Defendants THE ESTATE OF SOL GOLDMAN (Goldman), 41-45 WEST 34, LLC. (41-45), MIDBORO HOLDING COMPANY (Midboro), and WINOKER REALTY CO. (Winoker) move seeking an Order granting them summary judgment over the plaintiff and all other defendants. Goldman, 41-45, Midboro and Winoker assert many grounds for the instant relief, but primarily, submitted that to the extent that the elevator door herein failed as a result of the force exerted upon it by plaintiff and third-party defendant MOHAMMED FOFANA (Fofana)another individual, the door herein was not defective and as such there was no notice of any prior defect. Goldman, 41-45, Midboro and Winoker also move seeking an Order declaring that defendant ALLIANCE ELEVATOR COMPANY (Alliance) s/h/a UNITEK/NORTH AMERICAN ELEVATOR SERVICE was the elevator company responsible for the maintenance and repair of the elevator herein, including the shaft doors. Goldman, 41-45, Midboro and Winoker allege that Alliance was the elevator maintenance company hired to maintain the elevator herein and that the contract herein delegated all maintenance of the instant elevator to Alliance. Lastly, Goldman, 41-45, Midboro and Winoker move seeking an Order granting them summary judgment over Alliance on their cross-claim for common law indemnification. [*2]Goldman, 41-45, Midboro and Winoker assert that to the extent that this cause of action is for failure to maintain the elevator, any liability as to them is vicarious and as such they are entitled to common law indemnification. Plaintiff opposes the instant motion for a host of reasons. Primarily, plaintiff asserts that to the extent that the elevator herein had been issued multiple violations prior to and after the instant accident, Goldman, 41-45, Midboro and Winoker had prior notice of the defective door alleged herein. Alliance opposes the instant motion tot the extent that Goldman, 41-45, Midboro and Winoker seek a declaratory judgment and summary judgment on the cross-claim for common law indemnification. Alliance asserts that the instant action has never been for declaratory judgment and as such, such relief is procedurally barred. Further Alliance alleges that to the extent that Alliance's maintenance contract for the elevator herein did not include the maintenance and repair of the elevator doors, it is not obligated to indemnify Goldman, 41-45, Midboro and Winoker for said doors' failure.

Alliance separately moves seeking summary judgment over plaintiff and Goldman, 41-45, Midboro and Winoker. Alliance seeks summary judgment on many different grounds including the grounds raised by Goldman, 41-45, Midboro and Winoker, namely that the proximate cause of the accident herein was the force exerted upon the elevator door rather than a defective condition. Like Goldman, 41-45, Midboro and Winoker, Alliance also seeks summary judgment asserting that there was no prior notice with respect to the defective condition which allegedly caused plaintiff's accident. Plaintiff opposes Alliance's motion to the extent it seeks summary judgment over plaintiff, asserting that questions of fact on the issue of causation and notice preclude summary judgment. Goldman, 41-45, Midboro and Winoker oppose Alliance's motion to the extent that it seeks summary judgment on all grounds except lack of notice and proximate causation.For the reasons that follow hereinafter, Goldman, 41-45, Midboro and Winoker's motion is granted in part and Alliance's motion is granted in its entirety.

The instant action is for alleged personal injuries. The amended complaint alleges that on February 6, 2004, plaintiff was injured within the premises located at 64 West 35th Street, New York, NY (also known as 45 West 34th Street). It is alleged that plaintiff fell down the 4th floor elevator shaft. It is alleged that the premises herein was owned by Goldman, 41-45 and Midboro, managed by NEWMARK & COMPANY REAL ESTATE, INC. (Newmark) prior to February 6, 2004, and managed by Winoker after February 6, 2004. It is alleged that defendant, Alliance maintained, serviced, and inspected the elevator herein. It is alleged that defendants were negligent with regard to the repair and maintenance of the subject elevator and that said negligence was the cause of plaintiff's accident. Within his bill of particulars, plaintiff alleges that in failing to maintain the elevator, defendants violated the New York City Building Code, specifically Rule 27-329 and Rule 110.13e, Section 1.

Within their answer, Goldman, 41-45, Midboro, and Winoker interposed cross-claims against Alliance for indemnification, contribution, and breach of contract. Within their answer, Alliance interposed cross-claims for contribution and indemnification.

In support of its motion Goldman, 41-45, Midboro, and Winoker submit several certified documents obtained by subpoena from the New York City Department of Buildings. As part of said records, an accident report states, in pertinent part, that on February 6, 2004 the plaintiff was involved in an accident within the premises located at 64 West 35th Street. The accident involved Fofana. The investigator assigned was Thomas Davies (Davies). The accident involved freight elevator 1P6028, the same was not moving at the time of the accident herein. [*3]The elevator involved was last inspected on September 4, 2003 and violation number PVT 79249 was issued. The last five year test was performed on March 10, 1997.

Also part of said records is a report from Davies and James Miller (Miller) states, in pertinent part, as follows. On February 6, 2004, Davies arrived at the premises herein after a complaint was received regarding an incident involving the elevator herein. Upon arrival the elevator, herein was out of service and at the main floor. Davies, with the help of Miller performed an inspection of the elevator. Upon inspection it was noted that the 4th floor hoistway door was damaged. The 2nd floor hoistway door was removed by the fire department as was the basement hoistway door. There was a hole in the elevator cab measuring 8 feet by five feet in size, which was cut by the fire department. The 12th floor hoistway doors were ready to fall due to loose hanger track bolts and some missing bolts. The elevator herein was in need of a five year test. The hoistway had windows with ledges on every floor and the same were not marked nor were they enclosed as per New York City Building Code 27-344. The hoistway contained multiple obstructions, including two water pipes which ran the length of the hoistway. The hoistway had falling plaster and holes big enough for a person to fit through. The main elevator machine located directly under the elevator lacked a partition separating the hoistway from the machine room. The machine room had three inches of water and the hoist ropes showed signs of rust. Nine out of twelve doors did not have stop bolts engaged, including the 4th floor hoistway door. As a result, the doors were allowed to sway, compromising the strength of the doors.

A violation was issued mandating that all the hoistway entrances be boarded up. Davies instructed Winoker to provide protection for the basement, 2nd and 4th floor doors and that the elevator not be used until reinspection and testing by the Department of Buildings. Winoker also boarded the 12th floor door. Davies concludes that little to no maintenance was being performed upon the doors of the elevator. Davies concludes that the accident herein occurred due to the force of plaintiff and Fofana's impact with the 4th floor elevator hoistway door.

