Marie Bradley,, et al., Appellants,v.HWA 1290 III LLC, et al., Respondents.BriefN.Y.October 10, 2018To Be Argued By: Steve S. Efron New York County Clerk’s Index No. 157576/12 Jleto gorfe Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT >ÿ44 MARIE BRADLEY, as Administratrix for the Estate of EDWARD BRADLEY (Deceased), and MARIE BRADLEY, Individually, Plaintiffs-Respondents, against HWA 1290 III LLC, HWA 1290 IV, LLC, HWA 1290 V LLC, and UNITED ELEVATOR CONSULTANTS SERVICE, INC., Defendants-Appellants. BRIEF FOR DEFENDANTS-APPELLANTS SABATINI & ASSOCIATES Attorneys for Defendants-Appellants 237 West 35th Street, Suite 1502 New York, New York 10001 212-239-5900 rjs@sabatini-law.com Printed on Recycled Paper TABLE OF CONTENTS iiTABLE OF AUTHORITIES 1PRELIMINARY STATEMENT 2QUESTIONS PRESENTED 2STATEMENT OF THE CASE A. 2Facts Procedural History and Decision BelowB. 7 8ARGUMENT I. BECAUSE NO ONE SAW THE ACCIDENT OR KNOWS HOW IT OCCURRED, DEFENDANTS CANNOT BE HELD LIABLE ON THE THEORY THAT SOME ALLEGED NEGLIGENCE ON THEIR PART PROXIMATELY CAUSED DECEDENT’S DEATH. 8 II. PLAINTIFF’S VARIOUS THEORIES OF HOW THE ACCIDENT MIGHT HAVE HAPPENED REST ON MERE SPECULATION AND ARE INSUFFICIENT TO AVOID SUMMARY JUDGMENT 14 A. Alleged Poor Lighting in the Motor Room B. Alleged Failure to Provide a Helper C. Alleged Lack of a “Safety Cover” Over the Transformers Contained Within a Cabinet 14 17 19 CONCLUSION 28 I TABLE OF AUTHORITIES Cases Abdullah v. City of N.Y., 203 A.D.2d 397 (2d Dept. 1994) Ali v. City o/N.Y., 57 A.D.3d 391 (1st Dept. 2008) Aranskyv. Comfort Mart Distribs., Inc., 52 A.D.3d 1076 (3d Dept. 2008) Carty v. Port Auth. of N.Y. & N.J., 32 A.D.3d 732 (1st Dept. 2006) Comes v. N.Y State Elec. & Gas Corp., 82 N.Y.2d 876, 631 N.E.2d 110(1993), Curran v. Esposito, 308 A.D.2d 428 (2d Dept. 2003) D'Amico v. Mfrs. Hanover Trust Co., 173 A.D.2d 263 (1st Dept. 1991) Dubiel v. Parkchester Mgmt. Corp., 284 A.D.2d 223 (1st Dept. 2001) Fernandes v. Lawrence, 10 A.D.3d 382 (2d Dept. 2004) Finerty v. Abex Corp., 27 N.Y.3d 236, 51 N.E.3d 555 (2016). Gobhai v. KLM Royal Dutch Airlines, 85 A.D.2d 566 (1st Dept. 1981) Gonzalez v. City of N.Y., 109 A.D.3d 510 (2d Dept. 2013) Hartnett v. Chanel, Inc., 97 A.D.3d 416 (1st Dept. 2012) 11 16 10 16 19 16 21 10 27 21 21 26 21,22, 23 ii Herman v. St. John’s Episcopal Hosp., 242 A.D.2d 316 (2d Dept. 1997) Holliday v. Hudson Armored Car & Courier Serv., Inc., 301 A.D.2d 392 (1st Dept. 2003) Huerta v. N.Y.C. Transit Auth., 290A.D.2d33 (1st Dept. 2001) Lombardi v. Stout, 80 N.Y.2d 290, 604N.E.2d 117(1992) Love v. N.Y.C. Hous. Auth., 251 A.D.2d 553 (2d Dept. 1998) Roldan v. N.Y. Univ., 81 A.D.3d 625 (2d Dept. 2011) Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 493 N.E.2d 920 (1986) Serna v. N.Y. State Urban Dev. Corp., 185 A.D.2d 562 (3d Dept. 1992) Shkoditch v. One Hundred and Fifty William St. Corp., 17A.D.2d 168 (1st Dept. 1962) Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402 (1st Dept. 1991) Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 132 A.D.2d 313 (3d Dept. 1987) Smith v. Johnson Prods. Co., 95 A.D.2d 675 (1st Dept. 1983) Smith v. Wisch, 77 A.D.2d 619 (2d Dept. 1980) Soto v. Assisted Care Home Attendants Program, 66 A.D.3d 530 (1st Dept. 2009) 16 13 26 22 26 13 27 21 13 10 19 21 12 10, 11 iii Stock v. Otis Elevator Co., 52 A.D.3d 816 (2d Dept. 2008) Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 447 (2d Dept. 2001) Walsh v. Murphy, 267 A.D.2d 172 (1st Dept. 1999)..., White v. Lehigh Valley R.R. Co., 220 N.Y. 131, 115 N.E. 439 (1917), Wright v. .S'. Nassau Cmtys. Hosp., 254 A.D.2d 277 (2d Dept. 1998) Zalot v. Zieba, 81 A.D.3d 935 (2d Dept. 2011) 13 11 13 12 17 13 iv PRELIMINARY STATEMENT Edward Bradley, an experienced elevator maintenance mechanic, was fatally electrocuted through accidental contact with a transformer while he was on the job. Mr. Bradley was working alone at the time, and no one saw the accident. Thus, no one can say how the accident occurred. Because it is not known how the accident occurred, it is mere speculation to say that some alleged negligence on the part of defendants proximately caused Mr. Bradley’s death. Plaintiff does not know how Mr. Bradley’s accident occurred and therefore floats several theories of how it might have happened, from the alleged poor lighting in the room to the reassignment of Mr. Bradley’s helper, but to suggest that any of these things caused Mr. Bradley’s death is just speculation. The IAS court therefore erred in refusing to dismiss the complaint. The court’s refusal to dismiss the complaint is all the more confounding in light of its seemingly dispositive finding that plaintiff “failed to show” any “facts from which defendants’ negligence may be inferred.” R. 9 (Decision & Order at 3) (hereinafter, “D&O”). The IAS court’s decision appears to have been influenced by the court’s stated view that “[tjhere’s some cases where you can’t obtain summary judgment. That’s just the reality. And this is one of them because we’re never going to know exactly what happened.” R. 38 (Tr. 16). But the IAS court got it exactly backwards. Under numerous cases decided by this Court and other courts, see infra at 10-13, the fact that no one knows the events, let alone the sequence of events, that led to Mr. Bradley’s death is a reason to grant, not deny, summary judgment for the defendants. QUESTIONS PRESENTED Whether defendants may be held liable for decedent’s death where no1. one saw the accident or knows how it occurred. Defendants’ answer is “no.” Whether defendants may be held liable for decedent’s unwitnessed2. death on the theory that the elevator control cabinet in which the transformer was enclosed was not safe, where defendants (a) did not design or manufacture the control cabinet, (b) did not know about the work decedent was performing when the accident occurred, and (c) had no authority over the means and methods of decedent’s work. Defendants’ answer is “no.” STATEMENT OF THE CASE A. Facts This case arises out of the tragic death of Edward Bradley on March 28, 2012. Mr. Bradley, an experienced, 44-year-old elevator maintenance mechanic, was electrocuted as the result of accidental contact with a transformer while he was working in the building located at 1290 Avenue of the Americas. Mr. Bradley was working alone when he died. No one witnessed the accident. 