Martorel v Tower Gardens, Inc.

Martorel v Tower Gardens, Inc. 2010 NY Slip Op 05490 [74 AD3d 651] June 22, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Joaquin Martorel, Respondent,
v
Tower Gardens, Inc., et al., Defendants, and Wilkinson Hi-Rise, LLC, Appellant.

—[*1] Bivona & Cohen, P.C., New York (Ian H. Kaufman of counsel), for appellant.

Sullivan Papain Block McGrath & Cannavo, P.C., New York (Brian J. Shoot of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 24, 2009, which, insofar as appealed from as limited by the briefs, denied defendant Wilkinson High-Rise LLC's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff was injured when his arm became entangled in defendant Tower Gardens' uncovered trash compactor. Before the January 2005 accident, defendant IDC Systems, followed by Wilkinson beginning in 2002, serviced the compactor on an "as called" basis. Wilkinson failed to establish prima facie that neither it nor IDC created or exacerbated the dangerous condition of the missing ram cover (see Cumbo v Dormitory Auth. of State of N.Y., 71 AD3d 1513, 1514-1515 [2010]; Mastroddi v WDG Dutchess Assoc. Ltd. Partnership, 52 AD3d 341 [2008]; Prenderville v International Serv. Sys., Inc., 10 AD3d 334, 337 [2004]). Nor did Wilkinson establish prima facie that there was no consolidation or merger of itself and IDC or that Wilkinson was not a mere continuation of IDC (see Schumacher v Richards Shear Co., 59 NY2d 239, 245 [1983]; Kretzmer v Firesafe Prods. Corp., 24 AD3d 158 [2005]). We disregard the legal opinions offered by Wilkinson's expert engineer as to plaintiff's lack of detrimental reliance, the legal relationship between IDC and Wilkinson, and whether IDC or Wilkinson created or exacerbated a dangerous condition (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 68-69 [2002]). In any event, the motion court correctly found that plaintiff's offering of, inter alia, an asset purchase agreement between IDC's parent corporation and Wilkinson and an affidavit by his own expert engineer raised issues of fact as to both the "successor-in-interest" issue and Wilkinson's negligence in servicing the compactor. [*2]

We have considered Wilkinson's remaining contentions and find them unavailing. Concur—Tom, J.P., Mazzarelli, Sweeny, Freedman and Abdus-Salaam, JJ.