As part of said records are copies of several violations issued to Midboro for the elevator in question. Violation number PVT-79249 was issued on September 4, 2003 for the failure to display a tag on the elevator. Violation PVT-40990 was issued on August 1, 2001, and was for damaged hoistway door gibs. Violation 38144936R was issued February 6, 2004 and was issued for a host of reasons, including defective hoistway doors.

As part of said records is an Elevator Inspection report, indicating that when the elevator herein was inspected on September 12, 2003, it was found to be unsatisfactory.

Goldman, 41-45, Midboro, and Winoker submit a copy of portions of plaintiff's deposition transcript, wherein he testified, in pertinent part, as follows. On February 6, 2004, plaintiff fell down the freight elevator shaft within the premises located at 64 West 34th Street. The premises herein was a commercial building with three passenger elevators and a freight elevator. On the date herein, plaintiff went to the premises herein to purchase CDs and DVDs from Mr. Ba (Ba), who sold the same from a room located on the fourth floor. Plaintiff rode one of the passenger elevators to the fourth floor and entered the room where Ba sold the CD and DVDs. While in the room another person named Tony entered the room. Plaintiff had made his selections and thereafter, Ba went to the bathroom. While waiting for Ba to return, there was a knock at the door. Plaintiff opened the same and saw Fofana, who he had seen on prior occasions. Plaintiff told Fofona that he could not enter the room because Ba was not there. Fofana began to yell and plaintiff exited the room closing the door behind him. Fofana moved [*4]back and ultimately against the door to the freight elevator, which was located directly across from Ba's room. As Fofana leaned against the door of the freight elevator it slid open and Fofana stumbled. As he tried to regain his balance he grabbed plaintiff pulling both of them into the opening and down the shaft. The freight elevator herein had two doors, one was a gate attached to the elevator itself. When plaintiff fell into the shaft the elevator was not on the fourth floor and was in the basement. Prior to the accident herein, plaintiff had never used the freight elevator and knew of no complaints regarding the same. Plaintiff would visit the location herein three times a week.

Goldman, 41-45, Midboro, and Winoker submit portions of Fofana's deposition transcript, wherein he testifies, in pertinent part, as follows. On date herein, Fofana was involved in an accident within the premises located at 45 West 34th Street. Fofana went to the premises herein to see two men, Ba and Dealloa, who sold CDs and DVDs from an office located on the fourth floor. Prior to the accident, Fofana had known Ba for seven months and had been at the location herein several times per week. On the date herein, Fofana reported to the premises herein with two individuals who wanted to purchase CDs. Fofana intended to make a profit from the CDs these two individuals bought. Upon arriving at the premises with the two individuals, Fofana rode one of the three elevators therein to the fourth floor. He knocked on Ba's door and got no answer. Fofana went down to the lobby to look for Ba. He found Ba who stated that Dealloa was in the office and that Fofana should return to the office. Fofana returned to the fourth floor and noticed that his customers, the two individuals, were no longer there. He knocked on Ba's door and plaintiff answered. Fofana had seen the plaintiff on prior occasions and knew him to be someone who sold Cds and DVDs on the street. Plaintiff opened the door and did not let Fofana in. Fonana stated that his customers were inside and insisted that he be let in to consummate his transaction. Plaintiff refused to let Fofana in telling him to wait outside until after his customers picked out their CDs. Fofana attempted to enter the room and was picked up and pushed by plaintiff. A second attempt to enter the room resulted in another push.

Goldman, 41-45, Midboro, and Winoker submit an affidavit from Allan Goldman (Allan), where in he states, in pertinent part, the following. Allan is the executor of Goldman and a member of 41-45. Goldman owns 41-45, which holds title to land upon which the premises herein sits. The land herein was deeded to 41-45 and thereafter leased to Midboro pursuant to a triple net lease. Midboro owns the premises herein and it contracted with all contractors for the management of the same. Goldman nor 41-45 had any duties related to the management of the building or the elevators herein and as such they never performed any maintenance upon the same. Goldman nor 41-45 have a right to re-enter the premises herein unless consent is obtained from Midboro and only if Midboro fails to comply with a notice to cure a defect. Goldman nor 41-45 employed any entity to manage the building or to maintain the elevator. The elevators herein were maintained by Alliance a company hired by Midboro. Annexed to Allan's affidavit are uncertified copies of several documents. First, there is a copy of the deed whereby GSL Enterprises, Inc., (presumably Goldman) conveyed the land herein to 41-45 on November 15, 20001. Second, a copy the triple net lease between two non-parties dated June 20, 1945. Lastly, there is a copy of a document whereby Midboro assumed the lease, as tenant, from the prior tenant on June 26, 1980.

Goldman, 41-45, Midboro and Winoker submit an affidavit from Robert Schustak (Schustak), who states, in pertinent part, as follows. Schustak is the managing member of [*5]Midboro. At the time of the incident alleged herein, Midboro had a ground lease for the property located at 41-45 West 34th Street, New York, NY. Midboro had possession and control of the building herein. Both the premises and the elevator herein were constructed prior to 1968. At the time of the accident herein, Midboro did not engage in the daily management of the premises herein. Said task was delegated to a management company. At the time of the incident alleged Winoker was the managing agent for the building herein. Winoker had assumed management of the building one week prior to the accident and prior to that Newmark was the managing agent. With regard to the property herein, Midboro employed a superintendent, named James Louallen (Louallen), an elevator operator named Lance Dixon (Dixon), and a porter named Raymond Kolar (Kolar). Midboro's employees were not responsible for the maintenance of the elevators at the premises herein. Midboro did not employ anyone with regard to elevator repair and maintenance. At the time of the accident alleged herein, Alliance was the company charged with elevator maintenance at the property herein. Midboro is not in possession of any records evidencing prior complaints or accidents related to the freight elevator's shaft doors. Annexed to Schustak's affidavit is an uncertified copy of the lease for the premises herein as well as a copy of assignment of said lease.

Goldman, 41-45, Midboro and Winoker submit James Louallen's (Louallen) two deposition transcripts, where he testified, in pertinent part, as follows. Louallen is the super at premises herein, was so employed on the date of the accident herein and has been employed by Midboro since 1971. His duties and responsibilities entailed light maintenance of the building herein. The building herein was a commercial unit with twelve floors and a penthouse. The same was occupied by approximately 80 tenants. The building had three passenger elevators and one freight elevator. The freight elevator was manually operated and was located on the building's 35th street side. The elevator had a door on every floor. Said door would swing open into the hallway. With regard to elevator operation, a person wishing to use the elevator would summon the elevator using buttons located near the doors on each floor. A buzzer would ring inside the elevator and lights would alert the operator.

