Hall v. New Jersey Transit et al

Filing 119

ORDER granting 73 Motion for Summary Judgment: For the foregoing reasons, Second Third-Party Defendant Otis motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 73, and to dismiss Defendant Otis Elevator Company from the case.. (Signed by Judge Lorna G. Schofield on 03/20/2015) (jcs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
LISA HALL,
:
Plaintiff,
:
:
-against:
:
NEW JERSEY TRANSIT, et al.,
:
Defendants. :
:
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3/20/15

13 Civ. 8633 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Lisa Hall asserts that Defendants New Jersey Transit’s (“NJ Transit”) and
National Railroad Passenger Corporation d/b/a Amtrak’s (“Amtrak”) negligence caused her
personal injuries. NJ Transit and Amtrak, as Third-Party Plaintiffs, have filed cross-claims
against Guardian Service Industries, Inc. (“Guardian”) for contribution, common law and
contractual indemnity, and breach of contract. Guardian, as Second Third-Party Plaintiff, has
filed cross-claims against Second Third-Party Defendant Otis Elevator Company (“Otis”) for
contribution, common law and contractual indemnity, and breach of contract.
Otis moves for summary judgment on all claims asserted by Guardian against it. Otis
also moves to dismiss Guardian’s breach of contract claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Guardian does not oppose Otis’ motion, but instead has submitted a
proposed stipulation to dismiss its claims against Otis without prejudice. In its reply, Otis
objects to the stipulation and states that it seeks summary judgment in order to dismiss
Guardian’s claims with prejudice. For the reasons below, Otis’ unopposed motion for summary
judgment is granted. Otis’ unopposed motion to dismiss is denied as moot.

I.

BACKGROUND
The facts are taken from Otis’ Local Rule 56.1 statement, submissions made in

connection with this motion, and the pleadings filed in this action. As required on this motion,
the facts are construed in favor of the non-moving party, Guardian.
In 2008, Guardian and NJ Transit entered into a contract for Guardian to provide
“Elevator/Escalator Maintenance” at New York Penn Station. Guardian and a third party then
entered into a contract for elevator/escalator maintenance at Penn Station. In or around June
2010, the third party assigned that contract to Otis, and Otis assumed responsibility for
maintaining the escalators at Penn Station. The contract provided in substance that Otis would
defend and indemnify Guardian for injuries arising out of or occurring in connection with the
execution of its work.
Otis serviced Escalator Unit 1B on December 22, 2010, and it examined that escalator on
December 23, 2010. Escalator Unit 1B was functioning properly at the time. Otis did not
receive any complaint about the condition or operation of Escalator Unit 1B between December
23, 2010, and the early morning hours of January 1, 2011.
On December 31, 2010, Plaintiff arrived at New York Penn Station around 11:30 p.m.
When her train to Newark, New Jersey, was announced, Plaintiff waited for the crowd to
“dissipate[] a little bit” before proceeding towards her train on Track 2. When Plaintiff was
approximately halfway down Escalator Unit 1B, she heard someone yell that the escalator was
backed up and that people should go back upstairs. In response, Plaintiff turned around to head
back up, but “there were so many people that [she] fell.” Others fell on her. As the escalator
continued to operate in the descending direction, Plaintiff slid feet first to the bottom of the
escalator. The escalator came to a stop after someone yelled out “push the red button.”
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II.

LEGAL STANDARD
The standard for summary judgment is well established. Summary judgment is

appropriate where the record before the Court establishes that there is no “genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine dispute as to a material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Courts must construe the evidence in the light most favorable to the
nonmoving party and must draw all reasonable inferences in the nonmoving party’s favor. See
id. at 255.
A “non-response” entitles a court to deem any “unresponded-to statements of undisputed
facts proffered by the movant [as] . . . admitted.” Jackson v. Fed. Express, 766 F.3d 189, 194
(2d Cir. 2014). However, even “when a party . . . fails to respond to an opponent’s motion for
summary judgment, a district court . . . must examine the movant’s statement of undisputed facts
and the proffered record support and determine whether the movant is entitled to summary
judgment.” Id. at 197.
III.

