| Beazer v New York City Health & Hosps. Corp. |
| 2010 NY Slip Op 06284 [76 AD3d 405] |
| August 3, 2010 |
| Appellate Division, First Department |
| Edward Beazer, Respondent, v New York City Health andHospitals Corporation et al., Defendants, and Bey's Contracting, Inc.,Appellant. |
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Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 15, 2009,which, inter alia, denied defendant Beys Contracting Inc.'s (Beys) motion for summary judgmentdismissing the common-law negligence cause of action as against it, affirmed, without costs.
Plaintiff was an employee of the construction manager for a project at Bellevue Hospital. Hewas injured while using an unguarded power grinder, which was owned by Beys, to cut exposedsteel from a concrete floor. Conflicting testimony as to whether plaintiff selected the grinderfrom his employer's gang box or was given it by Beys presents an issue of fact whether there wasa bailment of the grinder. If there was a bailment, a further triable issue arises as to whether thebailment was one for the mutual benefit of Beys and plaintiff's employer, which would renderBeys liable to plaintiff for injuries caused by its negligence in providing him with dangerousequipment, notwithstanding that the defect was patent (see Fili v Matson Motors, 183AD2d 324, 328-329 [1992]; Dufur v Lavin, 101 AD2d 319, 324 [1984], affd 65NY2d 830 [1985]; see also Ruggiero v Braun & Sons, 141 AD2d 528 [1988], lvdenied 73 NY2d 707 [1989]). Vargas v New York City Tr. Auth. (60 AD3d 438 [2009]) isinapposite, as the ladder lent to the plaintiff by the contractor (Atlantic) dismissed from that casewas not alleged to be defective, unlike the grinder at issue here. In addition, Atlantic had nointerest in the task the Vargas plaintiff was performing. Furthermore, we do not"conflate[ ]" differing duties of care because the issue is whether, to the extent there was abailment and to the extent that bailment was one for mutual benefit as opposed to beinggratuitous, Beys discharged the higher duty of care it owed to plaintiff.
While we are in basic agreement with the principles enunciated by the dissent, we reach adifferent conclusion because, in our view, there is an issue of fact whether the bailment(assuming there was one) was gratuitous or for mutual benefit. Significantly, it is [*2]undisputed that Beys was a contractor on the project for whichplaintiff's employer served as construction manager. Plaintiff, pursuant to an assignment from hisforeman, was using the grinder to perform a task in furtherance of that project, which Beys andplaintiff's employer arguably had a common interest in seeing to completion. In this regard, therecord indicates that plaintiff was using the grinder lent by Beys to finish a cement floor, andBeys was the contractor responsible for tiling the floors. Thus, inapposite are cases in which therecord established as a matter of law that the bailment was gratuitous in that the bailee was notusing the item to accomplish a purpose of mutual benefit to both bailor and bailee (seeAcampora v Acampora, 194 AD2d 757 [1993], lv denied 82 NY2d 664 [1994][shotgun lent for hunting excursion]; Ruggiero v Braun & Sons, 141 AD2d at 529 [meatgrinder lent by one provisions dealer to another]).
In fact, comparative analysis of the situation at bar with Acampora andRuggiero, the two Second Department cases upon which the dissent relies, providessupport for the conclusion we reach. In Acampora, the plaintiff borrowed a shotgun fromthe defendant, his father, to go hunting with a friend in November 1985; the defendant hadpurchased the shotgun in the early 1960s. During the hunt, the plaintiff was injured when theshotgun malfunctioned. In concluding that the trial court had charged the jury on the appropriatestandard of care, the Second Department stated: "Under these circumstances, it is clear that theloan of the shotgun was a gratuitous bailment" (194 AD2d at 758). The borrowing of a shotgunto go hunting is in no way akin to the present plaintiff's use of a grinder borrowed from Beys towork on the building that both Beys and plaintiff were in the midst of building. Similarly, inRuggiero, the plaintiff, an employee of Meatland, sued Braun for injuries she sustainedfrom a meat grinding machine that Braun had lent to Meatland while the latter's grinder wasbeing repaired. The Second Department held that the evidence was insufficient to support aconclusion that the lending of the meat grinder was a bailment for mutual benefit. Again, andunlike the instant case, Meatland and Braun were not engaged in a common task or seeking toaccomplish a common purpose.
The court properly permitted plaintiff to submit a surreply in response to Beys's reply papers,which advanced a certain argument for the first time through a supplemental affidavit by itsexpert (see CPLR 2214 [c]; Matter of Kushaqua Estates v Bonded Concrete, 215AD2d 993, 994 [1995]).
We have considered Beys's remaining contentions and find them unavailing.Concur—Friedman, J.P., DeGrasse and Abdus-Salaam, JJ.
Catterson and Acosta, JJ., dissent in a memorandum by Catterson, J., as follows: Because Ibelieve that there is no material issue of fact on the issue of bailment, I respectfully dissent andwould grant summary judgment to defendant Beys.
A brief review of the law of bailments is necessary to a resolution of this case because the[*3]majority has not set forth any principles of bailments thatwould control the outcome of this dispute. "As this Court stated in Martin v Briggs (235AD2d 192, 197): 'A "[b]ailment does not necessarily and always, though generally, depend upona contractual relation. It is the element of lawful possession, however created, and duty toaccount for the thing as the property of another that creates the bailment, regardless of whethersuch possession is based on contract in the ordinary sense or not." (Foulke v New YorkConsolidated R.R. Co., 228 NY 269, 275.) A bailment "may arise from the bare fact of thething coming into the actual possession and control of a person fortuitously, or by mistake as tothe duty or ability of the recipient to effect the purpose contemplated by the absolute owner."(Phelps v People, 72 NY 334, 358.) A bailment "may be created by operation of law. It isthe element of lawful possession, and the duty to account for the thing as the property of another,that creates the bailment, whether such possession results from contract or is otherwise lawfullyobtained. It makes no difference whether the thing be intrusted to a person by the owner or byanother. Taking lawful possession without present intent to appropriate creates a bailment." ' "(Pivar v Graduate School of Figurative Art of N.Y. Academy of Art, 290 AD2d 212,212-213 [1st Dept 2002].)
