion papers. Thus,
the court is unable to determine the merit or lack thereof of the
cross claims of defendant Centennial Elevator Industries, Inc.
against defendants 61 West 62 Owners Corp and/or Cooper Square
Realty, Inc.
Before the court is a copy of the contract between defendant
Van Duesen and defendant Cooper Square Realty, which makes
defendant Van Duesen responsible for the worked performed directly
by its employees only. (NYSCEF Document Number 81, p 5 "VI
Indemnification"). Such provision and the other evidence before
this court raises an issues of fact with the cross claims for
contractual indemnification of defendant Van Duesen against co-
defendant Cooper Square Realty, with respect to vicarious
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liability, precluding summary judgment dismissal of defendant Van
Duesen's cross claims against defendant Cooper Square Realty, Inc.
P- ~ fl - } ~
20240520151537DJAMES3F1C7C400BBC4033808538237AFFAA2B
5/20/2024
DATE
CHECK ONE:
APPLICATION:
CASE DISPOSED
GRANTED
SETTLE ORDER
0 DENIED
8 DEBRA A. JAMES, J.S.C.
NON-FINAL DISPOSITION
GRANTED IN PART
SUBMIT ORDER
□
OTHER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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