| Bevens v Tarrant Mfg. Co., Inc. |
| 2008 NY Slip Op 01476 [48 AD3d 939] |
| February 21, 2008 |
| Appellate Division, Third Department |
| Frank Bevens, Respondent, v Tarrant Manufacturing Company,Inc., Doing Business as Tarco, et al., Defendants, and All-Lifts, Inc., Appellant. (And aThird-Party Action.) |
—[*1] Buckley, Mendleson, Criscione & Quinn, P.C., Albany (John J. Criscione of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (McNamara, J.), entered January 11,2007 in Albany County, which, among other things, denied a motion by defendant All-Lifts, Inc.for summary judgment dismissing the third amended complaint and all cross claims against it.
Plaintiff has been employed by third-party defendant, Columbia County, since 1990 as alaborer in the parts department. Since 1993, as part of his duties, he worked as a wingman onplow trucks during the winter, which involved assisting the driver by operating the wing plow. InDecember 2002, upon completion of a plow run, plaintiff and the driver were in the process ofstoring their truck when a wire rope that suspended the wing plow snapped, causing the plow toswing from the side of the truck and pin plaintiff's leg. Plaintiff sustained serious injuries as aresult of the accident, which led to the amputation of his right leg below the knee.[*2]
In October 2003, plaintiff commenced this action againstdefendant Tarrant Manufacturing Company, Inc., the manufacturer of the plow truck, anddefendant All-Lifts, Inc. (hereinafter defendant), which plaintiff suspected of supplying the wirerope that snapped. Tarrant thereafter brought a third-party action against the County. Duringdiscovery, plaintiff identified others who may have been the source of the wire rope and,therefore, he eventually filed and served a third amended summons and complaint naming otherparties as defendants. Thereafter, the various defendants answered and maintained cross claimsagainst each other. Following discovery, defendant moved for summary judgment dismissingplaintiff's third amended complaint and all cross claims against it. Plaintiff opposed such motion,as did defendant Fehr Bros. Industries, Inc., which was brought into the action only as of the thirdamended complaint. Supreme Court denied defendant's motion, and this appeal ensued.
Defendant asserts that Supreme Court should have granted its motion for summaryjudgment because plaintiff cannot establish by competent proof that the wire rope that causedplaintiff's injuries was supplied by defendant. Here, the court properly found that defendant metits initial burden by producing competent evidence that it was not the supplier of the subject wirerope (see Abulhasan vUniroyal-Goodrich Tire Co., 14 AD3d 900, 901 [2005]; Baum v Eco-Tec, Inc., 5 AD3d842, 843-844 [2004]; see alsoEbenezer Baptist Church v Little Giant Mfg. Co., Inc., 28 AD3d 1173, 1173-1174[2006]). Defendant proffered an expert affidavit stating that most general purpose wire ropesmanufactured domestically contain internal and external markers identifying the manufacturerand, after a detailed examination, the expert found no such markers on the subject wire rope,likely indicating that it was of foreign manufacture. Indeed, Fehr's expert also stated that thepresence or absence of a marker is an important consideration in determining the identity andsource of a wire rope. Sales records supplied by defendant indicated that the only wire rope itsold to the County was supplied by domestic manufacturers and, moreover, defendant's expertopined with a reasonable degree of engineering certainty that the wire rope was not manufacturedby Bridon American, the supplier of three of the four reels of wire rope sold by defendant to theCounty. More significantly, defendant introduced detailed maintenance logs maintained by theCounty that are devoid of any reference to the wire rope ever having been replaced on the subjecttruck, despite the fact that Tom Harmon, the County's garage supervisor, testified that, had thewire rope ever been replaced, he would expect it to appear in the maintenance logs.With defendant having met its burden, plaintiff was then required to establish that it was"reasonably probable, not merely possible or evenly balanced, that the defendant was the sourceof the offending product" such as to establish a triable issue of fact (Healey v Firestone Tire& Rubber Co., 87 NY2d 596, 601-602 [1996]; see Abulhasan v Uniroyal-Goodrich TireCo., 14 AD3d at 901-902; Moffett v Harrison & Burrowes Bridge Contrs., 266AD2d 652, 654 [1999]). Contrary to Supreme Court, we find that plaintiff failed to establish atriable issue of fact. Plaintiff stated at his deposition that he did not know the origin of the wirerope on the truck at the time of the incident or whether it was the original equipment or areplacement. He also stated that he did not remember the truck ever having been sent to thegarage to have the wire rope replaced, nor did he ever remember seeing a new wire rope on thetruck. Moreover, plaintiff's answer to defendant's interrogatories indicated that he had no recordsconcerning whether defendant's wire rope was installed on the plow, and his answer to Fehr'sinterrogatories similarly stated that he could not determine from whom or when the wire rope inquestion was purchased.
