| Forssell v Lerner |
| 2012 NY Slip Op 08486 [101 AD3d 807] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Mark Forssell, Respondent, v Randy Lerner et al.,Appellants. |
—[*1] London Fischer LLP, New York, N.Y. (Bernard London and Matthew K. Finkelstein ofcounsel), for appellant Makita U.S.A., Inc. Ancona Associates, Mineola, N.Y. (Dustin A. Levine of counsel), for respondent.
In an action to recover damages for personal injuries, (1) the defendant Randy Lernerappeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County(Rebolini, J.), dated February 16, 2011, as denied his motion for summary judgment dismissingthe complaint insofar as asserted against him, and the defendant Makita U.S.A., Inc., separatelyappeals from so much of the same order as denied its motion for summary judgment dismissingthe complaint insofar as asserted against it, and (2) the defendant Makita U.S.A., Inc., appealsfrom so much of an order of the same court dated November 28, 2011, as denied that branch ofits motion which was for leave to renew its prior motion.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
The plaintiff allegedly was injured while working as a carpenter at a construction project onproperty owned by the defendant Randy Lerner. He alleged in the complaint that he was injuredwhile using his table saw, which he had plugged into an electrical outlet that was also being usedto power five other electrical devices. He alleged that the "overload" caused a power surge,which caused the table saw to "skip," causing his hand to come in contact with the saw blade.
The plaintiff commenced this action against Lerner, alleging common-law negligence and aviolation of Labor Law § 200, and against the defendant Makita U.S.A., Inc. (hereinafterMakita), the manufacturer of the table saw, alleging, among other things, negligence and strictproducts liability based upon a design defect. In his response to Makita's interrogatories, theplaintiff claimed, among other things, that the table saw was not equipped with a blade guardwhen he bought it from a coworker, and that "[t]he failure to include a blade guard bolted to thetable saw constitutes a design defect."[*2]
After issue was joined, Makita moved for summaryjudgment dismissing the complaint insofar as asserted against it, arguing that the saw had beendistributed with a blade guard attached, and it could not be held liable for injuries resulting froma subsequent substantial modification of the table saw. Lerner separately moved for summaryjudgment dismissing the complaint insofar as asserted against him. The Supreme Court deniedthe motions, and subsequently denied Makita's motion, inter alia, for leave to renew.
A cause of action sounding in violation of Labor Law § 200 or common-lawnegligence may arise from dangerous or defective conditions of the premises, or the manner inwhich the work is performed (see Pilatov 866 U.N. Plaza Assoc., LLC, 77 AD3d 644, 646 [2010]; Ortega v Puccia, 57 AD3d 54, 61[2008]). Further, in rare cases, both theories of liability may be implicated (see Reyes v Arco Wentworth Mgt.Corp., 83 AD3d 47, 50-52 [2011]). In this case, the plaintiff's injuries allegedly arosefrom the manner in which the work was performed, and not from any dangerous or defectivecondition on the premises (see Cody vState of New York, 82 AD3d 925, 926 [2011]; Pilato v 866 U.N. Plaza Assoc.,LLC, 77 AD3d at 645-646). Where, as here, a claim arises out of the means and methods ofthe work, a property owner may be held liable for common-law negligence or a violation ofLabor Law § 200 only if he or she had "the authority to supervise or control theperformance of the work" (Ortega v Puccia, 57 AD3d at 61; see Cody v State of NewYork, 82 AD3d at 927; Pilato v 866 U.N. Plaza Assoc., LLC, 77 AD3d at 646).Contrary to Lerner's contention, the vague and conclusory assertions in his affidavit in support ofhis motion were insufficient to make a prima facie showing that he did not have the authority tosupervise or control the performance of the plaintiff's work (see County of Nassau v Velasquez, 44 AD3d 987 [2007]; McDonald v Sunstone Assoc., 39AD3d 603, 605 [2007]; Berchini v Silverite Constr. Co., 289 AD2d 434 [2001]).Accordingly, Lerner's motion for summary judgment dismissing the complaint insofar as assertedagainst him was properly denied, regardless of the sufficiency of the plaintiff's opposing papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The Supreme Court also properly denied Makita's motion for summary judgment dismissingthe complaint insofar as asserted against it. "[A] manufacturer of a product may not be cast indamages, either on a strict products liability or negligence cause of action, where, after theproduct leaves the possession and control of the manufacturer, there is a subsequent modificationwhich substantially alters the product and is the proximate cause of plaintiff's injuries"(Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 475 [1980]; see Fernandez v Mark Andy, Inc., 7AD3d 484, 485 [2004]). While Makita's submissions established that the table saw wasdistributed with a blade guard, there was also evidence that the blade guard was removable andthat the table saw was operable without it. Thus, a triable issue of fact exists as to whether thetable saw was purposely designed to permit use without the blade guard (see Fernandez vMark Andy, Inc., 7 AD3d at 485; Eiss v Sears, Roebuck & Co., 275 AD2d 919,919-920 [2000]; cf. Masiello vEfficiency Devices, 6 AD3d 672, 673 [2004]; Wyda v Makita Elec. Works, 232AD2d 407 [1996]).
Moreover, that branch of Makita's subsequent motion which was for leave to renew itsmotion for summary judgment was properly denied. "[I]n general, a motion for leave to renewmust be based upon new facts not offered on the prior motion that would change the priordetermination, and must set forth a reasonable justification for the failure to present such facts onthe prior motion" (Bazile v City of NewYork, 94 AD3d 929, 930-931 [2012] [internal quotation marks omitted]; seeCPLR 2221 [e]; Ramirez vKhan, 60 AD3d 748, 748 [2009]). Here, Makita did not demonstrate a reasonablejustification for failing to submit the affidavit of its expert on the prior motion (see Bazile vCity of New York, 94 AD3d at 931; Ramirez v Khan, 60 AD3d at 748-749).Contrary to Makita's contention, the affidavit did not address issues which had been raised, suasponte, by the Supreme Court in its initial order (cf. Wilder v May Dept. Stores Co., 23 AD3d 646, 648 [2005]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Mastro, J.P., Lott, Austin and Cohen, JJ., concur. [Prior Case History:2011 NY Slip Op 30461(U).]