2 Mr. Bradley was the employee of non-party Schindler Elevator Corporation (“Schindler”), the building’s elevator maintenance contractor. He had been an elevator mechanic for 18 years. R. 282 (Smith EBT pg. 49). For five years Mr. Bradley worked every day in the building as the resident or “stationary” elevator maintenance mechanic. Id.; see also R. 393 (Soutar Aff.|3). The HWA 1290 defendants (collectively, “the Building Defendants”) are the owners of the building. They hired co-defendant United Elevator Consultants Service, Inc. (“United”) as an elevator consultant to monitor Schindler’s performance under its contracts with the building. Defendants had no control over Mr. Bradley’s work and never directed how he performed his work. R. 393 (Soutar Aff. f 4); see also R. 399 (Jacobson Aff. 6). Mr. Bradley received all of his training and tools from Schindler. R. 393 (Soutar Aff. 3). The accident occurred in the elevator motor room on the ninth floor of the building, where elevator control cabinets and hoist motors are located. The time of Mr. Bradley’s death on March 28, 2012, is not known. He last sent a text around 2:30 p.m. R. 235 (Marie Bradley EBT pg. 88). Hours later, building engineers discovered Mr. Bradley in the motor room. The Medical Examiner (“M.E.”) concluded that the cause of death was “electrocution” and the manner of death was “accident (right arm contacted electrical transformer).” R. 375 (Report of Autopsy). 3 Mr. Bradley was lying partially inside the bottom of the #3 elevator control cabinet. His body was “slumped over a transformer,” the victim of “an apparent accidental electrocution.” R. 240-241 (Vornado Incident Report). The record contains photographs of the control cabinet and the decedent, taken after his body was lifted out of the cabinet. E.g., R. 269, R. 328, R. 359-367. These photographs show three transformers on the bottom right side of the control cabinet. Rags, shown in the photographs, were found on top of the transformer on the far right. R. 282, R. 293 (Smith EBT pg. 46, 90). Screws and wire nuts were found on the floor beneath the three transformers located at the bottom of the control cabinet. R. 338-39 (Dunn EBT pg. 34-38). Mr. Bradley “did not have his safety gloves on at the time of the incident. They were found beneath his body.” R. 241 (Vornado Report); see also R. 368 (M.E. Investigator’s Report at 1) (“Decedent did not have his rubber gloves on. They were on a clip on his belt.”). Captain Jeffrey Facinelli of the New York City Fire Department responded to the 911 call. At the scene, Captain Facinelli saw Mr. Bradley “face down on the floor” with one of his arms “reaching into the cabinet.” R. 248 (Facinelli EBT pg. 24-25). Facinelli found that Mr. Bradley’s “right arm and right side of his chest were lying on top of a transformer inside of the control panel.” R. 253 (Facinelli EBT pg. 42-43). 4 The New York City Department of Buildings (“DOB”) investigated the accident. Chief Elevator Inspector Douglas Smith was in charge of the investigation. He testified that Mr. Bradley was electrocuted when his right arm came into contact with the middle of the three transformers. R. 280 (Smith EBT pg. 39-41). When asked about the rags found on the third transformer, Chief Inspector Smith testified that he has seen mechanics place rags on electrical devices as “an insulator of some kind. Not that a rag is a good insulator.” R. 293 (Smith EBT pg. 90). He testified that it is not safe for a mechanic to use a rag as an insulator. Id. (Smith EBT pg. 91). Smith’s report considered how the accident might have occurred. “It appears [Bradley] was working at the bottom of the controller where the transformer was mounted and may have been reaching over and below the transformer when his arm and body made contact.” R. 309 (DOB Accident Report). Smith testified that “maybe [Bradley] dropped something, was reaching for something. ... [M]y superiors were asking for a reason why it could have happened. He may have fallen and he may have passed out. He may have been working low at that point reaching for something.” R. 290 (Smith EBT pg. 80). Smith stated that these were all “possibilities” but were “speculation.” Id. As to the reason Mr. Bradley was in the control cabinet, Smith wrote in his report that “Bradley appears to have been performing maintenance on the #3 elevator 5 controller in the 9th floor motor room.” R. 309 (DOB Accident Report). The #3 elevator’s “fault log revealed a brake fault occurred at 1:30pm on 3/28/12, which appears to be the reason for the victim trouble shooting the elevator’s controller.” Id. Smith testified that the brake fault “would have shut the elevator down and [Bradley] appears to be responding to that elevator for that reason.” R. 289 (Smith EBT pg. 76). Defendants did not design or manufacture the control cabinet. It was made by the O. Thompson Company in 1997. R. 618 (Garcia Aff. *[f 4); R. 624 (photograph of Thompson label affixed to exemplar control cabinet). The control cabinet was certified by Environmental Testing Labs (“ETL”) as complying with requirements of the American National Standards Institute (“ANSI”). Id. ETL is an independent tester/certifier of products in the elevator industry similar to Underwriters Laboratory (“UL”). No one knows how this accident occurred, because no one saw it happen. No one sent Mr. Bradley to the motor room, and he did not tell anyone he was going there. There is no way to be sure why he was in the motor room or what he was doing in the control cabinet. And there is no way to know the actual events, or the sequence of them, that caused his arm to contact the transformer. 