| Altinma v East 72nd Garage Corp. |
| 2008 NY Slip Op 07202 [54 AD3d 978] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Nader Altinma, Respondent-Appellant, v East 72nd GarageCorp., Respondent-Appellant, and Ace Overhead Garage Door, Inc., et al., Defendants andThird-Party Plaintiffs Appellants-Respondents. Glenwood Management Corp., Third-PartyDefendant Appellant-Respondent; Humphrey Man-Lift Corp., Third-PartyDefendant-Respondent, et al., Third-Party Defendant. |
—[*1] Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y. (Michael A. Heran andRoseanne DeBellis of counsel), for defendant third-party plaintiff-appellant-respondent. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser andSusan M. Jaffe of counsel), for plaintiff-respondent-appellant. Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Kenneth S. Merber of counsel), fordefendant-respondent-appellant. Downing & Peck, P.C., New York, N.Y. (John M. Downing, Jr., of counsel), for secondthird-party defendant-respondent.
In an action to recover damages for wrongful death, etc., (1) the defendant and third-partyplaintiff, Ace Overhead Garage Door, Inc., appeals, as limited by its brief, from so much of anorder [*2]of the Supreme Court, Queens County (Dorsa, J.),entered November 22, 2006, as denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it, (2) the defendant and third-party plaintiff, CharlesCalderone Associates, Inc., separately appeals, as limited by its brief, from so much of the sameorder as denied its cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it, (3) the third-party defendant, Glenwood Management Corp.,separately appeals from the same order, (4) the plaintiff cross-appeals, as limited by her brief,from so much of the same order as granted that branch of the motion of the defendant East 72ndGarage Corp. which was for summary judgment dismissing the complaint insofar as assertedagainst it and granted the motion of the third-party defendant Humphrey Man-Lift Corp. forsummary judgment dismissing the second third-party complaint, and (5) the defendant East 72ndGarage Corp. separately cross-appeals, as limited by its brief, from so much of the same order asdenied that branch of its motion which was for summary judgment dismissing all cross claims forcontribution and indemnification insofar as asserted against it.
Ordered that the separate appeal by Glenwood Management Corp. is dismissed as abandoned(see 22 NYCRR 670.8 [e]); and it is further,
Ordered that the order is reversed insofar as appealed from by Ace Overhead Garage Door,Inc., and Charles Calderone Associates, Inc., on the law, without costs or disbursements, themotion of Ace Overhead Garage Door, Inc., for summary judgment dismissing the complaintinsofar as asserted against it is granted and the cross motion of Charles Calderone Associates,Inc., for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst it is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from, without costs ordisbursements.
On January 9, 2000, the plaintiff's decedent, Lafortune Altinma, sustained fatal injuries whenhe was allegedly pinned beneath a single-person vertical transportation device known as"man-lift" at the Somerset Garage in Manhattan. There were no witnesses to the accident.
The plaintiff commenced this action against the defendant East 72nd Garage Corp.(hereinafter East 72nd Garage), which held a license for the Somerset Garage, Ace OverheadGarage Door, Inc. (hereinafter Ace), which repaired the man-lift on an "as-needed" basis prior tothe accident, and Charles Calderone Associates, Inc. (hereinafter Calderone), which performedannual inspections of the man-lift pursuant to Local Law No. 10 (1981) of City of New York.The plaintiff also commenced a separate action, under a separate index number, againstHumphrey Man-Lift Corp. (hereinafter Humphrey), the manufacturer of the lift, sounding in,inter alia, strict products liability. Calderone commenced a third-party action against GlenwoodManagement Corp. (hereinafter Glenwood), the managing agent for the Somerset Garage.Glenwood commenced a second third-party action against Humphrey. Ace commenced a thirdthird-party action against Glenwood and East 72nd Realty, LLC, which owned the premises andequipment at Somerset Garage.