Likewise, Harmon testified that he could not recall if the wire rope had ever been replaced.Harmon also stated that he did not know if the wire rope in question was supplied by [*3]defendant.[FN*]Accordingly, as the proffers of plaintiff and Fehr merely raised a possibility that the subject wirerope might have been supplied by defendant, we find that plaintiff, and defendant with regard toany cross claims, has failed to demonstrate a reasonable probability that defendant supplied thewire rope that caused plaintiff's injury and, thus, summary judgment in defendant's favor isappropriate (see Healey v Firestone Tire & Rubber Co., 87 NY2d at 601-602;Abulhasan v Uniroyal-Goodrich Tire Co., 14 AD3d at 901-902).
Nor do we find summary judgment for defendant to be premature. A motion for summaryjudgment is premature "when the nonmoving party has not been given reasonable time andopportunity to conduct disclosure relative to pertinent evidence" (Metichecchia v Palmeri, 23 AD3d894, 895 [2005]; see Catena vAmsterdam Mem. Hosp., 6 AD3d 1037, 1039 [2004]). Speculation by the opposingparty will not suffice and, thus, such party must demonstrate how further discovery might revealmaterial facts in the exclusive knowledge of the movant or a codefendant (see Metichecchia vPalmeri, 23 AD3d at 895; Pampris vEgnasher, 20 AD3d 746, 747 [2005]; Scofield v Trustees of Union Coll. in Town ofSchenectady, 267 AD2d 651, 652 [1999]).
Here, plaintiff has not alleged that there are any facts within the exclusive knowledge ofdefendant or any other party that would raise an issue of fact with regard to the origin of thesubject wire rope. Plaintiff and Fehr asserted before Supreme Court that they did not have theopportunity to depose either an employee of defendant or its expert witness. However, it is highlyimprobable that either of these two depositions would provide any information as to whether andwhen the wire rope on the subject truck had ever been replaced. Likewise, plaintiff takes issuewith the fact that defendant has not produced records of any wire rope sales to the Countypredating 1996. Once again, the production of these records, if any existed, would shed no lighton whether the wire rope had ever been replaced and, furthermore, such information could not besaid to be in the exclusive knowledge of defendant, inasmuch as the County is just as likely tohave records from such sales, had any taken place. Tellingly in this regard, plaintiff's oppositionpapers to the instant motion stated that, further discovery would "hopefully" discern the origin ofthe subject wire rope. As such, we find that defendant's motion for summary judgment was notpremature.
As we deem summary judgment appropriate for the foregoing reasons, we need not reach theremainder of the parties' contentions.
Mercure, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order ismodified, on the law, with costs to defendant All-Lifts, Inc., by reversing so much thereof asdenied said defendant's motion; motion granted, summary judgment awarded to said defendant,and third amended complaint and all cross claims dismissed against it; and, as so modified,affirmed.
Footnote *: Although an investigative reportgenerated by the Department of Labor subsequent to the incident identified the wire rope as beingmanufactured by Bridon American and supplied by defendant, that information was attributed toHarmon, who later testified under oath that he did not know the origin. Notably, that report alsostated that it could not be determined if or when the wire rope was replaced.