Cite as: Tingling v. C.I.N.H.R., Inc., 13186 2004, NYLJ 1202585571063, at *1 (Sup., QU, Decided October 15, 2012)

Justice Duane Hart

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Decided: October 15, 2012

ADDITIONAL CASES

Thyssenkrupp Elevator Corporation, Third-Party Plaintiff, v. Central Island Nursing Home, Inc., Third-Party Defendant.

The following papers numbered 1 to 32 read on this (1) motion by ThyssenKrupp Elevator Corporation (Thyssen), for summary judgment in its favor and to compel Central Island Nursing Home, Inc. (Central Island), to indemnify Thyssen for costs and expenses incurred in this action and for failure to procure insurance; (2) motion by C.I.N.H.R., Inc. (CINHR), to renew/reargue the court's decision denying CINHR's motion for summary judgment; (3) motion by Thyssen for summary judgment in its favor on its claims for defense, indemnity and contribution against Central Island; and (4) cross motion by Central Island to dismiss the third-party complaint pursuant to CPLR 3212.

Papers Numbered

Notices of Motions-Affidavits–Exhibits1-12

Notice of Cross Motion-Affidavits–Exhibits13-16

Answering Affidavits–Exhibits17-22

Reply Affidavits23-32

 

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Upon the foregoing papers it is ordered that the motions and cross motion are decided as follows:

Plaintiff in this negligence action seeks damages for personal injuries sustained on March 16, 2003, when she was injured while using one of the elevators at Central Island Nursing Home, Inc. Specifically, plaintiff alleges that when she exited the elevator, she was caused to stumble forward because the elevator was mis-leveled with the adjacent floor. Plaintiff was employed by Central Island at the time of the accident.

Plaintiff commenced the instant action against the elevator company, ThyssenKrupp Elevator Corporation (Thyssen). Thyssen then commenced a third-party action against the nursing home, Central Island, to recover damages, inter alia, for breach of its contract to procure insurance naming it as an additional insured. CINHR owns the premises.

Facts

Plaintiff, a former certified nursing assistant at the Central Island Nursing home, was injured on March 16, 2003, on elevator number 2 at the Central Island Nursing Home, located at 825 Old Country Road, Plainview, New York. Plaintiff commenced the instant lawsuit against Thyssen, alleging that Thyssen was responsible for her injuries because Thyssen "caused, permitted and allowed" the elevator at Central Island to be, become and remain in a dangerous and hazardous condition. Plaintiff further alleges that Thyssen failed to properly inspect, supervise, maintain and repair the subject elevator. Thyssen thereupon commenced a third-party action against Central Island for indemnification.

On or about November 11, 1996, Dover Elevator Company ("Dover"), the corporate predecessor to Thyssen, entered into a maintenance contract with Central Island. Pursuant to the 1996 contract, Dover agreed to maintain and repair two (2) passenger elevators and one (1) freight elevator at Central Island. The 1996 contract further required Central Island to name Dover as an additional insured under their general liability and excess (umbrella) insurance policies for, inter alia, "all claims for loss, damage…of any person, entity or

 

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property while riding on, being in or about the elevator(s) which are the subject of this contract". In 2000, the parties executed an addendum to the 1996 contract (2000 addendum), which also required Central Island to procure insurance that would protect Dover from exposure to claims for such personal injury as in the instant matter, and to name Dover as an additional insured on Central Island's liability and any excess (umbrella) liability insurance policy(ies).

At some point prior to the accident, Dover merged with or was taken over by Thyssen. The Central Island/Dover contract is said to have survived the merger/takeover and allegedly provides indemnity to Thyssen.

Motion by Thyssen for summary judgment

This motion by Thyssen is the third motion for summary judgment in this case, and it violates the general proscription against successive summary judgment motions absent "a showing of newly discovered evidence or other sufficient cause" (Marine Midland Bank v. Fosher, 85 AD2d 905, 906 [date]; see Taylor v. Brooklyn Hosp., 187 AD2d 714 [date]). Moreover, there are material issues of fact which preclude the granting of summary judgment.

Emphatically, Thyssen's corporate filings do not, as held by this Court and affirmed by the Appellate Division, Second Department (see Tingling v. C.I.N.H.R. Inc., 74 AD3d 954 [2010]), establish that Thyssen is entitled to the benefits of Central Island's contract with Dover from 1996 without any evidence that Central Island agreed to procure insurance for Thyssen after Thyssen purportedly purchased Dover in 1999.

