Case Summary: Rozeta Camaj et al. v. East 52nd Partners et al.; Schindler Elevator Corporation

Factual and Procedural Background

This is an appeal to the Appellate Division, First Department, from the Supreme Court, Bronx County (Jerry Crispino, J.), dated May 4, 1995. Prior to the accident, building management (Jones Lang Wooton, USA) learned the elevator had ceased functioning and called Schindler Elevator Corporation, which had an exclusive maintenance and repair contract with owner East 52nd Partners. The contract provided minimum preventive maintenance hours, 24-hour emergency minor adjustment service, periodic safety testing and required exclusive performance of repairs by Schindler; building personnel were instructed to notify Schindler and not perform repairs. Schindler promptly serviced the car and restored it to operation. Shortly thereafter, while plaintiff was using the elevator, it allegedly dropped, stopped and bounced several times, causing injury.

Legal Issues Presented

Whether East 52nd Partners, as owner of a multiple dwelling, is liable to plaintiff given its nondelegable duty under Multiple Dwelling Law § 78 despite contracting maintenance to Schindler.
Whether the elevator's initial failure to operate or alleged improper maintenance provided actual or constructive notice to East 52nd such that summary judgment for East 52nd against plaintiff should be precluded.
Whether East 52nd is entitled to summary judgment on its cross-claim against Schindler for indemnification.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rogers v Dorchester Assocs., 32 N.Y.2d 553	Owner can be sued despite transferring maintenance responsibility to another, provided owner had actual or constructive notice of the malfunction.	Used to explain that plaintiff may maintain action against East 52nd even though maintenance was contracted to Schindler, if East 52nd had notice.
Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106	Support for granting indemnification upon appropriate record showing.	Relied upon to grant summary judgment in favor of East 52nd on its cross-claim against Schindler for indemnification after searching the record.

Court's Reasoning and Analysis

The court found as follows:

East 52nd, as owner of a multiple dwelling, owes a nondelegable duty to maintain its premises, including elevators, in a reasonably safe condition under Multiple Dwelling Law § 78.
Under Rogers, plaintiff may sue East 52nd despite its contract with Schindler, but recovery against the owner requires actual or constructive notice of the dangerous condition.
The initial failure of the elevator to operate and the affidavit of plaintiff's expert (alleging high speed stop and bouncing resulted from improper maintenance over time) raise triable issues of fact as to whether East 52nd had actual or constructive notice; these issues preclude summary judgment in favor of East 52nd on plaintiff's claim.
Because Schindler had an extensive, exclusive maintenance and inspection contract and was promptly notified, any liability of East 52nd, if it exists, arises solely from its nondelegable duty; actual negligence, if proved, must be attributable to Schindler.
Accordingly, on East 52nd's cross-claim for indemnification against Schindler there are no triable issues precluding summary judgment, and the court granted summary judgment for East 52nd on indemnification after searching the record (citing Merritt Hill).

Holding and Implications

The court denied summary judgment for East 52nd on plaintiff's claim (triable issues of notice and maintenance remain) and granted summary judgment in favor of East 52nd on its cross-claim against Schindler for indemnification.

Direct consequences: plaintiff's action against East 52nd proceeds on issues of actual or constructive notice and alleged improper maintenance; East 52nd is entitled to indemnification from Schindler if negligence is ultimately attributed to Schindler. The opinion does not announce a new legal rule beyond application of established authority.

Concurrence noted: Rubin, J.P., Ross, Nardelli, Williams and Tom, JJ.

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ROZETA CAMAJ et al., Respondents-Appellants, v. EAST 52ND PARTNERS et al., Respondents, and SCHINDLER ELEVATOR CORPORATION, Appellant-Respondent.

The relevant undisputed evidence before the IAS Court established that just prior to the accident, the owner, East 52nd Partners, through its building manager, Jones Lang Wooton, USA, became aware that the elevator in which plaintiff was later injured had ceased functioning and required service. A service call was made to Schindler Elevator Corporation, who had a contract with East 52nd to maintain and repair all elevators in the building. The contract provided for 42 hours per-month minimum preventive maintenance, 24 hours per-day emergency minor adjustment service and periodic safety testing and performance evaluations, and for all repair and maintenance to be exclusively performed by Schindler. In addition, the building personnel were instructed to notify Schindler whenever a problem arose and to do no repair work themselves. The car was promptly serviced by a Schindler mechanic and immediately restored to full operation, but, shortly thereafter, while in use by plaintiff, dropped suddenly, stopped and bounced several times, allegedly causing her injury.

East 52nd, as owner of a multiple dwelling, owed a nondelegable duty to persons on its premises to maintain the elevator in a reasonably safe condition (Multiple Dwelling Law § 78). Plaintiff, therefore, can maintain the action against East 52nd even though the responsibility for maintenance had been transferred to another (Rogers v Dorchester Assocs., 32 N.Y.2d 553), provided East 52nd had notice, actual or constructive, of the malfunction (supra, at 562).

Whether the elevator's failure to operate in the first instance constituted notice to East 52nd of the condition that allegedly caused the accident is a triable issue of fact precluding summary judgment in favor of East 52nd and against plaintiff. In addition, an issue of constructive notice is raised by the affidavit of plaintiff's expert engineer claiming that the high speed stop and bouncing of the elevator resulted from improper elevator maintenance over a period of time.

However, based upon Schindler's extensive contract to handle all maintenance and inspection and the prompt notification to Schindler of the trouble, East 52nd's liability here arises, if at all, solely by reason of its non-delegable duty. Actual negligence, if found, must be attributable to the acts or omissions of Schindler. Accordingly, there are no triable issues precluding summary judgment in favor of East 52nd on its cross claim against Schindler for indemnification, and we grant that upon a search of the record (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106).

Concur — Rubin, J.P., Ross, Nardelli, Williams and Tom, JJ.

CAMAJ v. EAST 52ND PARTNERS