It is beyond dispute that "[a] gratuitous bailment is, by definition, the transfer of possessionor use of property without compensation." (Fili v Matson Motors, 183 AD2d 324, 328[4th Dept 1992]; see also Leventritt vSotheby's, Inc., 5 AD3d 225 [1st Dept 2004].)
A bailment for hire for the mutual benefit of both parties, on the other hand, requires thesame transfer of possession or use of property, but either payment by the bailor to the bailee or atangible benefit conferred upon both parties by nature of the bailment itself. (Fili, 183AD2d at 328-329; see e.g. Mack v Davidson, 55 AD2d 1027 [4th Dept 1977]; JaysCreations v Hertz Corp., 42 AD2d 534 [1st Dept 1973].)
In the instant case, plaintiff contends, and the majority accepts the premise, that thedefendant Beys, as bailor, may be liable to plaintiff, as bailee, for an injury sustained by plaintiffwhile using the very article that was the subject of the bailment. In my view, this theoryconflates the duty of care imposed on the bailee with respect to the chattel bailed, with that of theduty of the bailor to third parties to create a theory of liability on the bailor for personal injury tothe bailee.
In a gratuitous bailment, the bailee is only liable to the bailor for the bailee's "gross orwanton negligence." (Linares v Edison Parking, 97 Misc 2d 831, 832 [Civ Ct, NYCounty 1979].) This is normally applied to the bailee's conduct concerning the bailed chattelitself. I could find no authority for the proposition that the bailor owes a bailee any concomitantduty in a gratuitous bailment, but for a duty to warn of known defects that were not readilydiscernable. (Acampora v Acampora, 194 AD2d 757 [2d Dept 1993], lv denied82 NY2d 664 [1994].)
In a bailment for hire for the mutual benefit of both bailor and bailee, the Third Departmenthas held that the bailor "who supplied the chattel for his own business purpose[ ] owes [*4]a duty to exercise reasonable care to make the chattel safe for theintended use." (Snyder v Kramer, 94 AD2d 860, 861 [3d Dept 1983]; see Dufur vLavin, 101 AD2d 319 [3d Dept 1984], affd 65 NY2d 830 [1985].) Initially, it shouldbe noted that no other Department has articulated this standard vis-à-vis the bailor's dutyto the bailee. The standard of reasonable care running from bailor to bailee articulated inSnyder and Dufur seems to be derived from the line of cases imposing such aduty on a bailor with respect to third parties, or a commercial lessor "in the business ofplacing products into the stream of commerce." (Winckel v Atlantic Rentals & Sales,159 AD2d 124, 129 [2d Dept 1990].) Neither scenario is presented here.
In my view, Beys at best was either a gratuitous bailor or a casual lessor of the grinder. Assuch, while Beys could only be "liable for ordinary negligence on a theory of failure to warn,'[a]t most, the duty of a casual or occasional seller [or lessor] would be to warn the person towhom the product is supplied of known defects that are not obvious or readily discernable.' "(Burns v Haines Equip., 284 AD2d 922, 923 [4th Dept 2001], quoting Sukljian vRoss & Son Co., 69 NY2d 89, 97 [1986] [no liability where safety guard obviously removedfrom loading machine]; see also Ruggiero v Braun & Sons, 141 AD2d 528 [2d Dept1988], lv denied 73 NY2d 707 [1989] [no liability where safety guard removed frommeat grinder, danger was patent]; Sofia v Carlucci, 122 AD2d 263 [2d Dept 1986] [noliability where absence of safety railings was patent].)
Consistent with the above precedent is the principle that there is no duty to warn where "theinjured party is already aware of the specific hazard." (Yong Hwan Chae v Lee Natl.Corp., 261 AD2d 240, 240 [1st Dept 1999] [internal quotation marks omitted].)
Plaintiff testified that he was fully aware that the grinder was missing its original safetyguard at the time he received it from Beys. Indeed, this case is factually indistinguishable fromRuggiero and Sofia, where the Second Department found no liability on behalfof the bailor. Thus, whether it is a gratuitous bailment or a casual lease of the grinder, Beys hadno duty to warn plaintiff of the missing guard.
The majority's contention that "[p]laintiff . . . was using the grinder to performa task in furtherance of [the] project, which Beys and plaintiff's employer arguably had acommon interest in seeing to completion," simply has no support in the record but for plaintiff'scounsel's argument. An examination of the record citation behind plaintiff's position that Beyswould suffer adverse financial consequences if plaintiff did not perform his own work usingBeys's grinder discloses only that the construction manager was responsible to coordinate thetrades and "take the necessary measures to eliminate the circumstances which may lead to adelay." Indeed, the record contains the contract between the owner and the constructionmanager, but no complete contract for Beys. Similarly, no one, including the majority, cites toany Beys contract provision which supports the novel proposition that Beys, as a subcontractor,was in some way united with all of the other subcontractors and the construction manager in"common interest."
Finally, in attempting to distinguish Acampora and Ruggiero, because theydid not involve a mutual benefit, the majority draws the wrong lesson from both cases. Bothcases, as well as the remaining precedent cited above, stand for the proposition that withoutproof of record of a tangible financial benefit to the bailor [*5]from the bailment itself, the bailor's duty is limited to the abovedescribed duty to warn. [Prior Case History: 2009 NY Slip Op 31291(U).]