[*2]Upon the notice of motion of defendant Broad Financial Center, LLC dated July 8, 2009 and the affirmation, affidavit and exhibits submitted therewith (Motion Sequence No.5); the affirmation in opposition of plaintiff dated October 1, 2009 and the affidavit and exhibits submitted therewith (Motion Sequence #5 and #6); the reply affirmation of defendant Broad Financial Center, LLC dated October 9, 2009 and the exhibits annexed thereto; the notice of motion of defendant Schindler Elevator Corporation dated July 20, 2009 (Motion Sequence #6); the affirmation in reply of defendant Schindler Elevator Corporation dated October 19, 2009 and the exhibits annexed thereto; and due deliberation; the court finds:

The motion of defendant Broad Financial Center, LLC ("Broad Financial") for summary judgment (Motion Sequence #5) and the motion of defendant Schindler Elevator Corporation ("Schindler") (Motion Sequence #6) for summary judgment are consolidated for decision herein, as both involve common questions of law and fact, and inasmuch as plaintiff submitted one opposition addressing both motions.

In this action to recover monetary damages for personal injuries allegedly sustained by plaintiff on July 25, 2003 after tripping and falling upon exiting elevator #5 because it had not leveled at the same height as the floor upon stopping, defendant building owner Broad Financial moves for summary judgment on the bases that it had no notice of the subject condition and that co-defendant Schindler was responsible for maintenance and repair of the subject elevator pursuant to the Preventive Maintenance Agreement between the two defendants. The agreement also serves as the basis for Broad Financial's motion for summary judgment on its cross-claims and dismissal of Schindler's cross-claims. Schindler moves for summary judgment as well, adopting Broad Financial's arguments with respect to notice. Schindler also moves to dismiss Broad Financial's cross-claims on the basis of the limitations of its obligations under the elevator maintenance agreement.

As to notice of the condition, the maintenance logs of the building and defendants' testimony demonstrated that there had been no prior complaints about elevator #5 failing to stop at floor height, nor had any such problem been reported or repaired. The only entry regarding such failure was recorded upon the happening of plaintiff's accident. Contrary to the strained interpretation of plaintiff, the log entry dated September 25, 2009 reading "same as 7/24/03 " clearly refers to elevator #6, which on neither day experienced a misleveling and which was not involved in plaintiff's accident.

Schindler presented the affidavit of an engineer who had reviewed Schindler's records, including records of regularly performed inspections and repair and maintenance records, and found no entries with regard to misleveling of elevator #5. These records indicate that when Schindler performed preventative maintenance, it would generate a "Service Operations Work Report (Preventive Maintenance)" and then when it responded to specific problems reported to it, it would generate a "Service Operations Work Report (Service Call)." There are no records of Service Call Work Reports regarding elevator #5 misleveling prior to the accident. Both defendants therefore presented sufficient competent evidence to establish a prima facie case of lack of actual or constructive notice of the condition alleged to have caused plaintiff's accident. See Narvaez v. New York City Hous. Auth., 62 AD3d 419, 878 N.Y.S.2d 724 (1st Dep't 2009).

In opposition, plaintiff presented the affidavit of an engineer who did not say that either defendant had any notice of a misleveling problem with the subject elevator, and who addressed [*3]the general overall condition of the elevator, given its maintenance history. Plaintiff's expert did not opine that any faulty condition previously reported and/or repaired would in any way contribute to or cause a misleveling condition, and, in any event, general awareness of dangerous conditions cannot form the basis of a claim of constructive notice of the particular condition alleged to have caused the accident. See Chianese v. Meier, 98 NY2d 270, 774 N.E.2d 722, 746 N.Y.S.2d 657 (2002); Gjonaj v. Otis El. Co., 38 AD3d 384, 832 N.Y.S.2d 189 (1st Dep't 2007).

Plaintiff's expert's affidavit ignored an elevator inspection conducted within one month prior to plaintiff's accident which yielded no violations. Also, plaintiff's expert's conclusion that the failure of a leveling device contact was the competent producing cause of the accident was erroneously premised on the report that Schindler generated when its technician responded to inspect and repair the elevator after plaintiff's accident. The expert, who claimed to have read all deposition transcripts, assumed that the technician's abbreviation of "LD" referred to "leveling device," when in fact the technician had testified that the contact failure found was related to the "level down relay," which is related to door closing and has nothing to do with leveling. While the expert concluded that proper maintenance of the leveling device contact would have prevented the mechanical failure and that failure of the leveling device contact was foreseeable in the absence of appropriate maintenance, the expert did not opine as to what appropriate maintenance consists of and therefore how it would have revealed the condition alleged to have caused the accident, nor that Schindler's maintenance fell below that standard. Finally, the expert's averments regarding plaintiff's lack of negligence and her reasonable expectations were gratuitous legal conclusions not within the expert's knowledge or scope of expertise.See Grullon v. City of New York, 297 AD2d 261, 747 N.Y.S.2d 426 (1st Dep't 2002).

