Upon the foregoing papers, the foregoing motion(s) [and/or cross-motions(s), as indicated below, are consolidated for disposition] and decided as follows:

Defendant/Third Party defendant Homes for the Homeless Institute; Inc ("Homes for the Homeless") moves for summary judgment dismissing the main and third party action. Defendant/third party plaintiff Brink Elevator Corp d/b/a Herk Elevator (collectively referred to as "Brink" hereinafter) moves for summary judgment dismissing the plaintiff's action and for summary judgment in its favor in the third party action for contractual indemnification.

This is a negligence action in which the plaintiff alleges that on May 29, 2005 he sustained injuries in an elevator located on the premises of 175-15 Rockaway Boulevard, Jamaica, New York ("subject premises"). Non party Saratoga Family Inn was the owner of the subject premises and Homes for the Homeless was the tenant leasing the premises. On the day of the accident, the plaintiff was employed as a security guard for Home for the Homeless and was assigned to elevator car No. 1. When posted in an elevator, the plaintiff was responsible for its operation. The plaintiff would open and close the doors and select the floors as requested by the individuals in the elevator. On the day of the accident, the elevator did not open flush with the floor and got stuck between two floors twice. The first time the elevator got stuck between floors, the plaintiff informed his supervisor Mr. Beckford and in turn Beckford went up to the roof, "hit the button" and the elevator started up again. Plaintiff contends that the second time the elevator got stuck in between floors, there was a resident alone in the elevator. Mr. Beckford went up to the roof and got the elevator moving again. Thereafter, the elevator was "still kind of jumping" while in motion and when it stopped. At approximately 10:00 pm the elevator made a noise described as "do do do do", vibrated and dropped from the fourth floor to an undetermined distance and made a loud "boom." The plaintiff was standing waiting for the doors to open so he could exit when he heard the elevator make the "do do do do" noise again. He sat in the operator's chair and held on to its arms in anticipation of another drop. It continued to drop an undetermined distance and when it did stop the elevator ceiling collapsed and fell on the plaintiff. Eventually, the fire department [*2]removed the plaintiff from the elevator while it was still stuck in between floors.

The plaintiff further testified that prior to the date of his accident there were similar problems with the elevator in question. He stated it would 'jump" from floor to floor, get stuck between floors and would not open level with certain floors. Repairs were taking place on what appeared to be a daily basis. On some occasions the supervisors would go to the roof and "hit some buttons" or use "an emergency key" to get the elevator going again.

Homes for the Homeless' employee Samuel Beckford ("Beckford") , a security supervisor, conceded at his deposition that the elevator in question had a "breaker" problem. Beckford explained that there were occasions in which the elevator's breaker would go "off' and cause the elevator to stop moving. In order to reset the breaker and get the elevator moving again he would have to shut down the elevator's power and turn it back on. Beckford testified that he informed Home for the Homeless' administration and operations staff, as well as, Brinks of the elevator's breaker problem. However, he could not recall if the breaker had malfunction during the last six months prior to the date of accident.

Saratoga Family Inn entered into a contract with Brinks in which Brinks agreed to service the elevator equipment and keep same properly adjusted and with the exercise of care by Brinks keep the elevator in proper and safe operating condition. Brinks further agreed: to regularly and systematically visually examine, adjust, lubricate and conduct company safety tests and; when in the company's judgment and conditions warranted repair and replace enumerated wearing parts of the controller, selector, relay panel, machine, door operator and certain motor parts.

Defendants now move for summary judgment on the grounds that they did not have any actual or constructive notice of the defect which caused the elevator to drop.

Pursuant to the Honorable Alison Y. Tuitt's order dated April 22, 2009, the parties had until August 31, 2009 to make any summary judgment motion. Defendant Brink's motion is timely and the Court finds sufficient cause was shown for defendant Homeless' untimely application and considers same.

The court's function on this motion for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]). The party opposing a motion for summary judgment is entitled to all favorable [*3]inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party (Rodriguez v. Parkchester South Condominium, Inc., 178 AD2d 231 [1st Dept. 1991]). The movant must come forward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Lesocovich v. 180 Madison Avenue Corp., 81 NY2d 982 [1993]). Upon this showing, the burden shifts to plaintiff to come forward with sufficient evidence in admissible form, to defeat defendant's motion (Licari v. Elliott, 57 NY2d 234, 455 N.Y.S.32d 570 [1982]).

Turning to Brink's motion, the court notes that "[a]n elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found (Rogers v Dorchester Assocs., 32 NY2d 553, 558 [1973]). Negligent inspection and repairs may be inferred from the failure of an elevator when the elevator company has complete charge of the maintenance of the elevator (Rubino v. Ocean Prime, LLC, 862 NYS2d 817 [NY Sup Ct 2008] citing Rogers, supra at 560; Solowij v. Otis Elector Co., 295 AD2d 145 [1st Dept 2002]). On a motion for summary judgment, an elevator company with a full service contract has the initial burden of establishing, as a matter of law, that it exercised reasonable care to discover and correct a dangerous condition which it ought to have found (see Mezon v. Dover Elevator Co. 272 AD2d 227 [1st Dept 2000]).

The Court finds that Brink has not met its initial burden. Beckford testified at his deposition that a Homes for the Homeless employee notified Brink of the problem with the subject elevator. During the deposition of Brink's witness William Tamaraz, it was established that on the incident report generated by Homes for the Homeless, there was a Brink mechanic by the name of Bill McCray and a helper by the name Tommy Hill as the individuals who responded to the call. In addition, there was a work ticket dated June 14, 2005 (less than a month after the subject accident) which described the work as follows: "First pickup drive sheave at repair shop. Brought to job and installed new sheave and put main machine back together." [FN1] Clearly, Brink made repairs to the subject elevator shortly after the accident. The most logical conclusion is that it repaired the problem that caused the elevator to drop. However, Brink is silent as to what caused the accident and instead relies on the fact that the plaintiff has not been able to identify the cause of the elevator's malfunction. A party seeking summary judgment may not merely point to gaps in the opponent's proof to obtain relief. Rather, the movant must adduce [*4]affirmative evidence of it entitlement to summary judgment (see Torres v. Industrial Container, 305 AD2d 136 [1st Dept. 2003]). The Court is of the opinion that in failing to identify and state the cause of the malfunction, it is impossible for Brink to argue that it exercised reasonable care to discover and correct a condition which it ought to have found. Thus, the branch of Brink motion which seeks summary judgment is denied.

FN1. See deposition transcript of Tamaraz at p. 95.