Pelzer v. Transel Elevator & Electric Inc.

[380] Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 21, 2006, which, to the extent appealed from, denied appellant’s motion for summary judgment dismissing the complaint, affirmed, without costs. Because the doctrine of collateral estoppel is applicable to the quasi-judicial determinations of administrative agencies such as the Unemployment Insurance Appeal Board, such determinations become binding in a subsequent legal action for purposes of issue preclusion (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]). However, “[s]ince administrative agencies are normally charged with making determinations based on unique, and often times complex, statutes and regulations which apply specifically to them, care must be taken in identifying the precise issue necessarily decided in the first proceeding and comparing it to the issue involved in the second proceeding” (Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [1986], affd 69 NY2d 753 [1987]). Here, the only issue decided in the unemployment proceeding was whether or not plaintiff had committed misconduct within the meaning of Labor Law § 593 (3) in connection with his employment by defendant Olmstead Properties, the managing agent of the building. The Administrative Law Judge found that plaintiff had disobeyed the building superintendent’s direct orders and that such disobedience, when he knew or should have known that his actions would jeopardize his employment, constituted misconduct. Contrary to appellant’s contentions, the issues of sole proximate cause and assumption of risk were not before the Administrative Law Judge and were not decided in the administrative proceeding. We reject the dissenters’ conclusion that, as a matter of law, plaintiff was the sole proximate cause of his injuries. While it was hazardous for plaintiff to climb in and out of the stalled elevator cab, plaintiff was in communication, directly or by radio, with the building’s superintendent (Bill Bent), who was standing next to appellant’s employee (Semyon Genyuk) when he restored power to the elevator, causing it to move and injure plaintiff. Thus, both were aware of plaintiffs activities, and the extent to which his actions and those of appellant’s employee contributed to the injuries sustained presents a question of fact for resolution by a jury under principles of comparative negligence. The doctrine of primary assumption of the risk, embraced by the dissent, is inapplicable to the circumstances herein. The evidence shows that Bent directed plaintiff to get back into the [381] elevator, and moments later the power was turned back on, resulting in plaintiffs injuries. Bent testified: “ ‘Gregory, where are you?’ He says I’m outside. I says ‘Why are you outside?’ I told you to stay in the back of the elevator with the two guys from Time Warner, to stay there and stay in the back until we get the car moving.” Bent was also asked if he told plaintiff to get back in the elevator, to which Bent responded, “Yes.” The next question was how long after he yelled to plaintiff to get back in the elevator did Genyuk turn the power back on. Bent responded, “It was only moments.” Once again, as Bent was communicating with plaintiff, Bent was standing next to Genyuk, who heard the communication yet proceeded to turn the power back on, causing the elevator to move and crush plaintiff. Bent’s testimony was inconsistent and contradictory throughout his examination, and the portions recited by the dissent merely confirm the existence of factual issues. Bent initially stated that he directed plaintiff to get back into the elevator but later denied it. Asked several times if he knew whether plaintiff was in or out of the elevator’s cab while he was communicating with him, Bent variously answered both “yes” and “no.” At the least, his testimony raises factual issues as to whether he directed plaintiff to get back into the elevator and whether Genyuk was negligent in restoring the power without first ascertaining if the elevator was clear. The dissent selectively cites the portions of Bent’s testimony that support appellant’s cause while completely disregarding those passages that are damaging to plaintiffs position. It should be noted that there were two other individuals in the elevator cab, and no person in defendants’ employ attempted to ascertain where they were before putting the power switch back on. The two individuals testified that they did not hear anyone telling them to remain in the elevator. Extensive and unrestricted application of the doctrine of primary assumption of the risk to tort cases generally represents a throwback to the former doctrine of contributory negligence, wherein a plaintiffs own negligence barred recovery from the defendant. However, even if the facts of this matter were examined under contributory negligence principles, a factual question would remain as to whether appellant’s employee could have prevented injury under the doctrine of the last clear chance (see New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78, 83 [2000]), and summary judgment would still be inappropriate. Finally, in light of the evidence that the building superinten [382] dent knew plaintiff was climbing in and out of the stalled elevator but did not know where he was at the moment power was restored, it has not been demonstrated that plaintiffs actions constitute “an unforeseeable superseding event that absolves defendants of liability” (cf. Boltax v Joy Day Camp, 67 NY2d 617, 620 [1986]). Concur—Tom, J.P., Mazzarelli and Buckley, JJ.