Plaintiff John Episcopio ("Plaintiff") commenced this action for injuries he allegedly sustained while operating an elevator. Before the court are three motions under which the defendants separately move for summary judgment to dismiss the Complaint and for relief on their cross-claims against each other. The motions are decided as follows.

Plaintiff alleges that he was injured while operating freight elevator No.20 (the "Elevator") in the commercial building [*2]located at and known as One Park Avenue in Manhattan (the "Building"). At the time of Plaintiff's incident, the Building was owned by defendant One Park Avenue Tenant, LLC s/h/a One Park Avenue, LP ("One Park Ave") and managed by Plaintiff's employer, defendant SL Green Management Corp. s/h/a S.L. Green Management, LLC ("SL Green"). Defendant First Quality Maintenance, L.P. ("First Quality") performed nightly office cleaning at the Building and "consultative" cleaning services during the day. Defendant Alliance Elevator Company s/h/a Unitec Elevator Co., Inc. f/k/a Archer Elevator Co., Inc. ("Alliance") serviced the Elevator and a number of other elevators in the Building on a monthly basis.

Plaintiff worked as a day porter and relief freight elevator operator at the Building. As such, he operated the Elevator approximately twice a week when its regularly assigned operator took scheduled breaks. Plaintiff had worked in this capacity since 1987 and had received training in the Elevator's operation from a veteran freight elevator operator.

The Elevator is over 60 years old and is manually operated. That is, an operator uses a car switch to move the Elevator between floors, and opens and closes the Elevator's cab gate (interior gate) and the hoistway door (exterior door) by manually sliding them along a track. The hoistway door on each floor is opened and closed from inside the Elevator by means of a straight arm closer. The straight arm closer (also called a broken arm closer or door release arm) is a simple fulcrum device consisting of two pieces of flat steel bars connected by a hinge or pinch point. The pinch point allows the two sections of the straight arm closer to collapse onto each other as the hoistway door's three door panels slide into each other when the door is opened.

The daytime "consultive" cleaning services performed by First Quality were pursuant to a Consulting Agreement with SL Green dated August 1, 1998. The Consulting Agreement does not cover the operation, inspection, maintenance or repair of the Elevator. The Agreement has a mutual indemnification provision requiring that each party hold the other "harmless from and against any and all liabilities, claims, losses, lawsuits, judgments and expenses, including, but not limited to reasonable attorneys' fees, arising out of or in connection with any act or omission" of that party. It also requires that each party name the other as an additional insured on insurance policies.

Alliance's monthly service of the Elevator was performed pursuant to a maintenance contract (the "Maintenance Contract"). The Maintenance Contract does not mention servicing the Elevator's doors or component parts, and does not have provisions for indemnification or for insuring One Park Ave or SL Green. Notwithstanding the limited provisions of the Maintenance Contract, however, Alliance's records reflect that it routinely performed inspections, repairs and maintenance of the Elevator. Anthony Trombadore ("Trombadore"), a superintendent at Alliance, states that "[i]t is common practice in the elevator trade that the freight elevator hoistway doors and their component parts are not covered under maintenance contracts because they are subject to abuse, misuse and vandalism," and that Alliance would only make repairs to freight elevator doors as separate billable jobs following customer complaints.

Plaintiff contends that on April 9, 2004, at approximately 9:30 AM, he was operating the Elevator when the hoistway door on the platform level became "stiff" and difficult to close; as he attempted to use both hands to close it, his left hand index finger became caught between the two bars of the Elevator's straight [*3]arm closer. Plaintiff claims that the Elevator's hoistway door was "partially misaligned" and that for approximately one year before his accident he had found the Elevator door to be stiff on other occasions. After closing the door, Plaintiff realized he had cut his left index finger. He reported the incident to the Building's assistant property manager, who encouraged him to go to the emergency room. Plaintiff later filed a claim for Worker's Compensation on a form dated April 30, 2004, listing his employer as "SL GREEN & CO/FIRST QUALITY."

The Elevator was not taken out of service, and its regularly assigned operator resumed operation shortly thereafter. The regularly assigned operator and Plaintiff both state that they did not observe any debris blocking the closing mechanism on the hoistway door. The Building's elevator consultants, Boca Group International, were called and determined that the door and straight arm closer were functioning normally. Approximately one week later, a mechanic at Alliance learned of Plaintiff's incident through a Building employee. Trombadore states that based on his review of the work history report, the Elevator was receiving regular maintenance and received no service calls near the time of Plaintiff's incident.

In or around March 2005, Plaintiff filed a Summons and Complaint asserting a claim in common law negligence against One Park Ave. In or around October 2005, Plaintiff filed an Amended Summons and Supplemental Complaint adding the other named defendants. SL Green and One Park Ave answered on or around December 27, 2005, and asserted cross-claims against Alliance and First Quality for contribution, common law indemnity, contractual indemnity and breach of contract for failure to procure insurance. On or around February 7, 2006, First Quality answered and asserted cross-claims against SL Green, One Park Ave and Alliance for contribution, common law indemnity and contractual indemnity. On or about March 16, 2006, Alliance answered and asserted cross-claims against SL Green, One Park Ave and First Quality for contribution and common law indemnity.