6 B. Procedural History and Decision Below Plaintiff, decedent’s widow, sued the Building Defendants and United, alleging negligence and Labor Law violations. R. 7 (“D&O” at 1). Defendants moved for summary judgment dismissing the complaint, and the IAS court granted the motion in part. R. 8 (D&O at 2). The court dismissed plaintiff’s claim under § 241(6) of the Labor Law. R. 10-14, R. 22 (D&O at 4-8, 16). The court also dismissed plaintiff’s negligence/Labor Law § 200 claim to the extent it was based on the reassignment of Mr. Bradley’s helper. R. 20-22 (D&O at 14-16). The court, however, allowed plaintiff to pursue that claim insofar as it was based on the alleged inadequate lighting in the motor room and the alleged lack of a cover over the transformers. R. 15-18 (D&O at 9-12). The IAS court’s own findings, however, show that all of plaintiff’s claims failed. The court found that plaintiff “failed to show” any “facts from which defendants’ negligence may be inferred.” R. 9 (D&O at 3). The IAS court observed that no one knows the cause of Mr. Bradley’s “unwitnessed” death: “[T]he undisputed evidence in the current record shows that defendants’ knowledge of the cause of Edward Bradley’s unwitnessed death is no greater than plaintiffs’ knowledge of the occurrence.” R. 9-10 (D&O at 3-4). Given that plaintiff presented no evidence of negligence by defendants (much less evidence that some negligence by defendants proximately caused the accident), and given that no one knows how 7 Mr. Bradley’s death occurred (other than he was electrocuted on a transformer), the IAS court should have dismissed the complaint in its entirety. Although plaintiff and her putative expert argued that the control cabinet was not safe because the transformers allegedly lacked a cover, plaintiff did not sue the O. Thompson Company, the manufacturer of the cabinet, on a products liability theory for an allegedly defective design. ARGUMENT I. BECAUSE NO ONE SAW THE ACCIDENT OR KNOWS HOW IT OCCURRED, DEFENDANTS CANNOT BE HELD LIABLE ON THE THEORY THAT SOME ALLEGED NEGLIGENCE ON THEIR PART PROXIMATELY CAUSED DECEDENT’S DEATH. The complaint should be dismissed because it is not known, and cannot be known, how the accident that killed decedent occurred. That accident, as the IAS court noted, was “unwitnessed.” R. 10 (D&O at 4). While there is some reason to believe that he was attending to a brake fault, no one knows for sure why Mr. Bradley was in the motor room working in the elevator control cabinet. The IAS court observed that “no admissible evidence establishes that he was called to investigate or repair that malfunction or that he even was informed of it.” R. 13 (D&O at 7). As plaintiff’s putative expert admitted, “it cannot be said with any certainty what task he was performing at the time of his death because there was no documented service call or logbook entry.” R. 553 (Olson Aff. 13). 8 Mr. Bradley electrocuted himself in the control cabinet, but both the actual events, and the sequence of events that led to his arm coming into contact with the transformer, are not known. As Chief Inspector Smith testified, it is possible Mr. Bradley could have been reaching for something below the transformers (screws were found beneath them). R. 290 (Smith EBT pg. 80). It is also possible that Mr. Bradley passed out while working in the control cabinet and fell on the transformers. Id. He may have attempted to use rags as a makeshift insulator, which is not safe. R. 293 (Smith EBT pg. 90-91). And his death may be related to the fact that he was not wearing his electrically insulated rubber safety gloves. R. 241 (Vornado Report); R. 368 (M.E. Investigator’s Report at 1). Because the specific events that caused Mr. Bradley’s electrocution are not known and cannot be known, it is impossible to say that defendants caused his death. More specifically, it cannot be said that any alleged negligence on their part was the proximate cause of his death. See R. 9 (D&O at 3) (stating that plaintiff has “failed to show” any “facts from which defendants’ negligence may be inferred”). If the facts surrounding his death were known, it could be that Mr. Bradley’s own conduct was sole proximate cause of his death. He may have tried to use the rags found on one of the transformers as an insulator— which Chief Inspector Smith said is not safe. R. 293 (Smith EBT pg. 91). Furthermore, Mr. Bradley was not wearing his protective gloves. See Aransky v. Comfort Mart Distribs., Inc., 52 A.D.3d 1076, 9 1077 (3d Dept. 2008) (holding that a bracket was not a proximate cause of plaintiff’s cutting his hand “because he was not wearing his safety gloves when he inadvertently grabbed the sharp edge of the bracket”). The legal principle that controls this case is well established: “To find defendants liable upon plaintiff’s first cause of action sounding in common-law negligence would be to rest on sheer speculation as to how the accident occurred— an inadmissible course.” Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402, 404 (1st Dept. 1991). The rule has been applied in numerous cases where decedent’s death made it impossible to determine how the fatal accident happened. See, e.g., Soto v. Assisted Care Home Attendants Program, 66 A.D.3d 530 (1st Dept. 2009); Dubiel v. Parkchester Mgmt. Corp., 284 A.D.2d 223 (1st Dept. 2001). In Dubiel decedents were allegedly struck by an elevator door but died before they could be deposed. There was “no competent evidence in the record as to how the alleged accident occurred.” Id. at 224. This Court held that “in view of plaintiff’s failure to raise a triable issue as to whether the decedents’ harm was attributable to the negligence of any of the defendants, the complaint should have been dismissed in its entirety.” Id. In Soto, plaintiff’s suit contending that decedent “fell out of bed due to the alleged negligence of her home health aide” was dismissed. Soto,66 A.D.3d at 530. This Court affirmed because “plaintiff had no personal knowledge of the facts 10 relating to the injury” which “relegat[ed] her theory to being proven only by speculation.” Id. (citing Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 447 (2d Dept. 2001)). In Teplitskaya, decedent slipped and fell in a room where paint chips from the ceiling covered the floor. No one saw the accident, and the decedent died before any testimony was taken from him. Affirming the grant of summary judgment for the defendant, the court rejected plaintiff’s theory that the paint chips caused the fall, explaining that “any determination as to how the accident occurred would be based upon speculation,” since “it is just as likely that accident could have been caused by some other factor, such as a misstep or loss of balance.” Id. at 477. Here, it is known that Mr. Bradley was electrocuted through contact with a transformer, but it is not known how the accident actually occurred. In Abdullah v. City ofN.Y., 203 A.D.2d 397 (2d Dept. 1994), plaintiff “was struck by a car driven by the defendant” but “[tjhere was no testimony at trial as to how the accident happened, e.g., the speed and direction of the vehicle, the condition of the driver, or the condition of the road surface.” Id. at 397. Because “[tjhere was no testimony as to how the incident actually occurred,” the court held that “the jury was improperly permitted to speculate as to the cause of Abdullah’s injury.” Id. at 398. Accordingly, knowing that Mr. Bradley was electrocuted by a transformer is not enough. Because it is not known how the accident actually occurred, the case must be dismissed. 11 In Smith v. Wisch, 77 A.D.2d 619 (2d Dept. 1980), a roofer working on a second story sun deck fell to his death. “There were no witnesses to the fall” and “no one knows how the deceased came to fall.” Id. at 619. The complaint was dismissed. “Where a jury would be compelled to speculate upon various possible causes of an accident which ‘may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover, and the evidence should not be submitted to the jury.’” Id. at 620 (quoting White v. Lehigh Valley R.R. Co., 220 N.Y. 131, 135-36, 115 N.E. 439, 441 (1917)). At the summary judgment hearing, the IAS court expressed the erroneous view that because no one knows what happened here, summary judgment must be denied. “There’s some cases where you can’t obtain summary judgment. That’s just the reality. And this is one of them because we’re never going to know exactly what happened.” R. 38 (Tr. 16). “[B]ut just not knowing is not going to get defendants summary judgment.” Id. The IAS court, however, got it backwards. The fact that no one knows what happened to cause the accident is a reason to grant summary judgment to defendants. The numerous cases holding that summary judgment is properly granted to defendant when how the accident occurred is a matter of speculation should be followed here. See, e.g., Holliday v. Hudson Armored Car & Courier Serv., Inc., 301 A.D.2d 392, 398 (1st Dept. 2003) (holding that, because “any determination as 12 to the cause of Holliday’s injuries would be based on pure speculation, Hudson is entitled to summary judgment dismissing the complaint”); Walsh v. Murphy, 267 A.D.2d 172, 172 (1st Dept. 1999) (“In view of the fact that the evidence permits no more than speculation as to the cause of plaintiff’s fall down defendants’ staircase, the IAS court properly granted defendants summary relief.”); Zalot v. Zieba, 81 A.D.3d 935, 936 (2d Dept. 2011) (“Absent any evidence as to how the accident occurred, the plaintiff’s case rests upon mere speculation as to the defendants’ negligence and the applicability of the Labor Law.”); Roldan v. N.Y Univ., 81 A.D.3d 625 (2d Dept. 2011) (plaintiff’s decedent injured in elevator accident but died before he could be deposed; order granting summary judgment to defendants affirmed); Stock v. Otis Elevator Co., 52 A.D.3d 816, 816 (2d Dept. 2008) (“any determination as to how the accident occurred would be based on speculation”). As this Court explained in Shkoditch v. One Hundred and Fifty William Street Corp., 17 A.D.2d 168, 170 (1st Dept. 1962): It is a cardinal rule that a defendant may not be cast in damages merely because of the happening of an accident. It must be proven that the accident occurred because of the negligence of the one sought to be charged. The plaintiff failed to establish how the accident occurred and what caused the fall of the boatswain’s chair in which he was working. Plaintiff does not know how Mr. Bradley’s accident occurred. No one does. Defendants therefore cannot be held liable for his death. Any trial of this matter would be an exercise in sheer, and impermissible, speculation. 