| Martinez v Hunts Point Coop. Mkt., Inc. |
| 2010 NY Slip Op 09351 [79 AD3d 569] |
| December 16, 2010)<> |
| Appellate Division, First Department |
| Hilario Martinez, Appellant-Respondent, v Hunts PointCooperative Market, Inc., Respondent, and Lisa Motor Lines et al., Respondents-Appellants. HuntsPoint Cooperative Market, Inc., Third-Party Plaintiff-Respondent, v Nebraskaland, Inc., et al.,Third-Party Defendants-Respondents. |
—[*1] Strongin Rothman & Abrams, LLP, New York (Bary S. Rothman of counsel), forrespondents-appellants. Cohen, Kuhn & Associates, New York (Steven Balson-Cohen of counsel), for Hunts PointCooperative Market, Inc., respondent. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Jacqueline Hattar of counsel), forNebraskaland, Inc. and Cornhusker Farms, Inc., respondents.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered on or about May 5,2009, which, insofar as appealed from as limited by the briefs, granted defendant-respondent's (HuntsPoint) motion for summary judgment dismissing the complaint and all cross claims as against it, anddenied defendants-appellants' (collectively LML) motion for summary judgment dismissing thecomplaint and all cross claims as against them, unanimously affirmed, without costs.
Plaintiff, a warehouse worker employed by third-party defendant Nebraskaland, a meat supplier,asserts that he was injured on Nebraskaland's premises when a steel wheel and hook, together with sixfrozen goat carcasses hanging from the hook, dislodged from the overhead rail, and hit him on theshoulder. Plaintiff sued Hunts Point, the out-of-possession landlord of the [*2]premises, and LML, a freight transporter hired by Nebraskaland's seller,whose workers, known as "lumpers," transferred the carcasses from the delivery truck to the hook andrail. The basis of the claim against Hunts Point is the allegation that the overhead rail system wasdefective in that the rail was bent, which allegedly created a tendency for the hook to dislodge. Thebasis for the claim against LML is the allegation that its workers loaded too many carcasses onto thehook.
Assuming in plaintiff's favor that Hunts Point was contractually obligated under Nebraskaland'slease to repair defects in the overhead rail system, the action must nevertheless be dismissed as againstHunts Point because, as the motion court found, plaintiff failed to adduce evidence sufficient to rebutHunts Point's prima facie showing that it did not have actual or constructive notice of the allegedlydangerous condition of the rail (see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 642-643[1996]). The prima facie showing was made out by the deposition testimony of Hunts Point's generalmanager, who had personal knowledge of nonroutine repair requests, and of Nebraskaland'svice-president of operations, each of whom testified that he never observed damage to the overheadrail system and never received any complaints about it up to the date of the accident (cf. Vaughan v 1720 Unico, Inc., 30 AD3d315 [2006]).[FN*]While this evidence may not affirmatively prove that no Hunts Point employee was ever told of the rail'scondition prior to the accident, our jurisprudence does not "require a defendant [moving for summaryjudgment] to prove a negative on an issue as to which [it] does not bear the burden of proof"(Strowman v Great Atl. & Pac. Tea Co., 252 AD2d 384, 385 [1998]; see also Wellington v Manmall, LLC, 70AD3d 401 [2010] ["a defendant is not required to prove lack of notice where the plaintiff has notpointed to any evidence of notice"]).
Plaintiff failed to raise an issue of fact in response to Hunts Point's prima facie showing that it didnot have actual or constructive notice of the alleged dangerous condition of the rail. Plaintiff argues thatactual notice was demonstrated by sworn statements of a coworker to the effect that, two monthsbefore the accident, the coworker overheard his supervisor complaining about the rail system on aphone call and that, after the call ended, the supervisor told the coworker that he had been speaking toan unidentified Hunts Point employee. Those statements are hearsay, however, insofar as they relate thesupervisor's identification of the other party to the conversation, and therefore cannot be the sole basisfor denying summary judgment (seeDiGiantomasso v City of New York, 55 AD3d 502, 503 [2008]). We note that the recorddoes not contain any deposition testimony or affidavit by the supervisor. Neither is an issue as to HuntsPoint's constructive notice of the alleged dangerous condition of the rail system raised by the number ofrepair calls Hunts Point made to the premises demised to Nebraskaland over the preceding year or bythe frequent visits made to the premises by the aforementioned Hunts Point general manager. None ofthe repair calls or visits concerned the rail, the alleged dislodging problem was intermittent, and theexistence of the problem would not have been obvious to the Hunts Point general manager (whodisclaimed expertise in dealing with rail systems) from a chance observation of the bent rail overhead(see Delosangeles v Asian Ams. for Equality,Inc., 40 AD3d 550, 552 [2007] [visibility of air conditioner that ultimately fell from windowdid not[*3]"suggest( ) that a dangerous condition was visible, let alonevisible and apparent" so as to give rise to constructive notice]; Hayes v Riverbend Hous. Co., Inc., 40 AD3d 500, 500 [2007] [to giverise to constructive notice, "(m)ere notice of a general or unrelated problem is not enough; the particulardefect that caused the damage must have been apparent"]).
Plaintiff's testimony that LML lumpers "always" loaded six carcasses onto the meat hooks raises anissue of fact as to whether the lumpers created the allegedly dangerous condition by overloading thehooks (see Signorelli v Great Atl. & Pac. TeaCo., Inc., 70 AD3d 439, 439-440 [2010]). LML's assertion that six carcasses would nothave created a dangerous condition is unsupported by expert affidavits and is otherwise conclusory.Absent argument from LML, we decline to consider the issue of whether LML made a delivery ofcarcasses to Nebraskaland on the date of plaintiff's accident. Concur—Tom, J.P., Friedman,Nardelli, Acosta and Abdus-Salaam, JJ.
Footnote *: Indeed, when asked at hisdeposition whether "on the date of the accident . . . the rack system [was] in goodoperational and mechanical condition," the Nebraskaland vice-president answered in the affirmative.