Other than operating the elevators at the premises herein, occasionally disabling the same if necessary, and adjusting the doors if the same were not making contact, the building staff did not undertake repair and maintenance of the elevators herein. The freight elevator at the within location would be operated by Dixon, by Raymond Kolar (Kolar), and by Louallen during the Dixon's lunch break. Alliance was the company contracted to perform repairs and maintain the elevator. Alliance would come in for maintenance once a month and would come in if repairs were needed.

On the date of the accident alleged herein Winoker was the management company responsible for the management of the building. Louallen reported to Jose Toro (Toro), an employee with Winoker. Prior to Winoker, Newmark was the management company and Louallen reported to Ron Lessman (Lessman) with Newmark. On the date and the time herein Louallen was operating the elevator during Dixon's lunch break. While the elevator car was parked in the lobby and while Louallen stood near the same. He heard a loud noise which he thought emanated from the stairs. Upon further inquiry he discovered that the elevator lights were off. He then noted that someone was on top of the elevator car, he heard noises and pleas for help, and saw a hand with blood. Prior to the accident herein, Louallen, while operating the elevator, did not notice any problems with regard to the operation of the freight elevator. He did [*6]not note any issues with the door. Prior to the instant accident, Louallen was not apprised of any issues with the freight elevator or its doors by Dixon or anyone else. After the accident he noted that the fire department had removed freight elevator doors on the second and fourth floors. He also noted that certain portions of the elevator doors had sustained damage on the fourth floor. In particular, he noted that a bracket near the bottom of the door was bent and that the locking bolt had pulled loose. Louallen noted that the bracket and bolt were not that way prior to the accident herein and that had they been they would have affected the operation of the freight elevator. Louallen stated that had the conditions existed, the elevator would have hit the same.

Goldman, 41-45, Midboro and Winoker submit photo copies of the photographs discussed by Louallen at his deposition, and for some of which a foundation was laid. There are nineteen photographs submitted and they depict the freight elevator in question and the building herein.

Goldman, 41-45, Midboro and Winoker submit a copy of Dixon's deposition transcript, wherein he testified, in pertinent part, as follows. In February 2004, Dixon was employed by Winoker. His job was to operate the freight elevator at the premises herein. The elevator herein was manually operated. In order to operate the same one would have to slide the scissor gate closed, slide the hoistway door close and use a lever to move the car up and down. With regard to the 4th floor hoistway door, the same were actually two doors, one of which was permanently welded shut. The other door opened once a latch was manually released allowing the same to slide open. The hoistway doors had to be closed in order for the elevator to operate. Besides himself, Louallen, the superintendent would also operate the elevator during Dixon's lunch break. On the date herein, as was his custom, he had placed the elevator car in the basement and went to relieve the security guard. Upon his return, he found the elevator in the freight lobby with Louallen beside it. He noticed a bloody hand dangling from the top of the cab. Dixon reported to the 4th floor where he saw that the sliding hoistway door, was hanging off. Dixon testified that prior to the accident herein the track at the 4th floor hoistway door as well as several other pieces located thereat were not bent and were straight. The same had to be straight and not bent in order to allow the doors to close and allow the elevator to operate.

Prior to the incident herein Dixon had not noted any problems with the elevator or its 4th floor hoistway doors. He had not made any complaints regarding the same nor had he received any. He had never been informed that the hoistway doors needed repair. Dixon had never made any adjustments to the hoistway doors. Dixon did not customarily inspect the elevator herein, but if he noted any problems he would report the same. The elevator herein was serviced by Alliance.

Goldman, 41-45, Midboro and Winoker submit an affidavit from David Winoker (David), who states, in pertinent part, as follows. David is the president of Winoker. Winoker is the managing agent of the property herein and became the same on February 6, 2004, a few days prior to the accident alleged. Winoker managed the premises herein pursuant to a written agreement with Midboro. Winoker's property manager at the time was Jose Toro. When Winoker became manager, it received no records with regard to the freight elevator herein. Winoker is not in possession of any records evidencing complaints or defects with regard to the elevator. Winoker did not employ elevator mechanics and had no duty to inspect or maintain the elevators at the premises herein. Winoker made no repairs to the elevator prior to the accident alleged. At the time of the incident herein, Alliance was the company charged with the repair [*7]and maintenance of the elevator herein. Alliance maintained the elevator pursuant to written agreement whereby it agreed to fully maintain the freight elevator herein. Alliance performed an inspection of the elevator two days prior to the incident herein and did not inform Winoker or Midboro of any problem or defect with the elevator. Winoker did not maintain offices within the premises herein and did not have exlclusive control of the building.

Goldman, 41-45, Midboro and Winoker provide unsworn and uncertified copies of the freight elevator maintenance agreement, the passenger elevator maintenance agreement and the management agreement referenced by David in his affidavit.

Goldman, 41-45, Midboro and Winoker submit Jose Toro's (Toro) deposition transcript, wherein he testified, in pertinent part, as follows. In 2004, he was employed by Winoker as a property manager and one of the properties that he managed was the property herein, 45 West 34th Street. Louallen was the superintendent at the property herein and Dixon was the elevator operator. Winoker began to manage the property on February 2, 2004. On February 2, 2004, Toro visited the property herein and met with Louallen, who gave Toro a tour of portions of the building. The purpose of the tour was to get acclimated with the building. Toro rode the freight elevator and noticed that it was working fine. Louallen did not make any complaints with respect to the elevator and it was Toro's practice to inquire with regard to any elevator issues. Toro noticed that the freight elevator doubled as storage and was a very busy elevator. Toro noticed that the gate in the freight elevator was slightly bent and that the trap door was open. Toro did not have any discussions regarding the freight elevator with anyone from Newmark.