13 II. PLAINTIFF’S VARIOUS THEORIES OF HOW THE ACCIDENT MIGHT HAVE HAPPENED REST ON MERE SPECULATION AND ARE INSUFFICIENT TO AVOID SUMMARY JUDGMENT. Because plaintiff does not know how the accident occurred, she posits three different theories of how it might have happened. She alleges that the lighting in the motor room should have been better, that Mr. Bradley should have had a helper, and that the transformers within the control cabinet should have had a cover. R. 15 (D&O at 9). Each theory, however, is speculative and legally insufficient. A. Alleged Poor Lighting in the Motor Room Plaintiff’s first theory is that the lighting in the motor room was inadequate. Plaintiff relies on the testimony of Mr. Bradley’s former mechanic’s helper, Juan Melendez, who testified that he thought the light in the motor room was “poor.” R. 153 (Melendez EBT pg. 26). A portable light stick was found near Mr. Bradley’s body. R. 17 (D&O at 11). Plaintiff’s poor lighting theory fails, first and foremost, because the notion that Mr. Bradley was electrocuted because of the amount of light in the room is rank speculation. There is no evidence in the record on which a jury could properly conclude that defendants negligently failed to provide sufficient lighting in the motor room and that this was the proximate cause of Mr. Bradley’s death. Melendez was not even in the room when decedent died, and his testimony that the light in the 14 motor room was poor does not establish that the accident was caused by the amount of light in the room. To the contrary, the record establishes that the lighting in the motor room was not, in fact, inadequate. Chief Inspector Smith determined that the lighting in the room was up to code. He testified that “based on the light in the motor room based on code it had adequate lighting.” R. 297 (Smith EBT pg. 107); see also id. (EBT pg. 108) (“Q. You stated that the lighting that you just stated was to code in the machine room, right? A. Yes.”). Smith also testified that he had no difficulty with the lighting in the motor room and had no difficulty seeing the component parts of the elevator cabinet. R. 288 (EBT pg. 71). He did not consider the light stick to be relevant to his investigation. R. 289 (EBT pg. 74). Elevator mechanics, he said, “always carry a flashlight.” R. 297 (EBT pg. 107); accord R. 298 (EBT pg. 111). There is no way to know whether Mr. Bradley was using the light stick when the accident occurred or whether he had any trouble with the lighting in the motor room. The IAS court ruled that there was a “conflict” between Melendez’s testimony and Chief Inspector Smith’s testimony, which “leaves a factual issue, dependent on credibility.” R. 17 (D&O at 11). But Smith’s testimony was that the light in the motor room was up to code, a fact that Melendez did not dispute. Especially given Smith’s undisputed testimony, Melendez’s testimony that the light in the room was, in his view, poor simply cannot support a jury finding that defendants negligently 15 failed to provide adequate lighting and that such alleged negligence proximately caused Mr. Bradley’s death. See Ali v. City ofN.Y., 57 A.D.3d 391, 392 (1st Dept. 2008) (plaintiff’s “mere conclusions” that there was “‘not enough light’” and that it was “‘kind of dark’” at the time of the accident “were insufficient to establish that the lighting in the area was inadequate”); Carty v. Port Auth. of N.Y. & N.J., 32 A.D.3d 732, 734 (1st Dept. 2006) (“plaintiff’s vague testimony that the lighting was ‘poor’ and the basement where he fell was ‘dark’ was ‘insufficient to create an inference that the amount of lighting fell below the specific statutory standard’”); Curran v. Esposito, 308 A.D.2d 428, 429 (2d Dept. 2003) (“The evidence adduced here establishes nothing more than a possibility that the plaintiff’s fall was caused by the tear in the carpeting or the lack of adequate lighting. The trier of fact would be required to base a finding of proximate cause upon nothing more than speculation.”) (citation omitted); Herman v. St. John s Episcopal Hosp., 242 A.D.2d 316, 317 (2d Dept. 1997) (“plaintiff’s conclusory and unsubstantiated allegations that the lighting in the basement where he fell was poor and that the basement was dark, were insufficient to raise a triable issue of fact”); Wright v. S. Nassau Cmtys. Hosp., 254 A.D.2d 277, 278 (2d Dept. 1998) (“the bare, conclusory statement by the plaintiff’s husband, who was not present at the time of the accident, that he believed the lighting to be inadequate was insufficient to raise a triable issue of fact in view 16 of the detailed testimony by the Director of Safety and Security regarding the actual lighting in the parking lot”). B. Alleged Failure to Provide a Helper Under its contract with the building, Schindler assigned to the building a resident mechanic (Mr. Bradley) and a mechanic’s helper (Melendez). In January 2012, Schindler assigned Melendez (but not Mr. Bradley) to work on a project involving the modernization of the building’s elevators. R. 11-12 (D&O at 5-6). The IAS court dismissed plaintiff’s claims insofar as they were based “on removal of Edward Bradley’s helper.” R. 22 (D&O at 16). Plaintiff theorizes that Mr. Bradley’s accident would not have happened if Melendez had been there to help him. Like the inadequate lighting theory, however, this is nothing but speculation. There is no record evidence from which a jury could properly find that the reassignment of Melendez by Schindler (a non-party) constituted negligence by defendants and that such negligence proximately caused the accident. The IAS court rejected the no-helper theory for a different reason. Plaintiff argued that the contract between the Building Defendants and non-party Schindler required Schindler to assign a helper to Mr. Bradley. But the IAS court rejected that argument, explaining that Article 19 of the contract “expressly precludes nonparties to the contract as third party beneficiaries.” R. 21 (D&O at 15). The IAS court also 17 observed that plaintiff did “not claim any other basis on which defendants owed a duty to assign the decedent, who was not their employee, a helper to provide safe working conditions.” R. 22 (D&O at 16). The no-helper theory is also meritless because the record shows that if Mr. Bradley had wanted a helper to assist