The Supreme Court erred in denying Ace's motion for summary judgment dismissing thecomplaint insofar as asserted against it. Ace demonstrated its prima facie entitlement to judgmentas a matter of law by submitting evidence that it owed no duty of care to the decedent (see Stiver v Good & Fair Carting &Moving, Inc., 9 NY3d 253, 256-257 [2007]; Church v Callanan Indus., 99 NY2d[*3]104 [2002]; Espinal v Melville Snow Contrs., 98NY2d 136 [2002]). In opposition, the plaintiff failed to raise a triable issue of fact (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]) as to whether Ace, in allegedlyfailing to exercise reasonable care in the performance of its duties, "launch[ed] a force orinstrument of harm" (see Church v Callanan Indus., 99 NY2d at 111 [citations omitted];Espinal v Melville Snow Contrs., 98 NY2d at 140). The Supreme Court's determinationthat, among other things, an issue of fact existed as to whether Ace negligently failed to warn thedecedent's employers regarding man-lift or elevator inspection requirements, arising from certainstatutory and industry standards, amounts to a finding that Ace merely may have failed to become"an instrument for good," which is insufficient to impose a duty of care upon a party not inprivity of contract with the injured party (Moch Co. v Rensselaer Water Co., 247 NY160, 168 [1928]).
Likewise, the Supreme Court erred in denying Calderone's cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it. Inopposition to Calderone's showing that it owed no duty of care to the decedent by virtue of itscontract to inspect the man-lift, the plaintiff failed to raise a triable issue of fact as to whetherCalderone "launch[ed] a force or instrument of harm" or whether the inspection contract entirelydisplaced the decedents' employers' duty to maintain the premises safely (Church v CallananIndus., 99 NY2d at 111-112; Espinal v Melville Snow Contrs., 98 NY2d at 140). Aswith the plaintiff's arguments addressed to Ace, her contention that Calderone failed to warn thedecedent's employers regarding certain statutory requirements and industry standards for theinspection of man-lifts or elevators was insufficient to raise a triable issue of fact. Moreover, thecontention that Calderone negligently inspected the man-lift is insufficient to raise a triable issueof fact, since the plaintiff submitted no evidence that Calderone's inspection made the man-liftless safe than it was beforehand (see Stiver v Good & Fair Carting & Moving, Inc., 9NY3d at 257).
The Supreme Court properly awarded summary judgment dismissing the complaint insofaras asserted against the defendant East 72nd Garage on the ground that it was barred by Workers'Compensation Law § 11. "A special employee is described as one who is transferred for alimited time of whatever duration to the service of another" (Thompson v GrummanAerospace Corp., 78 NY2d 553, 557 [1991]). "Many factors are weighed in decidingwhether a special employment relationship exists, and generally no one is decisive"(id. at558). One such factor, to which the Court of Appeals has assigned particular weight, "focuses onwho controls and directs the manner, details and ultimate result of the employee's work"(id.). Here, East 72nd Garage demonstrated, prima facie, that the decedent was hired andtrained by Glenwood, but later transferred to Somerset Garage to work under the direction andcontrol of East 72nd Garage employees. In opposition, the plaintiff failed to raise a triable issueof fact (see Zuckerman v City of New York, 49 NY2d at 562). Accordingly, the SupremeCourt properly held that the decedent's receipt of workers' compensation benefits from Glenwoodprecluded the plaintiff's action against East 72nd Garage (see Croche v Wyckoff Park Assoc.,274 AD2d 542 [2000]). Consequently, inasmuch as the decedent sustained a "grave injury"within the meaning of Workers' Compensation Law § 11, that branch of East 72ndGarage's motion which was for summary judgment dismissing cross claims asserted against it forindemnification and/or contribution was properly denied (cf. Pineda v 79 Barrow St. OwnersCorp., 297 AD2d 634 [2002]).
Finally, the Supreme Court properly granted Humphrey's motion for summary judgmentdismissing the second third-party complaint, which was based on a theory of strict productsliability. In opposition to Humphrey's prima facie demonstration of entitlement to judgment as amatter of law, no party raised a triable issue of fact as to whether Humphrey marketed a productwhich was [*4]not reasonably safe, and whether its allegedlydefective design was a substantial factor in causing the plaintiff's injury (see McAllister v Raymond Corp., 36AD3d 768 [2007]). We note that the plaintiff's proffer of evidence that the decedent'saccident may have occurred when a foreign object became lodged in one of the man-lift's safetydevices is not only speculative and unsupported by the record, but also amounts to a claim thatthe man-lift could have been made safer, which is insufficient to raise a triable issue of fact (see Aparicio v Acme Am. Repair, Inc.,33 AD3d 480 [2006]). As correctly noted by the Supreme Court, Humphrey "did nothave a duty to design invincible, fail-safe, and accident-proof products" (Mayorga vReed-Prentice Packaging Mach. Co., 238 AD2d 483, 484 [1997]). Mastro, J.P., Skelos,Covello and Leventhal, JJ., concur. [See 13 Misc 3d 1235(A), 2006 NY Slip Op52129(U).]