Plaintiff has presented no evidence that the misleveling condition alleged had existed long enough to give defendants an opportunity to discover and remedy it. Nor has plaintiff presented any evidence that either defendant created the condition at issue. Plaintiff therefore failed to raise an issue of fact with respect to notice and causation. See Ianotta v. Tishman Speyer Props., Inc., 46 AD3d 297, 852 N.Y.S.2d 27 (1st Dep't 2007).

Schindler argues in opposition to Broad Financial's motion that it is possible that elevator components not covered by the Preventative Maintenance Agreement could have caused the misleveling which led to plaintiff's accident. Counsel's affirmation, however, is not admissible as evidence. See Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). This argument is furthermore speculative, which is insufficient to raise a triable issue of fact in any event. See Dixon v. Nur-Hom Realty Corp., 254 AD2d 66, 678 N.Y.S.2d 613 (1st Dep't 1998). This argument is furthermore in contravention of Schindler's own records, which diagnosed the condition as involving both a relay and a contact. Pursuant to the agreement between Broad Financial and Schindler, contacts and relays are clearly covered components of a traction elevator such as the one at issue. Regardless of whether or not additional uncovered components may have been involved in causing or contributing to the condition alleged to have caused plaintiff's accident, Schindler remains bound by the fact that the primary diagnosed components are covered under the agreement.

Plaintiff also relies on res ipsa loquitur in opposition to the motions. Even in the absence of a viable cause of action premised on notice of the condition, res ispa loquitur may operate to deprive a defendant of summary judgment. See Ianotta, supra. However, noting the important [*4]distinction between the cause of the allegedly dangerous condition and the cause of the accident itself, if plaintiff was in any way negligent herself, such negligence could not be attributable to the defendants, and the doctrine would not apply. See Courtney v. Gainsborough Studios, 186 A.D. 820, 174 N.Y.S. 855 (1st Dep't 1919). This would directly defeat the third prong of res ipsa loquitur, that the accident happen through no fault of the plaintiff. See Corcoran v. Banner Super Market, Inc., 19 NY2d 425, 227 N.E.2d 304, 280 N.Y.S.2d 385 (1967), citing Prosser, Torts § 39, at 218 (3d ed).

Here, there is testimony from plaintiff that she was not looking where she was going as she exited the elevator. Accordingly, even though the doctrine has been applied in cases involving the maintenance of elevators, see Kleinberg v. City of New York, 61 AD3d 436, 877 N.Y.S.2d 23 (1st Dep't 2009), and even though the doctrine has been applied where the mechanical components contributing to the accident are beyond the reach of an elevator passenger, see Ianotta, supra, it is not applicable here. By invoking the doctrine, plaintiff merely raises a question of fact as to plaintiff's contribution to the happening of the accident, precluding the application of res ipsa loquitur. See Cortes v. Central El., Inc., 45 AD3d 323, 845 N.Y.S.2d 259 (1st Dep't 2007); Miller v. Schindler Elevator Corp., 308 AD2d 312, 763 N.Y.S.2d 826 (1st Dep't 2003); Sookraj v. Schindler Elevator Corp., 279 AD2d 371, 724 N.Y.S.2d 579 (1st Dep't 2001).

Even though res ipsa loquitur does not apply, a discussion regarding exclusivity is relevant to Schindler's culpability, as "substantial control over maintenance of the elevator [is] sufficient to support an inference of negligence on [the part of the elevator maintenance contractor]." Owens v. Stevenson Commons Assoc., L.P., 64 AD3d 517, 517, 883 N.Y.S.2d 41, 42 (1st Dep't 2009). With respect to the exclusivity component of res ipsa loquitur, Broad Financial argues that Schindler retained exclusive control of the elevator by virtue of the Agreement, while Schindler argues that the fact that the Agreement did not cover various components of an elevator indicates shared control of the elevator. Plaintiff's expert engineer places the exclusivity of control with Schindler.