with whatever work he was doing in the motor room on the day of the accident, Schindler would have provided a helper upon request. “Schindler made additional manpower available to Ed Bradley as it became necessary. This was the practice and procedure of Schindler’s maintenance department in 2012 to supply its mechanics with whatever assistance they might require in the field consistent with safety and productivity.” R. 394 (Soutar Aff. f 6); see also R. 399 (Jacobson Aff. f 6) (confirming Schindler’s “practice of providing its maintenance employees in the field with all additional mechanic and/or helper support which they might require”). Thus, “any time Ed Bradley required assistance during this time it was provided to him.” R. 395 (Soutar Aff. 7). The no-helper theory fails for the additional reason that defendants, who were not Mr. Bradley’s employer, had no “control over and at no time directed how Ed Bradley performed his work.” R. 393 (Souter Aff. f 4). Defendants could not have directed Mr. Bradley to use a helper on the task that resulted in the accident, even if they had known what he was doing. Defendants cannot be held liable based on the no-helper theory. See Comes v. N.Y. State Elec, & Gas Corp., 82 N.Y.2d 876, 877, 18 631 N.E.2d 110, 111 (1993) (property owner not liable where worker was injured by lifting a steel beam by himself since “there is no evidence that defendant exercised supervisory control or had any input into how the steel beam was to be moved”); Simon v. Schenectady N. Congregation of Jehovah’s Witnesses, 132 A.D.2d 313, 316 (3d Dept. 1987) (defendant not liable for not providing a helper to worker who sawed his own thumb off because “defendant was not on notice that plaintiff needed additional help” and “there is no evidence that defendant exercised any control or supervision over the manner in which the work was performed”). Alleged Lack of a “Safety Cover” Over the Transformers Contained Within a Cabinet C. Plaintiff’s final theory is that the transformers in the control cabinet, which the building purchased from the manufacturer in 1997, allegedly lacked a cover. R. 15-17 (D&O at 9-11). Plaintiff’s putative expert, Dennis Olson, offered the speculative and conclusory opinion that “if the transformer had a safety cover then Mr. Bradley would not have been electrocuted.” R. 551 (Olson Aff. 5). Mr. Olson, however, provided no information about the “safety cover” that was supposedly lacking. The IAS court ruled that “Defendants fail[ed] to demonstrate that the uncovered transformers ... did not create dangerous working conditions readily observable to defendants.” R. 15 (D&O at 9). That ruling was error, however, because there is no evidence of any negligence committed by defendants with 19 respect to the transformers or that any such negligence proximately caused Mr. Bradley’s death. As with the poor-lighting and no-helper theories, it is speculative whether having some sort of a cover over the transformers would have avoided the accident. Mr. Bradley might have had to open the cover to do whatever work he was performing in the control cabinet, or he might have removed the cover to reach for a fallen object on the floor beneath the transformers. There are other serious problems with the no-cover theory that make that it a complete non-starter. To begin with, this is not a products liability case against the manufacturer of the elevator control cabinet. The Building Defendants and United did not design or build the cabinet. The O. Thompson Company made and delivered this cabinet to the building in 1997. Even if plaintiff’s suit could be reconceived as a products liability case, plaintiff has sued the wrong defendants. The Building Defendants and United have no products liability for a product they did not design or manufacture. See D’Amico v. Mfrs. Hanover Trust Co., 173 A.D.2d 263, 265 (1st Dept. 1991) (Defendant “cannot be held liable for having manufactured the [injury- causing] ladder unless it is shown to have manufactured the ladder.”); Smith v. Johnson Prods. Co., 95 A.D.2d 675, 677 (1st Dept. 1983) (complaint dismissed because defendant “did not manufacture the product alleged to have been responsible for the injury sustained by the plaintiff’); Gobhai v. KLM Royal Dutch Airlines, 85 A.D.2d 566, 566 (1st Dept. 1981) (defendant not strictly liable for 20 allegedly defective product because defendant “did not manufacture, design or sell” the product), aff’d,57 N.Y.2d 839, 442 N.E.2d 61 (1982); see also Serna v. N.Y State Urban Dev. Corp., 185 A.D.2d 562, 563 (3d Dept. 1992) (building owner not strictly liable where elevator injured plaintiff because building owner did not manufacture the elevator but only purchased it). The manufacturer of a defective product is strictly liable because “[i]t is the manufacturer, and the manufacturer alone” that knows when a product “is suitable designed and safely made for its intended purpose.” Finerty v. Abex Corp., 27 N.Y.3d 236, 241, 51 N.E.3d 555, 558 (2016) (quotation marks omitted). The failure of the negligence claim that plaintiff brings against defendants is convincingly shown by this Court’s decision in Hartnett v. Chanel, Inc., 97 A.D.3d 416 (1st Dept. 2012), a case similar to this one. The Hartnett plaintiff, an electrician employed by Bloomingdale’s, was injured while attempting to run electrical wires for a fire alarm system into a large (8’ tall x 4’ wide) glass display box. The display box was manufactured by Display Craft and was located in the Chanel boutique in Bloomingdale’s. Plaintiff attempted to gain access to the interior of the display box by using a screwdriver to pry off a glass panel, but in so doing he caused the 146- pound panel to fall on him. Plaintiff sued Chanel and Display Craft asserting claims sounding in negligence