DISCUSSION
Otis meets its burden of showing that it is entitled to summary judgment on all of

Guardian’s claims.
A. Contribution and Indemnification
Guardian’s claims for contribution and common law indemnification both fail because
Otis did not breach any purported duties that it owed Guardian or Plaintiff. Under New York
law, a claim for contribution requires that “two or more tort-feasors share in responsibility for an
injury, in violation of duties they respectively owed to the injured person.” Garrett v. Holiday
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Inns, Inc., 447 N.E.2d 717, 776 (N.Y. 1983) (citation and internal quotation marks omitted); see
also N.Y. C.P.L.R. § 1401 Practice Commentaries C1401:3 (McKinney’s 2013) (“A tortfeasor’s
liability for contribution may flow from either of two sources: breach of a duty to the plaintiff
[the injured party] or to the party seeking contribution.” (emphasis added)). Similarly, commonlaw indemnification “imposes indemnification obligations upon those actively at fault in
bringing about the injury.” McCarthy v. Turner Constr., Inc., 953 N.E.2d 794, 799 (N.Y. 2011);
see also Jaikran v. Shoppers Jamaica, LLC, 925 N.Y.S.2d 596 (App. Div. 2011) (dismissing
claims for contribution and indemnification against escalator repair company because it owed no
duty to the plaintiffs). The undisputed fact is that Escalator Unit 1B was not defective and was
not the cause of Plaintiff’s injuries. Otis has met its burden of showing that these claims must be
dismissed as a matter of law.
Otis is also entitled to summary judgment on Guardian’s contractual indemnification
claim. Guardian alleges that Otis was responsible for repairing and maintaining Escalator Unit
1B and that Otis agreed to “defend and indemnify [Guardian] from all injuries[] arising out of or
occurring in connection with the execution of [Otis’] work.” There is no dispute, however, that
Escalator Unit 1B was operating properly, was not defective, and Otis had no notice of any
defect. “When a claim is made that a duty to indemnify is imposed by an agreement, that
agreement must be strictly construed so as not to read into it any obligations the parties never
intended to assume.” Haynes v. Kleinewefers & Lembo Corp., 921 F.2d 453, 456 (2d Cir. 1990).
Otis is entitled to summary judgment on Guardian’s contractual indemnification claim as a
matter of law.

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B. Breach of Contract
Guardian alleges that Otis breached their agreement by failing to obtain insurance naming
Guardian as an additional insured and providing primary rather than excess coverage for
Guardian. Otis is entitled to summary judgment on this claim as well. A breach of contract
claim requires proof of: (1) a valid contract; (2) Guardian’s performance under the contract;
(3) Otis’ failure to perform its obligations under the contract; and (4) damages resulting from
Otis’ breach. See Fischer & Mandell LLP v. Citibank, N.A., 632 F.3d 793, 799 (2d Cir. 2011).
Otis argues that it performed under the contract. This argument is well founded.
Guardian alleges that Otis was required to procure a policy that “shall be primary insurance and
that any other insurance carried by [Guardian] shall be excess of all other insurance carried by
[Otis].” The endorsement filed by Otis specifically provides that “any coverage provided to an
additional insured shall be excess over any other valid and collectible insurance available to the
additional insured, whether primary, excess, contingent or on any other basis unless,” as here, “a
written contract or written agreement specifically requires that this insurance apply on a primary
or non-contributory basis.”
For these reasons, Otis’ motion for summary judgment on Guardian’s breach of contract
claim is granted. Otis’ motion to dismiss the same claim is denied as moot.
IV.

CONCLUSION
For the foregoing reasons, Second Third-Party Defendant Otis’ motion for summary

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judgment is GRANTED. The Clerk of Court is directed to close the motion at Docket
Number 73, and to dismiss Defendant Otis Elevator Company from the case.
SO ORDERED.
Dated: March 20, 2015
New York, New York

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