Ellerbee v. 61 W. 62 Owners Corp.

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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 ----------------------------------------------------------------- ----------------X INDEX NO. 150003/2013 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. ------------------------------------------------------------------- --------------X

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

150003/2013 ELLERBEE, LISA vs. 61 WEST 62 OWNERS CORP. Page 1 of 7 Motion No. 002 003

INDEX NO. 150003/2013 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 05/20/2024

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

150003/2013 ELLERBEE, LISA vs. 61 WEST 62 OWNERS CORP. Page 6 of 7 Motion No. 002 003

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INDEX NO. 150003/2013 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 05/20/2024

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

150003/2013 ELLERBEE, LISA vs. 61 WEST 62 OWNERS CORP. Page 7 of 7 Motion No. 002 003

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Footnotes

[1] of 7 [* 1] 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 150003/2013 ELLERBEE, LISA vs. 61 WEST 62 OWNERS CORP. Page 2 of 7 Motion No. 002 003

[2] of 7 [* 2] 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 150003/2013 ELLERBEE, LISA vs. 61 WEST 62 OWNERS CORP. Page 3 of 7 Motion No. 002 003

[3] of 7 [* 3] 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 150003/2013 ELLERBEE, LISA vs. 61 WEST 62 OWNERS CORP. Page 4 of 7 Motion No. 002 003 4 of 7 [* 4] 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 150003/2013 ELLERBEE, LISA vs. 61 WEST 62 OWNERS CORP. Page 5 of 7 Motion No. 002 003 5 of 7 [* 5]