Barnes v. Astoria Fed. Sav. & Loan Ass'n

220 A.D.3d 725

197 N.Y.S.3d 551

James BARNES, plaintiff-respondent,

v.ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, defendant third-party plaintiff-respondent,Otis Elevator Company, defendant third-party defendant-appellant.

2020–08860

Index No. 702781/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 31, 2023

October 11, 2023

Gordon Rees Scully Mansukhani, LLP, New York, NY (Jacob C. Cohn and Jacqulyn N. Simmons of counsel), for defendant third-party defendant-appellant.

The Barnes Firm, P.C., Buffalo, NY (Martha M. Pigott of counsel), for plaintiff-respondent.

Victoria A. Turchetti, New York, NY (Anoushka S. Bayley of counsel), for defendant third-party plaintiff-respondent.

ANGELA G. IANNACCI, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party defendant appeals from an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), entered October 20, 2020. The order, insofar as appealed from, denied those branches of the motion of the defendant third-party defendant which were for summary judgment dismissing the amended complaint insofar as asserted against it, all cross-claims, and the third-party complaint, and on its cross-claim for contractual indemnification against the defendant third-party plaintiff.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

On October 6, 2016, the plaintiff, while a passenger inside an elevator located in a building owned by Astoria Federal Savings and Loan Association (hereinafter Astoria Federal), allegedly was injured when an escape hatch panel fell from the ceiling of the elevator. The plaintiff commenced this action to recover damages for personal injuries against Astoria Federal. Astoria Federal commenced a third-party action against Otis Elevator Company (hereinafter Otis Elevator), the company retained by Astoria Federal to maintain and service the elevator under a written contract, seeking, inter alia, indemnification and contribution. The plaintiff subsequently amended the complaint to add Otis Elevator as a defendant. Thereafter, Astoria Federal asserted, among other things, cross-claims for indemnification and contribution. Otis Elevator asserted a cross-claim for contractual indemnification.

Otis Elevator moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it, all cross-claims, and the third-party complaint, and on its cross-claim for contractual indemnification against Astoria Federal, contending that it did not owe or breach a duty of care to the plaintiff. In an order entered October 20, 2020, the Supreme Court, inter alia, denied those branches of Otis Elevator's motion. Otis Elevator appeals. We affirm.

"Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" ( Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., 197 A.D.3d 1274, 1282, 154 N.Y.S.3d 113 [internal quotation marks omitted]; see Dautaj v. Alliance El. Co., 110 A.D.3d 839, 840, 972 N.Y.S.2d 691 ). "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. Further, a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons ... where the contracting party has entirely displaced the other party's duty of safe maintenance" concerning, for instance, a passenger elevator ( Carter v. Nouveau Indus., Inc., 187 A.D.3d 702, 703, 131 N.Y.S.3d 687 [citation...