Goldman, 41-45, Midboro and Winoker submit Lessman's deposition transcript, wherein Lessman testified, in pertinent part, as follows. Lessman is employed by Newmark Knight Frank, successor to Newmark. Prior to February, 2004, 45 West 34th Street was managed by Newmark and Lessman was employed by Newmark as a property manager. 45 West 34th Street, was one of the buildings Lessman was assigned to manage. With regard to Newmark's management obligations at the instant property, they were responsible for all operational activities, including the maintenance of the elevators within the instant location. Lessman's responsibilities were to supervise the building staff and the building's operations. With regard to the elevators at the premises herein, Newmark would ensure the safe operation of the elevators but would not undertake to make repairs. Said repairs were conducted by the elevator maintenance company, which at the time, was Alliance. During Nemark's management of 45 West 34th Street, Lessman would visit the property on a weekly basis. He would ride the freight elevator at the premises herein approximately once a month. Lessman did not receive any complaints regarding the elevators at the premises. Lessman was never told about any alterations with regard to the elevators at the premises herein. Lessman did not know of any elevator violations at the premises herein. The elevator operator never told Lessman that the elevator herein was in disrepair. The building's superintendent never told Lessman that the elevator herein was broken. Lessman was never told that the freight elevator would be operated with the doors open or that doors would open or push into the elevator hoistway. Lessman stated that Newmark's management of 45 West 34th Street, ended on January 31, 2004 when management of said property was assumed by Winoker. At his deposition, Lessman could not authenticate the management agreement between Newmark and Midboro.

Goldman, 41-45, Midboro and Winoker submit a copy of Hank Krussmann's (Krussmann) deposition transcript, wherein he testified, in pertinent part, as follows. In 2003, [*8]Krussmann was employed by Landmark Elevator Consultants (Landmark). Landmark was a full service elevator consulting firm, who among other things, performed code-related elevator inspections for the City of New York. One of the inspections performed by Landmark was Local Law 1081 (1081) inspections. A 1081 inspection entails a physical visual inspection of an elevator and includes riding the elevator and checking all the equipment for functionality. Such an inspection includes the inspection of hoistway doors and gate doors. In September 2003, Krussmann performed the 1081 inspection of the freight elevator herein. Upon inspection of the elevator, he issued the same as "unsatisfactory," because said elevator had not had a mandated five year test performed. He stated that when he looked for the tags indicating that the five year test had been conducted he found none. Said test, tested the elevator's full load safety and entailed loading the elevator with weights, tripping the governor, and allowing the same to go on mechanical safeties. Had Krussmann noted any defects with the doors, either the hoistway or car doors, he would have noted the same on his report. His report did not contain any other problems with the elevator other than the failure to perform the five year test. When inspecting the hoistway doors, Krussmann would inspect the guides that the doors rode in to ensure that the same were not worn. He would ensure that the door was not bouncing out of the track or guide. The door interlock would also be checked, which is the part that ensures that the elevator is not operated with the door open.

Goldman, 41-45, Midboro, and Winoker submit another unsworn and uncertified copy of the Elevator Inspection Report performed by Krussman, this time with a copy of the second page. The second page indicates why the freight elevator herein received an unsatisfactory rating, namely the absence of a five year test.

Goldman, 41-45, Midboro, and Winoker submit portions of Paul Reinert's (Reinert) deposition transcript, wherein he testified, in pertinent part, as follows. Reinert is employed by Alliance and he serviced the elevator herein in 2003 and 2004. He performed maintenance on the elevator herein on a monthly basis . Said maintenance consisted of lubricating the guides and rail, checking the alarm, checking the motor, riding the elevator, and ensuring that the same did not operate with the doors open. When he would perform routine maintenance he would ask whether the elevator had any problems. He would report any issues to Louallen and if necessary would shut the elevator down. He would only repair or inspect the hoistway doors if a problem was reported to him or if while riding the elevator he noted a problem with the same. In that case, he would ensure that any issues with said doors was repaired. Ordinarily Alliance would not maintain hoistway doors. He cannot recall ever being told that the elevator herein required service in 2003 or through February 6, 2004.

Goldman, 41-45, Midboro, and Winoker submit unsworn and uncertified copies of Alliance's maintenance records for the elevator herein. Said records dating back to June 16, 2003, do not evidence any repairs to the 4th floor hoistway door of the elevator herein and do indicate that the elevator herein had regular maintenance performed upon it by Reinert, on February 2, and February 4, 2004.

Goldman, 41-45, Midboro, and Winoker submit a portion of Thomas Davies' (Davies) deposition transcript, who testified, in pertinent part, as follows. In 2004, Davies was employed by the New York City Department of Buildings as elevator inspector in charge of accident investigations. Part of his duties entailed the investigation of elevator accidents. To that end, Davies would interview people, investigate the scene and draw conclusions as to the cause of the [*9]accident. On February 6, 2004, he and James Miller (Miller), deputy director of the elevator division, reported to the premises herein after being called regarding an accident involving the freight elevator. He investigated the accident herein and prepared a report in the ordinary course of business. Upon arrival at the location herein he interviewed two police officers, West and Moran and also interviewed Louallen. He was informed that two people had fallen down the elevator shaft while fighting. He also noted that the hoistway door on the 4th floor had been removed by the fire department. With regard to the freight elevator herein, the same was 100 years old and had manual doors. Said doors were double doors, with one door that slid open and another which could be swung open when the load was wider than the sliding door could accommodate. The swinging doors were attached by hinges. Davies inspected the 4th floor hoistway door and noted that the guide which was designed to prevent the door from moving into the shaft was bent. As such, Davies concluded that said guide was bent when a large amount of horizontal force was exerted against it thereby causing the door to jump the guide and into the shaft. Davies inspected the remainder of the elevator, finding that the interlock was functional, and other problems with the same. In particular he noted stop bolts that were not engaged in some of the hoistway doors, pipes in the hoistway, elevator machine in the pit without a covering, rusted cables, and three inches of water in the pit. He also noted that the 12th floor hoistway door was loose allowing the door to move four inches into the hoistway. Davies concluded that the elevator was not being maintained. Davies issued violations and a cease use order based on what he saw during his investigation. With regard to the stop bolts not being engaged, Davies stated that said problem would not have prevented the hoistway doors from swinging into the shaft but would instead allow said doors to swing into the hallway.

Goldman, 41-45, Midboro, and Winoker submit a copy of douglas E. Smith's (Smith) deposition transcript, wherein he testified, in pertinent part, as follows. Smith is chief inspector with the New York City Department of Buildings. He describes reporting to the scene of the accident herein on February 6, 2004, after being informed by Davies of the same. Upon arrival at the scene Smith saw Davies and Miller. Smith noted that the freight elevator car was parked in the lobby and that the back wall had been peeled back for extraction. He reported to the 4th floor were he observed that the bottom of the hoistway door was off its guide and hanging into the shaft. With regard to this elevator, the same had a U-shaped guide that prevented the hoistway doors from entering the shaft. A mechanical interlock prevented the door from sliding open. This particular elevator was built in 1920 or 1940 and the same, pursuant to code, was to have hoistway doors that could withstand 250 pounds of force per four inch square. The code changed the specification in 2000, mandating that hoistway doors withstand 1000 pounds of force per four inch square. However, since the code that governs is the one in effect at the time of installation, said code would not apply to this particular elevator. Violations were issued, including that all hoistway doors be replaced. Such mandate and violation were a result of the accident and could not have been issued but for the accident. Elevators built prior to 1965 were not required to abide by the 1996, 2000, or 2005 code regulations.

