| Blazynski v A. Gareleck & Sons, Inc. |
| 2008 NY Slip Op 00902 [48 AD3d 1168] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Sally Ann Blazynski et al., Appellants, v A. Gareleck & Sons, Inc.,et al., Respondents, et al., Defendants. (Appeal No. 1.) |
—[*1] Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Kevin E. Loftus of counsel), fordefendant-respondent A. Gareleck & Sons, Inc. Nixon Peabody LLP, Buffalo (John J. Weinholtz of counsel), for defendant-respondentGenlyte Thomas Group LLC, incorrectly sued as two entities, Thomas Industries, Inc. andGenlyte Thomas Group LLC.
Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), enteredApril 25, 2006 in a personal injury action. The order granted the motions of defendants A.Gareleck & Sons, Inc., Thomas Industries, Inc. and Genlyte Thomas Group LLC for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this negligence and products liability action seekingdamages for injuries sustained by Sally Ann Blazynski (plaintiff), an employee at a Wegmansstore, when she slipped and fell on ice that had accumulated on the floor of a bakery departmentfreezer. After her fall, plaintiff noticed that there was water dripping off the light fixture on theceiling of the freezer. Plaintiffs alleged that defendants Thomas Industries, Inc. and GenlyteThomas Group LLC (collectively, Genlyte defendants) were negligent in their design,manufacture or installation of the light fixture, and that defendant A. Gareleck & Sons, Inc.(Gareleck), a plumbing contractor retained by Wegmans approximately two months prior toplaintiff's accident to investigate a problem with water dripping through the light fixture in thebakery freezer, also was negligent, inter alia, in failing to correct the condition that led to theformation of ice on the bakery freezer floor and in advising Wegmans that the condition wasremedied when in fact it was not. Several weeks after plaintiff's accident, the light fixture wasreplaced and apparently discarded by an electrician hired by Wegmans.[*2]
We conclude with respect to the order in appeal No.1 that Supreme Court properly granted the motion of the Genlyte defendants for summaryjudgment dismissing the complaint against them. Where a product defect must be provedcircumstantially because the product is unavailable, a defendant may satisfy its initial burden on asummary judgment motion by "offering evidence that the injuries were not caused by [its]product but by an entirely different instrumentality" (Speller v Sears, Roebuck & Co.,100 NY2d 38, 42 [2003]; see Ramirez vMiller, 29 AD3d 310, 313 [2006]). Contrary to plaintiffs' contention, the Genlytedefendants met their burden on the motion by submitting the affidavits of a mechanical engineerand its product engineering manager (cf. L.M.B. v Sevylor USA, Inc., 43 AD3d 1355 [2007]). Based ontheir inspection of the freezer, the two experts concluded that the condensation in the freezer andthe ice on its floor were not caused by the light fixture but, rather, were caused by Wegmansemployees who had left the freezer door open. Plaintiffs failed to raise an issue of fact sufficientto defeat the motion inasmuch as they failed to present competent evidence excluding the openfreezer door as the source of the water condensation and ice or identifying a specific defect in thelight fixture (see Speller, 100 NY2d at 42). Indeed, they established only that water wasobserved dripping from, off, or through the light fixture, and thus failed to "submit some directevidence that a defect existed" (Brown v Borruso, 238 AD2d 884, 885 [1997]), orcompetent evidence excluding all other causes of the ice not attributable to the Genlytedefendants, namely, the open freezer door (see Maciarello v Empire Comfort Sys., 16 AD3d 1009, 1011[2005]). Plaintiffs' contention that the motion of the Genlyte defendants should have been deniedbecause they failed to attach a copy of their answer is improperly raised for the first time onappeal, and we decline to review that contention (see Medina v MSDW 140 Broadway Prop., L.L.C., 13 AD3d 67[2004]; Patino v Lockformer Co., 303 AD2d 731, 733 [2003]; Panzella v Shop RiteSupermarkets, 238 AD2d 490 [1997]).We further conclude with respect to the order in appeal No. 1 that the court properly grantedthe motion of Gareleck for summary judgment dismissing the complaint and all cross claimsagainst it. Gareleck met its initial burden by establishing that it owed no duty of care to plaintiffas a result of its prior inspection of the bakery department freezer for plumbing problems (see Stiver v Good & Fair Carting &Moving, Inc., 32 AD3d 1209, 1210 [2006], affd 9 NY3d 253 [2007]; Achtziger v Merz Metal & Mach.Corp., 27 AD3d 1137, 1138 [2006]). "[A] contractual obligation, standing alone, willgenerally not give rise to tort liability in favor of a third party" (Espinal v Melville SnowContrs., 98 NY2d 136, 138 [2002]). In opposition, plaintiffs failed to raise an issue of factwhether an exception to that general rule applied, i.e., whether Gareleck assumed a duty of careto plaintiff by rendering services to Wegmans that negligently created or exacerbated theallegedly dangerous condition (see id. at 141-142; Church v Callanan Indus., 99NY2d 104, 111-112 [2002]; Achtziger, 27 AD3d at 1138).
Finally, we conclude with respect to the order in appeal No. 2 that the court properly deniedthe motion of plaintiffs for leave to renew their opposition to the motions of the Genlytedefendants and Gareleck. "A motion for leave to renew must be based upon new facts that wereunavailable at the time of the original motion" (Boreanaz v Facer-Kreidler, 2 AD3d 1481, 1482 [2003]) and, interalia, "that would change the prior determination" (CPLR 2221 [e] [2]). "Although a court hasdiscretion to 'grant renewal, in the interest of justice, upon facts which were known to the movantat the time the original motion was made' . . . , it may not exercise that discretionunless the movant establishes a 'reasonable justification for the failure to present such facts onthe prior motion' " (Robinson vConsolidated Rail Corp., 8 AD3d 1080 [2004]). Here, the affidavit of plaintiffs' expertsubmitted in support of plaintiffs' motion does not present new facts, nor have plaintiffs offered areasonable excuse for failing to submit the affidavit in opposition to the prior motions (seeConley v Central Sq. School Dist., 255 AD2d 981 [1998]; Welch Foods v Wilson,247 AD2d 830 [1998]). In any event, the conclusions in the affidavit of plaintiffs' expert arebased upon speculation and thus would not alter the outcome of the prior motions (seeGonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]; Cannarozzo v County of Livingston, 13AD3d 1180 [2004]). Present—Scudder, P.J., Smith, Centra, Lunn and Peradotto, JJ.