| Cerrato v Rapistan Demag Corp. |
| 2011 NY Slip Op 03793 [84 AD3d 714] |
| May 3, 2011 |
| Appellate Division, Second Department |
| John Cerrato, Respondent, v Rapistan Demag Corp. et al.,Respondents, Conveyor Services & Installations Co., Appellant-Respondent, and Conveyor Storeet al., Respondents-Appellants, et al., Defendant. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Michael K.Berman and Marcia Raicus of counsel), for respondent-appellant Conveyor Store. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Patrick J. Lawless andJames Tyrie of counsel), for respondents-appellants Herman Merinoff, Drucker-Merinoff Trust,and Drucker Trust. G. Ronald Hoffman, Bay Shore, N.Y., for plaintiff-respondent. Braff, Harris & Sukoneck, New York, N.Y. (Gloria B. Cherry of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, the defendant Conveyor Services &Installations Co. appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Tanenbaum, J.), dated February 2, 2010, as denied its cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, thedefendant Conveyor Store cross-appeals, as limited by its brief, from so much of the same orderas denied its separate cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it and granted that branch of the motion of the defendantsRapistan Demag Corp., Rapistan Demag Limited, and Mannesmann Dematic Rapistan Corp.,which was for summary judgment dismissing its cross claims insofar as asserted against thosedefendants, and the defendants Herman Merinoff, Drucker-Merinoff Trust, and Drucker Trustseparately cross-appeal, as limited by their brief, from so much of the same order as denied theirseparate cross motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provisions thereof denying therespective cross motions of the defendants Herman Merinoff, Drucker-Merinoff Trust, andDrucker Trust, and the defendant Conveyor Services & Installations Co., for summary judgment[*2]dismissing the complaint and all cross claims insofar asasserted against them, and substituting therefor a provision granting the cross motions; as somodified, the order is affirmed insofar as appealed from, with one bill of costs to the defendantsHerman Merinoff, Drucker-Merinoff Trust, and Drucker Trust and the defendant ConveyorServices & Installations Co., appearing separately and filing separate briefs, payable by theplaintiff, one bill of costs to the plaintiff, payable by the defendant Conveyor Store, and one billof costs to the defendants Rapistan Demag Corp., Rapistan Demag Limited, and MannesmannDematic Rapistan Corp., payable by the defendant Conveyor Store.
The plaintiff, while working in a bottle-distribution plant, allegedly was injured when he fellfrom the edge of a platform located in a second-level conveyor system area. The platform wasunguarded and created an opening to the lower level. The plaintiff commenced this actionagainst, among others, the defendants Herman Merinoff, Drucker-Merinoff Trust, and DruckerTrust (hereinafter collectively the Trust defendants), alleging that they owned the premises wherethe accident occurred, and against Convey or Store, Inc., sued herein as the Conveyor Store(hereinafter the store), and Conveyor Services & Installations Co. (hereinafter ConveyorServices), alleging that they designed, fabricated, installed, and retrofitted the subject conveyorsystem, including the unguarded platform from which he fell. In addition, the plaintiff assertedcauses of action against Rapistan Demag Corp., Rapistan Demag Limited, and MannesmannDematic Rapistan Corp. (hereinafter collectively the Rapistan defendants), which manufacturedparts and components of the conveyor system. The plaintiff alleged, inter alia, that the platformwas defective because it created a fall hazard.
"As a general rule, liability for a dangerous condition on real property must be predicatedupon ownership, occupancy, control, or special use of that property" (Gover v Mastic Beach Prop. OwnersAssn., 57 AD3d 729, 730 [2008]; see Morrison v Gerlitzky, 282 AD2d 725[2001]; Millman v Citibank, 216 AD2d 278 [1995]). "Where none of these factors arepresent, a party cannot be held liable for injuries caused by the allegedly defective condition"(Gover v Mastic Beach Prop. Owners Assn., 57 AD3d at 730; see Dugue v 1818Newkirk Mgt. Corp., 301 AD2d 561, 562 [2003]; Aversano v City of New York, 265AD2d 437 [1999]). Here, the Trust defendants established their prima facie entitlement tojudgment as a matter of law by demonstrating that they did not own, occupy, control, or havespecial use of the premises where the accident occurred (see Cortez v Northeast Realty Holdings, LLC, 78 AD3d 754, 757[2010]). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v Cityof New York, 49 NY2d 557 [1980]). Accordingly, the Supreme Court should have grantedthe Trust defendants' cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them.
Further, Conveyor Services established its prima facie entitlement to judgment as a matter oflaw by demonstrating that it did not design, fabricate, install, or retrofit the subject platform fromwhich the plaintiff fell. In opposition, the plaintiff failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Courtshould have granted the cross motion of Conveyor Services for summary judgment dismissingthe complaint and all cross claims insofar as asserted against it.
However, the Supreme Court properly denied the store's cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, as the store failed toestablish its prima facie entitlement to such relief (id.). The store's failure to make aprima facie showing required denial of its motion, regardless of the sufficiency of the opposingpapers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Finally, contrary to the store's contention, the Supreme Court properly granted that branch ofthe motion of the Rapistan defendants which was for summary judgment dismissing the crossclaims that it asserted against them. Mastro, J.P., Belen, Chambers and Roman, JJ., concur.