Goldman, 41-45, Midboro, and Winoker submit three affidavits from Patrick McPartland (McPartland), who states in pertinent part as follows. McPartland is a professional engineer and a certified elevator inspector. After reviewing the evidence in the instant action, examining the instant elevator, and based upon his experience, he makes several conclusions. He describes the elevator herein as being installed prior to World War II and being a manual elevator. The [*10]elevator has two manual doors, one which slides open and one which swings out into the hallway. The swinging door is prevented from swinging into the hallway by bolts and the sliding door is prevented from swinging into the shaft by a U channel. Based on the age of the elevator, the applicable building code was the 1936 building code which was in effect until 1968. Said code, mandated the elevator door withstand 75 pounds of force and did not mandate anything regarding the types, sizes or number of guides or channels on the bottom of elevator doors. Recent codes do not apply to an elevator of this age. McPartland concludes that the damage to the elevator herein, particularly the damage to the U channel was caused by forced applied to the door and channel in excess of 250 pounds. Said force and damage was caused by the accident herein and could not have existed prior to the accident herein, since operation of the elevator with the damaged U channel would not have been possible. Prior to the accident herein, based upon inspections and observations, there was no damage to the fourth floor hoistway doors and the parts associated therewith.

In opposition to Goldman, 41-45, Midboro and Winoker s motion plaintiff submits a copy of his deposition transcript, submitted by Goldman, 41-45, Midboro, and Winoker and already discussed above. Plaintiff submits a copy of the violation issued on February 6, 2004, submitted by Goldman, 41-45, Midboro, and Winoker and already discussed above, a copy of Davies' report for the accident herein and his deposition transcript, submitted by Goldman, 41-45, Midboro, and Winoker and already discussed above. Plaintiff submits a copy of the maintenance history for the elevator herein, submitted by Goldman, 41-45, Midboro, and Winoker and already discussed above. Plaintiff submits a copy of Reinert's deposition transcript and Smith's deposition transcript, submitted by Goldman, 41-45, Midboro, and Winoker and already discussed above. Plaintiff submits a copy of the Department of Building's documents for the elevator herein, submitted by Goldman, 41-45, Midboro, and Winoker and already discussed above.

Plaintiff submits a copy of Tony Okoduwa's (Okoduwa) deposition transcript, wherein he testified, in pertinent part, as follows. On the date herein he was with plaintiff within the premises herein buying DVDs. They were in the room where Mr. Ba sold CDs and DVDs. Ba had gone to lunch and had left plaintiff and Okoduwa in the room. Fofana knocked seeking entry into the room to buy DVDs. Plaintiff answered the door, refusing to let Fofana enter. Okoduwa stated that he knew Fofana and that plaintiff should let him in the room. Plaintiff stepped into the hallway and Fofana backed up, coming into contact with the elevator door directly across from the room herein. The door to the elevator suddenly opened into the elevator shaft and Fofana, falling inside the shaft grabbed plaintiff's shirt, pulling him down the elevator shaft.

Plaintiff submits an affidavit from Patrick A. Carrajat (Carrajat), wherein he states in pertinent part as follows. Carrajat is an elevator consultant with 45 years of experience in the elevator industry. After reviewing the evidence in the instant action, documents and testimony, examining the instant elevator in June 2005, and based upon his experience, he is able to makes several conclusions. He describes the elevator herein as being installed in 1920 and being a manual elevator. The elevator has two manual doors, one which slides open and one which swings out into the hallway. The swinging door can be opened by removing stop bolts at the bottom and top of the door.

Based upon his examination of the elevator in June 2005, and the Davies' accident report, [*11]Carrajat concludes that the 4th floor hoistway door was defective on the date of the accident herein. Based on the same he concludes that Alliance, who was on site several days prior to the accident herein should have noticed the defective conditions with respect to the 4th floor hoistway doors, namely that they were loose and unsecured. Based on the fact that the elevator cab door affords a full view of rust, debris, and deterioration observed by Carrajat during his examination of the subject elevator in 2005, Carrajat concludes that Goldman, 41-45, Midboro and Winoker should have had notice that the elevator was in an advance state of disrepair. Based on violations issued to the elevator herein prior to the accident herein, all defendants should have had prior notice of the defective condition with the 4th floor hoistway doors. Based on violations issued to the elevator herein after and on the date herein, defendants should have had notice had notice of the defect with regard to the 4th floor elevator hoistway door. The failure to perform the mandated five year test on the elevator herein as well as uncovered shaftway windows constitute violations of the Building Code. Annexed to Carrajat's affidavit are 11 unsworn and uncertified photographs of the elevator herein.

In partial opposition to Goldman, 41-45, Midboro and Winoker's motion and in support of its motion, Alliance submits an affidavit from Robert Brownrigg (Brownrigg), who states, in pertinent part, as follows. Browntigg is employed by Alliance as service manager. His duties entail overseeing supervisors and providing customer service. A review of the work history for the elevator herein evidences that regular maintenance was performed by Alliance on February 2, 2004 and February 4, 2004. In September 2003, a repair to the car gate was undertaken because the same was hit by something.

Allaince submits an affidavit from Davies, wherein he states, in pertinent part as follows. Upon reporting to the location herein on the date herein, his examination of the guide at the bottom of the elevator door did not reveal that the same was rusted or deteriorated. The same had some discoloration, which was caused by the door traveling through the guide.

Alliance submits a host of other evidence not pertinent to the Court's decision. In opposition to Alliance's motion plaintiff, Goldman, 41-45, Midboro and Winoker submit virtually the very same evidence submitted by Goldman, 41-45, Midboro and Winoker in support of its motion and by plaintiff in opposition to the same. To the extent that Alliance, Goldman, 41-45, Midboro and Winoker, and plaintiff submit additional evidence in relation to Alliance's motion, said evidence was reviewed and found not to be pertinent to the issue of prior notice, the grounds for the Court's decision.

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. [*12]Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993).

Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. v. Habeeb, 248 AD2d 50 (1st Dept. 1997).

It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).

Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Thus, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor & Company, 31 NY2d 307 (1972). In Phillips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses' testimony and that witnesses' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d [*13]776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra ).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).

A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano, 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).

The Law of Premises Liability and Common Law Negligence

Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).