If Thyssen makes any future motions for summary judgment on these grounds, the court will consider the imposition of sanctions therefor (see Jacobs v. Cirnigliaro, 259 AD2d669 [1999]; cf. Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v. 198 Broadway, 76 NY2d 411 [1990]; William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 32 [1992], lv. dismissed in part and denied in part 80 NY2d 1005 [1992] ).

Motion by CINHR to renew/reargue

The motion by CINHR to renew/reargue the court's decision denying CINHR's prior motion for summary judgment, is denied.

CINHR made a prima facie showing of entitlement to judgment as a matter of law with evidence indicating that it neither created nor had actual or constructive notice of the misleveling of the elevator that allegedly caused the plaintiff to fall (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Bykofsky v. Waldbaum's Supermarkets, 210 AD2d 280 [1994]). However, in opposition, the plaintiff raised a triable issue of fact by submitting evidence from a nonparty witness (Thyssen's service mechanic) who testified that he told the head of engineering for Central Island, Jack Brieman, that he (mechanic)

 

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"highly recommended modernization of the elevators" at Central Island Nursing Home more than 10 times before plaintiff's accident (see Gurevich v. Queens Park Realty Corp., 12 AD3d 566 [2004]; Ardolaj v. Two Broadway Land Co., 276 AD2d 264, 264-265 [2000]; O'Neill v. Mildac Props., 162 AD2d 441, 442-443 [1990]). Moreover, Thyssen's service mechanic even wrote on one of the elevator maintenance tickets provided to Central Island's engineering department "highly recommend modernization of the elevators". A Central Island engineer signed these work tickets. It is alleged that the head of engineering, after being told multiple times that the elevators needed to be modernized and were past their useful life expectancy, would likely notify the landlord and owner of the building of this fact.

Contrary to the contention of the owners, they had a nondelegable duty to maintain and repair the elevator on the premises (see Rogers v. Dorchester Assoc., 32 NY2d 553 [1973]; Fuchs v. Elo Group, 297 AD2d 658, 659 [2002]). Although the owner contracted with the elevator company to handle all maintenance and repair work, liability can be found against the owner if the owner received notice of a defect and failed to remedy it (Rogers v. Dorchester Assoc., supra). Thus, the plaintiff's evidence on the issue of constructive notice raises a triable issue of fact regarding the owner's negligence.

Motion by Thyssen for summary judgment in its favor on its claims for defense, indemnity and contribution against Central Island

The motion by Thyssen for summary judgment in its favor on its claims for defense, indemnity and contribution against Central Island, is denied.

In the case of Hooper Assocs. v. AGS Computers (74 NY2d487, 491-492), the Court of Appeals stated: "Words in a contract are to be construed to achieve the apparent purpose of the parties…This is particularly true with indemnity contracts. When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed…The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" (see also, Weissman v. Sinorm Deli, 88 NY2d 437, 447 [1996]; Rosado v. Proctor & Schwartz, 106 AD2d 27 [1984], affd 66 NY2d 21 [1985]). Here, Thyssen relies upon an elevator maintenance contract between another company, Dover Elevator Company, and Central Island dating back to 1996. There is no agreement between Thyssen and Central Island requiring the latter to indemnify the former with respect to the plaintiff's action (see Solomon v. City of New York, 111 AD2d 383, affd 70 NY2d 675). Accordingly, the motion by Thyssen for summary judgment on its claims for defense, indemnity and contribution against Central Island, is denied.

Cross Motion by Central Island

Relatedly, Central Island is entitled to summary judgment dismissing the causes of action asserted in the third-party complaint which are predicated upon contractual

 

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indemnification.

Here, there is no evidence that a contract exists requiring Central Island to indemnify or procure insurance for Thyssen (see Scally v. Regional Indus. Partnership, 9 AD3d 865, 869 [2004]; Petrillo v. Durr Mech. Constr., 306 AD2d 25, 26 [2003]; Aiello v. Rockmor Elec. Enters., 255 AD2d 470, 472 [1998]).

To the extent that Thyssen is relying upon the language in the Dover contract, the language therein requires the purchaser to indemnify Dover Elevator "against any and all liability" without regard to who or what caused the injury and "regardless of whether such claims arise out of the joint or sole negligent acts or omissions of Dover Elevator Company, its officers, employees or by any other cause whatsoever". Since Dover Elevator and not Central Island controlled the elevator maintenance and determined what repairs were needed to the elevators, the indemnity provision is without limitation and violates General Obligations Law §5-322, rendering it unenforceable (see Carriere v. Whiting Turner Contracting, 299 AD2d 21 [2002]).

Conclusion

The motions are denied. The cross motion is granted.