Under Motion Sequence 003, Alliance moves for summary judgment dismissing the Complaint and all cross-claims against it. Under Motion Sequence 004, First Quality moves for summary judgment dismissing the Complaint and all cross-claims against it, and for summary judgment on its cross-claim for contractual indemnification against SL Green. Under Motion Sequence 005, One Park Ave and SL Green move for summary judgment dismissing the Complaint and all cross-claims against them, and leave to amend SL Green's answer to assert a Workers' Compensation defense. Plaintiff opposes all motions.

During oral argument on August 27, 2007, I granted SL Green's motion to the extent of allowing it to amend its answer, and accordingly, as Plaintiff's employer, to dismiss the Complaint as against it (Workers' Compensation Law �� 11 and 29[6]), but reserved decision on the remaining issues, which are decided herein.

Plaintiff argues that summary judgment should be denied because questions of fact exist with respect to: The cause of the accident; whether Alliance adequately inspected, maintained and repaired the Elevator; whether the defendants had actual and/or constructive knowledge of the Elevator's alleged malfunction based on similar problems within a year of the incident; whether One Park Ave [*4]breached its duty as owner to provide safe premises; and whether First Quality properly trained Plaintiff.

"To establish a prima facie case of negligence, a plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury.'" Boltax v. Joy Day Camp, 67 NY2d 617, 619 (1986) (internal citation omitted).However, "courts have repeatedly held that where the acts of the injured party or a third party intervene between the defendant's conduct and the plaintiff's injury and the intervening act is independent of the defendant's conduct, the causal connection is broken." Lee v. New York City Hous. Auth., 25 AD3d 214, 220 (1st Dep't 2005).

Accepting as true Plaintiff's contentions that the Elevator's hoistway door was "partially misaligned," that this defect caused the Elevator's hoistway door to become "stiff" and difficult to close, and that this condition existed for some time, Plaintiff still has no claim against defendants. At best, defendants "merely furnished the condition or occasion for the occurrence of the event." Sheehan v. City of New York, 40 NY2d 496 (1976). Plaintiff's actions were the proximate cause of his injury. Placing his left hand in, on or near the pinch point of the straight arm closer was a superceding intervening cause, which breaks the nexus between any alleged negligent acts of the defendants and his injury. Cf. Montgomery v. Federal Express Corp., 4 NY3d 805 (2005)(barring recovery under labor law � 240(1) to a plaintiff who was injured when he chose to use an inverted bucket to climb a wall and jump down rather than to get a ladder).

There is thus no liability of One Park Ave for its alleged failure to provide a safe working environment, or against Alliance or First Quality for their alleged failure to adequately maintain and/or clean the Elevator. The fact that Plaintiff operated the Elevator for seventeen years without incident belies any argument that he was not trained properly. Since "summary judgment is appropriate where the record eliminates any legal cause other than the reckless conduct of the plaintiff'" (Kriz v. Schumu, 75 NY2d 25, 35 [1989] [internal citation omitted]), all defendants are entitled to summary judgment dismissing the Complaint.

There being no connection between the negligence of any defendant and Plaintiff's injury, all defendants' cross-claims for common law indemnity and contribution must also be dismissed. See Linares v. United Mgt. Corp., 16 AD3d 382 (2nd Dep't 2005).

With respect to First Quality's remaining cross-claims for contractual indemnity, the Consulting Agreement does not require SL Green to indemnify First Quality under these circumstances. Moreover, there is no contract between First Quality and either Alliance or One Park Ave, and no agreement exists which would otherwise require Alliance or One Park Ave to indemnify First Quality. Thus, First Quality's remaining cross-claims must be dismissed as to all defendants.

Similarly, One Park Ave and SL Green's remaining cross-claims for contractual indemnity and failure to name on insurance policy must also be dismissed at to both co-defendants. The Maintenance Contract does not require Alliance to indemnify or procure insurance for One Park Ave or SL Green, and the Consulting Agreement's provisions for First Quality to do so for SL Green are not triggered here.

Accordingly, it hereby is

ORDERED that [*5]Alliance's motion under Sequence 003 is granted; First Quality's motion under Sequence 004 is granted to the extent of dismissing the Complaint and all cross-claims against it, but denied to the extent of summary judgment on its cross-claim for contractual indemnity against SL Green; and One Park Ave and SL Green's motion under Sequence 005 is granted; and it further is

ORDERED that the Complaint and all cross-claims against all defendants are dismissed, with costs and disbursements to defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly.

Dated: November , 2007

ENTER:

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J.S.C.