The common law dictates that a landowner is duty bound to maintain his or her property in a reasonably safe condition. Basso v. Miller, 40 NY2d 253 (1976). Logically, the law dictates that reasonable care be utilized in the maintenance of the property, taking into account all circumstances such as the likelihood of injuries to others, the seriousness of the injury, and the burden involved in avoiding the risk. Id. This duty also obligates a landowner to warn against dangerous conditions, existing on his land, known or reasonably ascertainable by him through the use of reasonable and ordinary care. Cupo v. Karfunkel, 1 AD3d (2nd Dept. 2003). No duty to warn exists, however, if the dangerous condition complained of is open and obvious and reasonably discernible through the use of one's own senses. Id.; Orlando v. Audax Construction Corp., 14 AD3d 500 (2nd Dept. 2005); Reuscher v. Pergament Home Centers, Inc., 247 AD2d 603 (2nd Dept. 1998); Jackson v. Supermarkets General Corporation, 214 AD2d 650 (2nd Dept. 1995).

Premises liability is by no means predicated solely on ownership. Liability for a [*14]dangerous condition on or within a property, is instead predicated upon occupancy, ownership, control or special use of the premises at issue. Balsam v. Delma Engineering Corporation, 139 AD2d 292 (1st Dept. 1998); Valmon v. 4M & M Corporation, 291 AD2d 343 (1st Dept. 2002); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Millman v. CitiBank, N.A., 216 A.D.D2d (2nd Dept. 1995); Bruhns v. Antonelli, 255 AD2d 478 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996). Additionally, it is well established that no liability will be found absent proof that a defendant actually created the dangerous condition or alternatively, had actual or constructive notice of the same. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994); Bogart v. F.W. Woolworth Compnay, 24 NY2d 936 (1969); Armstrong v. Ogden Allied Facility Management Corporation, 281 AD2d 317 (1st Dept. 2001); Wasserstrom v. New York City Transit Authority, 267 AD2d 36 (1st Dept. 1999); Allen v. Pearson Publishing, 256 AD2d 528 (2nd Dept. 1998); Kraemer v. K-Mart Corporation, 226 AD2d 590 (2nd Dept. 1996).

While it is well settled that liability for a dangerous condition does not extend to a prior owner, since as described above, liability os premised upon ownership, use or control, there is a narrow exception which exposes a prior owner to premises liability. Liability upon a prior owner may be imposed when a dangerous condition existed at the time real property was conveyed and where the new owner has not had reasonable time to discover and remedy said condition. Bittrolff v. Ho's Development Corp., 77 NY2d 896 (1991); Armstrong v. Ogden Allied Management Corporation, 281 AD2d 317 (1st Dept. 2001); Farragher v. City of New York, 26 AD2d 494 (1st Dept 1966). Liability however is premised upon establishment that a dangerous condition existed and upon notice that the prior owner had notice of the same. Bittrolff v. Ho's Development Corp., 77 NY2d 896 (1991); Armstrong v. Ogden Allied Management Corporation, 281 AD2d 317 (1st Dept. 2001). A prior owner of real property will also be held liable for affirmative acts of negligence in the design and construction of appurtenances upon real property. Trombetta v. 775 Park Avenue, Inc., 262 AD2d 147 (1st Dept. 1999).

A defendant is charged with having constructive notice of a defective condition when said condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy the same. Gordon v. American Museum of Natural History, 67 NY2d 836 (1986). The notice required must be more than general notice of any defective condition. Id.; Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). The law requires notice of the specific condition alleged at the specific location alleged. Id. A general awareness that a dangerous condition may exist, is insufficient to constitute notice of a particular condition alleged to have caused an accident. Piacquadio v. Recine Realty Corp., 84 NY2d 967 (1994). Instead, liability can only be predicated on defendant's failure to remedy a dangerous condition after actual or constructive notice of the condition. Id.

It is axiomatic that before negligence can be found it must be established that the accident causing instrumentality constitutes a dangerous condition, defect, or trap. Crawford v. Pick Quick Foods, Inc., 300 AD2d 431 (2nd Dept. 2002); Garry v. Rockville Centre Union Free School District, 272 AD2d 437 (2nd Dept. 2000); Reynolds v. Reynolds, 245 AD2d 498 (2nd Dept. 1997).

Elevator Maintenance [*15]

It is well settled that Multiple Dwelling Law §78 imposes a nondelegable duty upon the owner of a multiple dwelling to keep and maintain the elevators therein in a reasonably safe condition. Mas v. Two Bridges Associates, 75 NY2d 680 (1990); Bonifacio v. 910-930 Southern Boulevard, LLC, 295 AD2d 86 (1st Dept. 2002); Wagner v. Grinell Housing Development Fund Corpration, 260 AD2d 265 (1st Dept. 1999). Like any other defect within a premises, liability for an elevator defect, whether it be imposed upon the owner, the management company, or a company contracted to maintain the elevator, is premised upon prior notice of the defect, either actual or constructive. Rogers v. Dorchester Associates, 32 NY2d 553 (1973); Santoni v. Bertelsman Property, Inc., 21 AD3d 712 (1st Dept. 2005); Clark v. New York City Housing Authority, 7 AD3d 440 (1st Dept. 2004); Camaj v. East 52nd Partners, 215 AD2d 150 (1st Dept. 1995); Langner v. Jessup Holding Inc., 10 AD2d 1 (1st Dept. 1960); Tashjian v. Strong & Associates, 255 AD2d 907 (3rd Dept. 907).

The Court of Appeals has also allowed liability to attach for an elevator accident when there is circumstantial evidence to infer negligence with regard to elevator maintenance. Rogers v. Dorchester Associates, 32 NY2d 553 (1973). However, like the doctrine of res ipsa loquitur, there must be evidence of exclusive control and evidence of prior malfunctions like the one giving rise to the accident alleged. Id. Along that same vein, negligence for failure to maintain an elevator can also be established by the doctrine of res ipsa loquitur. The doctrine permits an inference of negligence to be drawn when the instrumentality causing injury to the plaintiff is within a defendant's exclusive possession or control and the accident alleged is not one which ordinarily occurs in the absence of negligence. Flebot v. New York Times Company, 32 NY2d 486 (1973); Abbott v. Page Airways, Inc., 23 NY2d 502 (1969). The doctrine is applicable if (1) the event is one not ordinarily occurring without negligence; (2) the accident causing instrumentality in the exclusive control of the defendant; and (3) the accident was not due to voluntary action or contribution on the part of the plaintiff. Corcoran v. Banner Super Market, Inc., 19 NY2d 425 (1967); Cacciolo v. Port Authority of New York and New Jersy, 186 AD2d 528 (2nd Dept. 1992). Additionally, the doctrine is only applicable where the evidence is not subject to interpretation making it equally as likely that the accident occurred in the absence of a wrongful act. Flebot v. New York Times Company, 32 NY2d 486 (1973); Cacciolo v. Port Authority of New York and New Jersey, 186 AD2d 528 (2nd Dept. 1992). The doctrine is also not applicable where the circumstantial evidence is not the best evidence available. Id.

