| Musilli v Kohler Co. |
| 2008 NY Slip Op 03895 [50 AD3d 1600] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Michael R. Musilli, Respondent, v Kohler Company et al.,Respondents, and South Professional Sales-Service Express et al.,Appellants. |
—[*1] Getnick Livingston Atkinson Gigliotti & Priore, LLP, Utica (Michael E. Getnick of counsel),for defendant-appellant Charles A. Harrington Associates, Inc. Brown Chiari LLP, Lancaster (Samuel J. Capizzi of counsel), for plaintiff-respondent. Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), fordefendants-respondents.
Appeals from an order of the Supreme Court, Erie County (John M. Curran, J.), enteredFebruary 7, 2007 in a personal injury action. The order, inter alia, denied the summary judgmentmotion of defendant Charles A. Harrington Associates, Inc.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedduring the course of his employment at a Home Depot store when a shower door manufacturedby defendant Kohler Company (Kohler) fell from its display and struck him. Supreme Courtproperly denied that part of the cross motion of defendant South Pro Sales, Inc., doing businessas Service Express, incorrectly sued as South Professional Sales-Service Express (South Pro),seeking summary judgment dismissing the supplemental complaint and cross claim of defendantCharles A. Harrington, Inc. (Harrington) with respect to the issue whether South Pro hadconstructive notice of the allegedly defective condition of the shower door display. We reject atthe outset the contention of South Pro that it did not owe a duty of care to plaintiff. The recordestablishes that South Pro had entered into a comprehensive service contract with Kohler [*2]that placed "full responsibility" on South Pro to ensure, inter alia,that the Kohler shower door displays were in safe condition and in full repair. The contractfurther required South Pro to inspect the displays at the subject Home Depot store every twoweeks, to establish a strong working relationship with that store and to train Home Depot'smanagement with respect to Kohler's products. We thus conclude that, based on the terms of thecontract between South Pro and Kohler, there is an issue of fact on the record before us whetherSouth Pro's contract with Kohler was so " 'comprehensive and exclusive' [that it]. . . entirely displaced [Home Depot's] duty to maintain the premises safely"(Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002], quoting Palka vServicemaster Mgt. Servs. Corp., 83 NY2d 579, 588 [1994]).
Contrary to the further contention of South Pro, the court properly concluded that it failed toestablish as a matter of law that it lacked constructive notice of the allegedly defective conditionof the shower door display (see generally Zuckerman v City of New York, 49 NY2d 557,562 [1980]). It is undisputed that the shower door that struck plaintiff was attached to the displaywith self-tapping screws and that such screws were insufficient to secure the display. BecauseSouth Pro was required by its contract with Kohler to inspect the display every two weeks, weagree with the court that there is an issue of fact whether South Pro had constructive notice of thedefective condition of the display (see generally Atkinson v Golub Corp. Co., 278 AD2d905, 905-906 [2000]).
The court also properly denied the motion of Harrington, Kohler's representative to thesubject Home Depot store prior to South Pro, seeking summary judgment dismissing thesupplemental complaint and cross claim of South Pro against it. Harrington failed to meet itsinitial burden of establishing that it did not owe a duty of care to plaintiff, inasmuch as it failed toestablish in support of its motion that it did not install the shower door display and thus that it didnot " 'launch[ ] a force or instrument of harm' " (Espinal, 98 NY2d at 140). We furtherconclude that Harrington failed to establish as a matter of law that it did not create the allegedlydefective condition and that it did not have actual or constructive notice of that condition (seegenerally Atkinson, 278 AD2d at 905-906). Present—Martoche, J.P., Centra, Lunn,Fahey and Gorski, JJ.