and strict products liability. The products liability claim 21 asserted that the display box was defective because the glass panel opened, not as a door, but with a “U-channel” system where the glass panel slid into grooves. This Court rejected the products liability claim against Chanel, explaining that “Chanel did not design the display case.” Id. at 419. Rather, “Display Craft designed and manufactured the box, including incorporation of the ‘U-channel’ system.” Id. This Court also rejected the negligence claim against Chanel, for two reasons. First, “Chanel had no knowledge of the installation of the fire alarm system.” Id. at 420. Bloomingdale’s, not Chanel, was installing the alarm system, and plaintiff was Bloomindale’s employee. Second, “it was plaintiff’s method of opening the display box with a screwdriver that was the sole proximate cause of his injury. An owner may not be held liable when the accident arose out of the means and methods of a plaintiff’s work, over which the owner had no authority.” Id. (citing Lombardi v. Stout, 80 N.Y.2d 290, 295, 604 N.E.2d 117, 119(1992)). Hartnett controls the instant case. Like Chanel, the defendants here did not design or manufacture the injury-causing product and so have no products liability. And defendants, like Chanel, cannot be liable under a negligence theory because they had no knowledge of the task Mr. Bradley was performing and had no authority over the means and methods of his work. See R. 393 (Soutar Aff. Tf 4) (defendants did not control or direct how Mr. Bradley performed his work); R. 399 (Jacobson Aff. If 6). 22 Notably, the Hartnett Court also held that Design Chanel, the manufacturer of the glass display box, was not liable— which further confirms that defendants are not liable here. The display box was not defectively designed, this Court held, because “the box functioned effectively for two years,” it “conformed with all applicable codes and regulations,” and its allegedly defective feature “was common in the industry.” Hartnett, 97 A.D.3d at 419. For the same reasons, a design defect claim asserted against the O. Thompson Company presumably would have failed. Hartnett also held that Display Craft had no duty to warn plaintiff because, among other reasons, “there is no duty to warn of a product’s obvious danger, particularly where the injured party was fully aware of the hazard through general knowledge, observation, or common sense.” Id. at 420. Here, the transformers were an obvious danger of which Mr. Bradley, who had 18 years in the trade and five years in the building, R. 282 (Smith EBT pg. 49); R. 393 (Soutar Aff. f 3), needed no sign to warn him of the electrocution risk. Cf R. 17 (D&O at 11). The transformers themselves were the warning. Plaintiff’s putative expert stated that “[tjhere was no barrier or safety cover on the transformer,” R. 552 (Olson Aff. 7), and he implied (but did not actually state) that this violated a standard promulgated by ANSI. R. 551-552 (Olson Aff. 6-7). The ANSI standard in question, A17.5 § 5.2, provides: Barriers shall be installed to prevent contact with live parts if inadvertent contact with bare live parts during normal service and 23 adjustment operation is considered probable. Note: Troubleshooting or the replacement of fuses are not considered normal service and adjustment operations with respect to control equipment, but the resetting of overload devices, repeated adjustment of timers or switches, etc., are considered normal service operations. R. 623 (italics omitted). Olson, however, discloses no expertise with respect to ANSI standards, let alone A17.5 § 5.2. R. 550 (Olson Aff. 1). He is not qualified to say that the O. Thompson Company violated A17.5 § 5.2 when it manufactured the control cabinet in 1997. Setting aside Olson’s lack of qualifications, the ANSI standard argument fails for multiple reasons. First, the ANSI standard does not require, or even speak of, “safety covers” over “transformers.” Indeed, A17.5 § 5.2 does not even use those words. Instead, the standard refers to “barriers” to prevent contact with “bare live parts.” There are many live parts within a control cabinet other than transformers. See R. 620 (Garcia Aff. f 7) (“There are many components inside the controller cabinet which require high voltage in order to operate and which are lethal to a mechanic who fails to wear PPE [personal protective equipment] or otherwise follow safe maintenance procedures.”). The ANSI standard requires a “barrier” and here there was a barrier. The transformers were located within a cabinet, and the cabinet was the barrier. As Chief Inspector Smith testified, “the cabinet itself is the cover for those transformers. ... [Transformers of this nature don’t usually have a cover on them. Like I said, they 24 are in a control panel, which is the cover.” R. 299 (Smith EBT pg. 114); accord R. 618 (Garcia Aff. f 2) (“The steel cabinet is the cover for the transformer.”). The ANSI standard requires a barrier if “inadvertent contact with bare live parts during normal service and adjustment operation is considered probable” except during “troubleshooting,” R. 623. Notably, troubleshooting is what Chief Inspector Smith believed Mr. Bradley was doing at the time of the accident. See R. 309 (DOB Accident Report) (stating that the “#3 elevator’s fault log revealed a brake fault occurred at 1:30p.m. on 3/28/12, which appears to be the reason for the victim trouble shooting the elevator controller”). Second, ETL certified that the 1997 control cabinet complied with the ANSI standard. R. 618 (Garcia Aff. ]j 4); R. 624 (photograph of exemplar cabinet showing ETL certification). The O. Thompson controller “met this ANSI standard without a ‘barrier’ in the area of the transformer.” R. 618 (Garcia Aff. f 4). Third, although