Expert Opinion

It is well settled that opinion testimony "must be based on facts in the record or personally known to the witness. He cannot reach his conclusion by assuming material facts not supported by the evidence." Felice Cassano v. Albin R. Hagstrom, 5 NY2d 643, 646 (1959); See also, In Matter of Aetna Casualty & Surety Company v. Angelina Barile, 86 AD2d 362 (1st Dept. 1982); Marisela Gomez v. New York City Housing Authority, (1st Dept. 1995); Mary Quinn v. Artcraft Construction, Inc., 203 AD2d 444 (2nd Dept. 1994). Expert opinions which are speculative, contingent, or merely possible are devoid of probative value and are thus inadmissable. People of the State of New York v. Terrance Robinson, 174 AD2d 998 (4th Dept. 1991).

With respect to summary judgment and motions seeking said relief, it is well settled that an expert's affidavit containing bare allegations and conclusions, which are factually [*16]unsupported by the evidence and not personally known to the expert, will not raise a triable issue of fact sufficient to defeat a motion for summary judgment. Vincent Amatulli, Jr. v. Delhi Construction Corporation, 77 NY2d 525 (1991); Alice Wright v. New York City Housing Authority, 208 AD2d 327 (1st Dept. 1995).

Discussion

Goldman, 41-45, Midboro and Winoker's motion seeking summary judgment in the instant action is hereby granted. With the evidence submitted, Goldman, 41-45, Midboro and Winoker have demonstrated prima facie entitlement to summary judgment. In particular, Goldman, 41-45, Midboro and Winoker's evidence demonstrates that there was absolutely no prior notice that the 4th floor hoistway doors were defective prior to the accident herein. It is well settled that while an owner or manager of real property has a non-delegable duty to maintain his property in a reasonably safe condition, the failure to do gives rise to liability only if the condition alleged was created by the owner or manager of said property or if the same had prior notice of the condition alleged.

In this case, on the issue of notice, Goldman, 41-45, Midboro and Winoker submit Louallen's testimony, the superintendent for the premises herein and someone who operated the elevator herein on a regular basis. Louallen stated that prior to the accident herein he had not received any complaints regarding problems with the elevator nor had he noticed any defects with regard to the 4th floor hoistway doors. Louallen also testified that after the accident herein, he noted that a bracket near the bottom of the door was bent and that the locking bolt had pulled loose. Louallen noted that the bracket and bolt were not that way prior to the accident herein and that had they been the operation of the freight elevator would have been noticeably affected. Goldman, 41-45, Midboro and Winoker submit Dixon's testimony, the elevator operator at the premises herein, who similarly stated that prior to the accident herein, he operated the elevator herein daily and never noted any issues with the same nor any defects with regard to the hoistway doors. Goldman, 41-45, Midboro and Winoker submit a copy of Krussmann's deposition testimony, an elevator inspector, who testified that he performed a Local Law 1081 inspection of the elevator herein in 2003. Said inspection entailed a complete inspection of the elevator herein, including all hoistway doors. While Krussmann stated that the elevator herein did not pass inspection, the reason for the failure was a failure to have a five year test performed upon the elevator. Said test however was identical to the inspection he performed by Krussmann with the exception of one test. Said test entailed putting weights in the elevator to test its capacity. Had Krussmann found any defects with the hoistway doors during his inspection, he would have noted the same on his report, which Krussmann stated contained no such indication. When inspecting the hoistway doors, Krussmann would inspect the guides that the doors rode in to ensure that the same were not worn. He would ensure that the door was not bouncing out of the track or guide. The door interlock would also be checked, which is the part that ensures that the elevator is not operated with the door open. Lastly, Goldman, 41-45, Midboro and Winoker submit copies of violations issued for the subject elevator. Violation number PVT-79249 was issued on September 4, 2003 for the failure to display a tag on the elevator. Violation PVT-40990 was issued on August 1, 2001, and was for damaged hoistway door gibs. Violation 38144936R was issued February 6, 2004 and was issued for a host of reasons, including defective hoistway doors. With regard to the first violation, Krussmann explained that same is [*17]wholly unrelated to the hoistway doors. With regard to the second violation, there is no indication, which hoistway door gibs were defective, let alone that the 4th floor hoistway door gibs were defective. With regard to the last violation, Smith testified that the same was issued after the accident herein and was only issued due to the accident herein.

Based on the foregoing, Goldman, 41-45, Midboro and Winoker have demonstrated that prior to the accident herein, the 4th floor hoistway doors and their accompanying parts, particularly, the U-channel, were not defective and were fully functional prior to the accident herein. With Louallen's testimony, with regard to the functionality of the elevator, the lack of any complaints, his failure to notice any defects, and that had the guide herein been in a bent condition prior to the accident the elevator would have been inoperable, moving defendants have established that the hoistway doors were not defective and that hey had no notice of any defects. The same is established with Krussmann's testimony, since he specifically inspected the hoistway doors and guides prior to the accident herein and did not find them to be defective. Dixon's testimony similarly establishes the lack of any damage to the hoistway doors prior to the accident and the full functionality of said doors. With respect to the prior violations issued for the elevator, the same do not constitute notice of the condition herein inasmuch as what is required is notice of the actual condition which caused the accident. In this case, contrary to the legion of causal factors alleged within plaintiff's bill of particulars, the condition which caused the accident, as borne by the evidence was a defect if any with the 4th floor hoistway doors and its accompanying and related parts. As such, only violations with regard to said condition are sufficient to establish notice. In this case, none of the violations issued are for violations for conditions related to the 4th floor hoistway doors. As such, moving defendants have demonstrated a lack of any actual or constructive notice with regard to any defective conditions of the 4th floor hoistway doors and have thus demonstrated prima facie entitlement to summary judgment.