In the context of res ipsa loquitur, exclusivity is a relative concept. See Crawford v. City of New York, 53 AD3d 462, 863 N.Y.S.2d 11 (1st Dep't 2008). It requires neither sole physical access to the subject instrumentality, nor the elimination of any other possible cause of the accident. See id. Rather, "[i]t is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not' that the injury was caused by defendant's negligence." Kambat v. St. Francis Hosp., 89 NY2d 489, 494, 678 N.E.2d 456, 458, 655 N.Y.S.2d 844, 846 (1997). It is therefore necessary to examine the relationship between Broad Financial and Schindler created by the Agreement with respect to control of the elevator. See Hodges v. Royal Realty Corp., 42 AD3d 350, 839 N.Y.S.2d 499 (1st Dep't 2007).

The Agreement covered Schindler's maintenance of Broad Financial's existing equipment and the existing performance conditions, the performance of safety tests, and the periodic examination, lubrication, adjustment, repair and replacement of certain elevator components covered under the Agreement. Schindler was responsible to perform such work as required due to ordinary wear and tear of the covered elevator components in order to reduce wear and prolong the useful life of the elevators. Broad Financial was directed to inspect and observe the condition of the elevators, to promptly report to Schindler potentially hazardous conditions and [*5]malfunctions, to call Schindler for service as required, and to promptly authorize repairs outside the scope of the Agreement.

Broad Financial was forbidden from permitting any other person or entity from working on the elevators, and was bound to assign the Agreement to its successors. Broad Financial was also bound to prevent access to the elevators by any person or entity other than Schindler. Furthermore, despite the clause that Broad Financial retained its responsibilities as owner and/or manager of the elevators, the Agreement provided that any proprietary material, information, data or devices contained in the elevators, or any component or feature thereof, remained Schindler's property, including tools, devices, manuals, software, modems, source/access/object codes, passwords and remote monitoring equipment.

All work performed on the elevators, whether routine or emergent, was performed by Schindler, which inspected the elevators on a regular, approximately weekly basis. By virtue of the Agreement, Schindler reserved to itself the exclusive right to perform all work on the elevators, excluding even Broad Financial from performing any such work. This remains true even though the Agreement simultaneously limits its obligation to periodically examine, lubricate, adjust and repair or replace only to certain elevator components. In the Agreement, "Equipment" is not defined as categorically excluding non-covered components (see ¶ 6 of Terms and Conditions). The only description of "equipment" is the elevators themselves.

Nothing in the Agreement permitted Broad Financial to direct that repairs be made or to direct how the repairs were made; the Agreement merely obligated Broad Financial to communicate to Schindler any problems that it discovered. Under the circumstances, the relative degrees of control of Broad Financial and Schindler for the care and maintenance of the elevators lie in favor of the "exclusivity," for res ipsa loquitur purposes, of Schindler, see Hodges, supra, despite Broad Financial's nondelegable duty to maintain the premises in reasonably safe condition, see Fuller-Mosley v. Union Theol. Seminary, 10 AD3d 529, 782 N.Y.S.2d 16 (1st Dep't 2004). This exclusivity of possession continued during the time period during which plaintiff's accident occurred. See Karian v. G & L Realty, LLC, 32 AD3d 261, 820 N.Y.S.2d 231 (1st Dep't 2006). The evidence therefore permits an inference of negligence against Schindler. See Owens, supra; Rogers v. Dorchester Assocs., 32 NY2d 553, 300 N.E.2d 403, 347 N.Y.S.2d 22 (1973). The inference has not been refuted through any evidence that Schindler's inspections and maintenance should have uncovered the condition, particularly since the technician who had inspected and performed maintenance on the elevator in the months before the accident testified that maintenance of the contacts was crucial to the continued operation of an elevator. See Lawton v. Cuba Nat'l Bank, 21 NY2d 669, 234 N.E.2d 256, 287 N.Y.S.2d 95 (1967).

Accordingly, Broad Financial's motion for summary judgment dismissing the complaint is granted, while Schindler's motion for the same relief is denied.

Broad Financial also moves for summary judgment on its cross-claims. The record submitted herein does not disclose any cross-claims or counterclaims interposed by Schindler. Broad Financial's cross-claims include contractual indemnification, breach of contract in failing to procure insurance coverage and common-law indemnification. There is no indemnity provision contained in the Preventive Maintenance Agreement between Broad Financial and Schindler that would be applicable to the facts and circumstances of this action. The only [*6]indemnification provision in the Agreement requires Broad Financial to indemnify Schindler for particular enumerated issues related to the Schindler Remote Monitoring feature, and it does not appear from the Agreement that this feature is included in the services provided in the first place. Similarly, there is no provision in the Agreement requiring Schindler to name Broad Financial as an additional insured on any insurance policy maintained by Schindler applicable to the facts and circumstances presented here.