the cabinet complied with the ANSI standard, as ETL certified, no New York law or regulation requires compliance with this ANSI standard. “There is no ANSI standard adopted by NYC and incorporated into the NYC Elevator Code requiring a barrier between the transformers from the other components inside an elevator control cabinet. NYC has not adopted” ANSI A17.5 § 5.2. R. 618 (Garcia Aff. 2); see Huerta v. N.Y.C. Transit Auth., 290 A.D.2d 33, 35 n.l (1st Dept. 2001) (A17.5, of which § 5.2 is a part, is not among the ANSI 25 standards incorporated into the Elevator Code of New York City); Love v. N.Y.C. Hous. Auth., 251 A.D.2d 553, 554 (2d Dept. 1998).1 In Gonzalez v. City of New York, 109 A.D.3d 510 (2d Dept. 2013), the court held that it was error to allow plaintiff’s expert to testify that defendants’ conduct was negligent because it allegedly did not comply with ANSI standards. The court explained that the ANSI standards “do not constitute statutes, ordinances, or regulations” and the admission of the expert’s testimony “allowed the jury to improperly speculate that the defendant’s conduct should be measured against a Id. at 512.higher standard of care than is required under the common law.” Likewise here, ANSI standard A17.5 § 5.2 is not the law of the State or City of New York and compliance with that standard is not the test for negligence. Since ANSI A17.5 § 5.2 is not a statute, ordinance, or regulation and has not been incorporated into any law of New York State or City, a failure to comply with that ANSI standard can be considered (at most) some evidence of negligence only if that standard represents “the general custom or usage in the industry.” Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 337, 493 N.E.2d 920, 925 (1986); accord 1 Although NYC never adopted ANSI A17.5, in 2004 NYC adopted A17.1 1996 which included a requirement that all electrical equipment be properly certified as meeting the requirements of CSA B44.1/ASME A17.5. The 1997 O’Thompson controller was certified as meeting those requirements at the time of its installation. See A17.1 1996, Rule 210.4(b) Electrical Equipment and Wiring (“Electrical equipment shall be certified to the requirements of CSA B44.1/ASME A17.5”). 26 Fernandes v. Lawrence, 10 A.D.3d 382, 384 (2d Dept. 2004). But plaintiff offered not a shred of evidence on the general custom or usage in the industry. Olson, plaintiff’s putative expert, said absolutely nothing on this score. Chief Inspector Smith’s testimony, meanwhile, was that “transformers of this nature don’t usually have a cover on them. Like I said, they are in a control panel, which is the cover.” R. 299 (Smith EBT pg. 114). Fourth, the Building Defendants and United, who did not design or manufacture the control cabinet, were not qualified to alter the O. Thompson Company’s product even if they thought the transformers should have a barrier separating them from the other components in the control cabinet (which they did not). R. 618 (Garcia Aff.|5); see also R. 619-20 (Garcia Aff. 6-7). Indeed, for the purchaser of a control cabinet “to substitute its own opinion for that of the designing manufacturer as to which of their controller’s components should be isolated or covered would be dangerous.” R. 620 (Garcia Aff. 8). Plaintiff’s complaint that the control cabinet allegedly did not comply with the ANSI standard would have been better directed against O. Thompson Company in a products liability action, but plaintiff brought no such action. 27 CONCLUSION For the foregoing reasons, the Decision and Order of the IAS court should be reversed, and the defendants should be granted summary judgment dismissing the complaint. Dated: New York, New York May 24, 2017 Respectfully submitted, 1 Richard J. Sabatmy SABATINI & ASSOCIATES, L.L.P. 237 West 35th Street, Suite 1502 New York, New York 10001 (212) 239-5900 Attorneys for Defendants-Appellants 28 PRINTING SPECIFICATIONS STATEMENT PURSUANT TO 22 NYCRR § 600.10(D)(1)(V) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes, and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 6,916. 29 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION-FIRST DEPARTMENT X MARIE BRADLEY AS ADMINISTRATRIX FOR THE ESTATE OF EDWARD BRADLEY (DECEASED) AND MARIE BRADLEY, INDIVIDUALLY, Index No.: 157576-2012 PRE-ARGUMENT STATEMENT Plaintiff-Respondent, -against- HWA 1290 III LLC, HWA 1290 IV LLC and HWA 1290 V LLC and UNITED ELEVATOR CONSULTANTS SERVICE, INC., Defendants-Appellants. -X The title of the action is set forth in the above caption. The full names of the original parties are set forth in the above caption. Name, address and telephone number of counsel for appellants: Sabatini & Associates 237 West 35th Street - Suite 1502 New York, New York 10001 (212)239-5900 Name, address and telephone number of counsel for respondent: Schwartzapfel Lawyers P.C. 600 Old Country Road, Suite 450 Garden City, NY 11530 (516) 342-2200 The appeal is taken from an order of the Supreme Court, New York County. The action was brought to recover for the pain and suffering and wrongful death of 1. 2. 3. 4. 5. 6. plaintiffs decedent. The Court below granted defendants’ motion for summary judgment in part, and denied7. the motion in part. Appellants seek reversal of so much of the Court’s order as denied their motion for summary judgment, on the grounds that the Court misconstrued the facts and disregarded, or misapplied, the principles of law pertaining to the case. There is no related action or proceeding pending in any court in this or any other 8. 9. jurisdiction. Dated: New York, New York April 17,2017 Sabatini & Associates By: RichardTÿSabatini, Esq. Attorney for Defendants 237 W. 35th Street, Suite 1502 New York, NY 10001 (212)239-5900 SCH0442\APPCAL\PRn ARGUMENT STATEMENT 4-17-17 2