With the exception of Carrajat's affidavit, plaintiff submits the very same evidence submitted by Goldman, 41-45, Midboro and Winoker. Said evidence as already discussed mandates judgment for the moving defendants since it establishes a lack of notice with respect to any defective condition with the 4th floor hoistway doors and its accompanying parts. Carrajat's affidavit however, fails to raise an issue of fact on the issue of prior notice, sufficient to preclude summary judgment, since his opinion of prior notice is not supported by the facts in the records.

On the issue of notice, Carrajat stated the following. Based upon his examination of the elevator in June 2005, and the Davies' accident report, Carrajat concludes that the 4th floor hoistway door was defective and on the date of the accident herein. Based on the same he concludes that Alliance, who was on site several days prior to the accident herein should have noticed the defective conditions with respect to the 4th floor hoistway doors, namely that they were loose and unsecured. Based on the fact that the elevator cab door affords a full view of rust, debris, and deterioration observed by Carrajat during his examination of the subject elevator in 2005, Carrajat concludes that Goldman, 41-45, Midboro and Winoker should have had notice that the elevator was in an advance state of disrepair. Based on violations issued to the elevator herein prior to the accident herein, all defendants should have had prior notice of the defective condition with the 4th floor hoistway doors. Based on violations issued to the elevator herein after and on the date herein, defendants should have had notice of the defect with regard to the 4th floor elevator hoistway door. The failure to perform the mandated five year test on the [*18]elevator herein as well as uncovered shaftway windows constitute violations of the Building Code. Carrajat stated that based upon his experience, all evidence submitted, Davies' accident report and Carrajat's examination of the elevator herein more than a year after the accident, he concludes that the 4th floor hoistway door was defective and in an advance state of disrepair on the date of the accident herein. Carrajat concludes that defendants should have had notice of the same for several reasons, namely, the rust on the U-channel and the violations issued to the elevator prior and subsequent to the accident herein. According to Carrajat, prior inspections should have revealed that the hoistway doors were loose and unsecured. Moreover, the fact that the elevator cab affords full view of the rust, debris, and deterioration found by Carrajat in 2005, means that defendants should have discovered the same prior to the accident herein. Carrajat also concludes that the elevator herein was not properly maintained and that such lack of maintenance was the proximate cause of plaintiff's accident. Lastly, Carrajat avers that defendants should have known that said elevator was not properly maintained by virtue of the violations issued by the Department of Buildings.

At the outset, it must be noted that Carrajat's inspection of the elevator herein took place over a year after the accident and as such his findings on that date are irrelevant as to the condition of the elevator on the date of the accident or at any time prior to the same. To that end any opinion with regard to prior notice based on his post accident examination must be discounted. Second, to the extent that Carrajat relies on violations issued to the elevator in the date of the accident herein, as a basis for imputing prior notice, his opinion must be discounted, since Smith made it clear that all violations issued on the date of the accident were for conditions resulting from the accident. To the extent that Carrajat relies upon prior violations to impute prior notice, his opinion must be discounted, since there were no prior violations issued for the 4th floor hoistway doors and since it was clear that the violation for the failure to perform a five year test, was completely unrelated to the condition of the 4th floor hoistway door. Lastly, to the extent that Carrajat's opinion with regard to prior notice is based on observations of rust to the U-channel, the same must be discounted, since it is clear that said condition did not exist on the date of the accident herein , let alone prior thereto. Davies, in his affidavit stated that when he examined the U-channel on the date of the accident herein, he noticed no rust or deterioration on the same.

Accordingly, Carrajat's opinion fails to raise an issue of fact sufficient to preclude summary judgment, on the issue of notice, for the reasons just mentioned. Moreover, the only relevant issue is prior notice regarding defects of the 4th floor hoistway doors, and in particular the part that purportedly failed, namely the U-channel. As such, to the extent that his affidavit discusses many issues with the instant elevator unrelated to the 4th floor hoistway doors and the relevant parts thereto, said issues are irrelevant. Issues such as shaftway obstructions and shaft windows that did not comply with New York Building Code §27-329 are irrelevant and not pertinent to the issues of notice.

Based on the above, it is clear that Carrajat's opinion with regard to prior notice and purported defects related to the 4th floor hoistway doors, which allegedly pre-dated the accident herein, are not based upon facts in the record. None of the facts, based on all evidence submitted, support the existence of a prior defect with regard to the 4th floor hoistway doors or any prior notice of the same. In fact, the contrary is true, all facts in the record indicate that the elevator herein was used daily and that no defects were ever noted or reported with respect to the [*19]4th floor hoistway doors. The facts further indicate that the elevator was serviced and inspected on prior occasions, including days prior to the accident herein, and no defects related to the 4th floor doors were ever found. Lastly, the facts evidence that none of the prior violations issued were related to the 4th floor hoistway doors.

Based on the foregoing, plaintiff fails to raise an issue of fact on the issue of notice sufficient to preclude summary judgment as such, Goldman, 41-45, Midboro and Winoker's motion for summary judgment is hereby granted and the remainder of their motion is denied as moot. For the very same reasons just stated, Alliance's motion for summary judgment is hereby granted.

It bears mentioning, that the doctrine of res ipsa loquitur, which plaintiff does not contend even applies, is inapplicable to the facts herein inasmuch as the evidence demonstrates that the elevator and the hoistway doors were not in the exclusive control of any one of the moving defendants. It is clear that the elevator herein was serviced by Alliance and that as such, they had control of the elevator herein and the hoistway doors at issue. The elevator herein was also operated by Midboro employees, so that they too had control of the same. Moreover, the doctrine is not applicable inasmuch as under any version of the facts, the accident herein occurred in the course of an altercation when either Fofana hit the door or was thrust against the same by the plaintiff herein. As such it is equally as likely that the accident occurred in the absence of a wrongful act on behalf of the defendants, thereby rendering the doctrine inapplicable.

Plaintiff argues that the circumstantial evidence would support a finding of liability against the defendants and relies upon Rogers v. Dorchester Associates, 32 NY2d 553 (1973). However, in that case circumstantial evidence was deemed appropriate because there was exclusive control and evidence of prior malfunctions like the one giving rise to the accident alleged therein. In this case there is evidence that none of the defendants exercised exclusive control of the elevator herein and there is absolutely no notice of any prior malfunctions like the one alleged. It is hereby

ORDERED that the complaint and all cross-claims asserted against Goldman, 41-45, Midboro and Winoker be hereby dismissed with prejudice. It is further

ORDERED that the complaint and all cross-claims asserted against Alliance be hereby dismissed with prejudice. It is further

ORDERED that Goldman, 41-45, Midboro and Winoker serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated :May 7, 2007

Bronx, New York

_____________________________Nelson S. Roman, J.S.C.