Although contractual indemnity is not available to Broad Financial, "in the absence of an express covenant of indemnity, a primary or principal wrongdoer is responsible for his negligent act not only to the person injured, but to one indirectly harmed by being cast in damages by operation of law for the wrongful act . . . Thus, one party to a contract may be held as the indemnitor of the other if that other party is cast in damages as a result of the first party's dereliction of duty." Cox v. Cordice, 90 AD2d 297, 299, 457 N.Y.S.2d 2, 3 (1st Dep't 1982), affirmed, 60 NY2d 723, 456 N.E.2d 1203, 469 N.Y.S.2d 80 (1983). In other words, "[i]ndemnification based on common law depends on a showing that [the owner's] liability, if any, arose only vicariously, and that the accident was caused directly by [the contractor's] negligence." Donnelly v. Treeline Cos., 13 AD3d 143, 785 N.Y.S.2d 691 (1st Dep't 2004) (citations omitted).

One example of a party whose liability is vicarious is "the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it." Guzman v. Haven Plaza Housing Dev. Fund Co., 69 NY2d 559, 509 N.E.2d 51, 516 N.Y.S.2d 451 (1987); see also Mas v. Two Bridges Assoc., 75 NY2d 680, 687-88, 554 N.E.2d 1257, 555 N.Y.S.2d 669 (1990). Absent Broad Financial's actual notice of the condition alleged to have caused plaintiff's accident, negligence, if at all, must lie with Schindler. See Rogers, supra; see also Sirigiano v. Otis Elevator Co., 118 AD2d 920, 499 N.Y.S.2d 486 (3d Dep't 1986) ("Although Plaza had a nondelegable duty to plaintiff to maintain and repair the elevator, unless Plaza had actual notice of the malfunction, its liability was vicarious only; Otis, who contractually undertook to provide inspection and maintenance on behalf of Plaza, was the party primarily liable"), appeal denied, 68 NY2d 604, 497 N.E.2d 707, 506 N.Y.S.2d 1027 (1986).

Although Schindler argues that Broad Financial did have notice of the condition and therefore cannot be solely vicariously liable and therefore entitled to indemnification, Schindler simultaneously adopts Broad Financial's arguments and facts in order to establish its lack of notice. Having found herein that Broad Financial did not have notice of the condition, given the broad duties undertaken by Schindler, see Mas, supra, and given the lack of evidence of actual negligence on Broad Financial's part, see Wagner v. Grinnell Hous. Dev. Fund Corp., 297 AD2d 226, 746 N.Y.S.2d 156 (1st Dep't 2002), appeal denied, 99 NY2d 502, 782 N.E.2d 567, 752 N.Y.S.2d 589 (2002), Broad Financial is entitled to indemnification from Schindler.

Accordingly, it is

ORDERED, that the motion of defendant Broad Financial Center, LLC for summary judgment dismissing plaintiff's complaint (Motion Sequence #5) is granted; and it is further

ORDERED, that the clerk of the court shall enter judgment in favor of defendant Broad Financial Center, LLC dismissing plaintiff's complaint; and it is further

ORDERED, that the motion of defendant Broad Financial Center, LLC for summary [*7]judgment on its cross-claims against defendant Schindler Elevator Corporation (Motion Sequence #5) is granted to the extent of granting summary judgment in favor of defendant Broad Financial Center, LLC on its first and second cross-claims seeking common-law indemnity, and the motion is otherwise denied; and it is further

ORDERED, that the clerk of the court shall enter judgment in favor of defendant Broad Financial Center, LLC on its first and second cross-claims against defendant Schindler Elevator Corporation; and it is further

ORDERED, that the motion of Schindler Elevator Corporation for summary judgment dismissing plaintiff's complaint (Motion Sequence #6) is denied; and it is further

ORDERED, that the motion of Schindler Elevator Corporation for summary judgment dismissing the cross-claims of defendant Broad Financial Center, LLC against it (Motion Sequence #6) is granted to the extent of dismissing the third and fourth cross-claims of Broad Financial Center, LLC for breach of contract and contractual indemnification, and is otherwise denied; and it is further

ORDERED, that the clerk of the court shall enter judgment in favor of Schindler Elevator Corporation dismissing the third and fourth cross-claims of defendant Broad Financial Center, LLC.

This constitutes the decision and order of the court.

Dated: November 9, 2009

____________________________

Lucindo Suarez, J.S.C.