Garcia v Baker Equip. Leasing Co.
Annotate this CaseDecided on June 30, 2005
Supreme Court, Kings County
JUAN GARCIA and HEATHER ROBERTS-GARCIA, Plaintiffs,
against
BAKER EQUIPMENT LEASING COMPANY, FIVE STAR ELECTRIC CORP., and FIVE STAR ELECTRIC/ JB ELECTRIC JOINT VENTURE, LLC, Defendants.
21151/02
Plaintiff:
Mark E Seitelman Law Offices, PC
NY NY 10034
Defendants:
Kevin P Carroll, Esq.
D'Amato & Lynch
NY NY
Fiedelman Garfinkelman & Lesman Esqs.
NY NY
Arthur M. Schack, J.
Defendant Baker Equipment Leasing Company [hereinafter "Baker"] moves for summary judgment and dismissal of plaintiff's complaint and all cross-claims against Baker for contribution and indemnification, pursuant to CPLR § 3212. Co-defendant Five Star Electric/JB Electric Joint Venture, LLC [hereinafter "Five Star"] opposes Baker's motion. This court denies defendant Baker's motion because it is based upon an attorney's affirmation, with mere speculations and conclusions regarding Baker's alleged lack of negligence and liability.
Background of case
Plaintiff Juan Garcia claims injury on January 14, 2002 at a school construction site, I.S. [*2]77, 978 Seneca Avenue, Brooklyn, NY, with various causes of action, including, negligence, strict liability, labor law violations, and products liability. Baker claims to have lent to Five Star a demonstrator model of a bucket truck [exhibit F of motion, pp. 28-29] and Five Star's employees operated the bucket truck at the construction site when plaintiff was allegedly injured in an accident [exhibit G of motion, pp. 38-40] while on the truck when a boom snapped [exhibit D of motion - plaintiff's verified bill of particulars; exhibit E of motion, pp. 238-245].
Summary Judgment Standard
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).
CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).
Discussion
Baker argues that plaintiff's complaint should be dismissed inasmuch as the various sections of the Labor Law cited by plaintiff do not apply to Baker. However, plaintiff also puts forward various negligence claims against Baker, including strict liability and products liability, with the failure of the bucket truck boom by its snapping under extreme pressure [exhibit A of motion - plaintiff's verified complaint; exhibit D of motion - plaintiff's verified bill of particulars]. In its answer, Five Star pleads cross-claims for contribution and/or indemnification against Baker, based upon Baker's alleged negligence or breach of duty [exhibit C of motion].
Baker supports its motion for summary judgment with an attorney's affirmation, whereby Baker's attorney argues that there is no evidence of negligence by Baker as Baker merely lent the bucket truck to Five Star. Furthermore, Baker's counsel argues that Baker billed Five Star for damage to the truck [exhibit H of motion] and Five Star paid upon receipt of an invoice from Baker. Baker's counsel states in paragraph 1 of his affirmation in support of the motion that, "I am fully familiar with the facts and circumstances stated herein by virtue of a review of the file maintained by this law firm."
It is black letter law that in a CPLR § 3212 motion for summary judgment an affirmation by an attorney who has no personal knowledge of the facts has no evidentiary value. See Zuckerman, supra; Stahl v Stralberg, 287 AD2d 613 (2d Dept 2001); Deronde Products Inc. v [*3]Steve General Contractor Inc., 302 AD2d 989 (4th Dept. 2003). Professor David Siegel, in
Siegel, NY Prac § 281, at 464 [4th ed.], instructs that:
Affidavits on any motion should be made only by those with
knowledge of the facts, and nowhere is this rule more faithfully applied
than on the motion for summary judgment. The attorney's affidavit, unless
the attorney happens to have first-hand knowledge of the factswhich is
the exception rather than the rulehas no probative force.
In support of its motion, Baker has not supplied an affidavit by anyone with personal knowledge of how the accident occurred, or even a copy of the check that Five Star allegedly paid to Baker for the invoiced damage to the bucket truck. The affirmation in support of Baker's motion contains nothing but conclusory allegations regarding the claim that Baker is not negligent.
Furthermore there are triable issues of fact existing. Plaintiff, in his verified bill of particulars [exhibit D of motion, paragraph 4] amplified his negligence and strict liability claims, which Baker's counsel does not refute in any evidentiary form. Therefore, these claims are admitted as triable issues of fact. The Court of Appeals, in Kuehne & Nagle, Inc. v F. W. Baiden, 36 NY2d 539, 544, held that, in summary judgment motions:
Facts appearing in the movant's papers which the opposing party does
not controvert, may be deemed to be admitted (Laye v Shepard, 48 Misc 2d
478, affd. 25 AD2d 498; Siegel, Practice Commentaries, McKinney's
Cons. Laws of NY, Book 7B, CPLR 3212:16, p 437), and where there
are cross motions for summary judgment, in the absence of either party
challenging the verity of the alleged facts, as is true in the instant case,
there is, in effect, a concession that no question of fact exists (cf. Schifter
v Commercial Travelers Mut. Acc. Assn., 183 Misc 74, affd 269 App Div
706; . . . ).
Baker does not deny that it sells, services and leases hydraulic equipment, such as the bucket truck used in used in this accident [exhibit F of motion, pp. 6-7]. Baker's deposition witness, Alan Mason, admits that Baker is a "distributor" of such equipment [exhibit F of motion, p. 14]. As a distributor and an entity placing products, such as the bucket truck, into the stream of commerce Baker could be held by a jury as liable to Five Star, as well as plaintiff, under a products liability theory. Responsibility under a theory of strict products liability can be imposed even upon a lessor who leases to another a product for immediate use which causes injury. See Winckel v Atlantic Rentals and Sales, 159 AD2d 124 (2d Dept 1990); Wengenroth v Formual Equipment Leasing, Inc., 11 AD3d 677 (2d Dept 2004).
In reviewing, the deposition testimony of Baker's witness, Mr. Mason, it reveals that he has no knowledge regarding: the lifting capacity of the bucket truck involved in the accident [exhibit F, pp. 43-44]; the operation of the bucket truck and if a load chart was supplied to Five [*4]Star [exhibit F of motion, pp. 44-45]; whether Five Star or its employees were supplied with any instructions, warnings or other information, or whether warning or instructions were affixed to the bucket truck [exhibit F of motion, pp. 48-49]; and, whether Baker supplies any instructions or operating manuals to its customers, when it supplies them with vehicles, such as a bucket truck [exhibit F of motion, pp. 49-50]. Thus, a trier of fact could find that Baker is liable to Five Star and plaintiff for its failure to warn about any dangers attendant upon the use of a bucket truck. The Court of Appeals instructed, in Cover v Cohen, 61 NY2d 261, 274-275 (1984), that:
[a]lthough a product be reasonably safe when manufactured and sold
and involve no then known risks of which warning need be given, risks
thereafter revealed by user operation and brought to the attention of the
manufacturer or vendor may impose upon one or both a duty to warn . . .
Further, the Court of Appeals held, in Rastelli v Goodyear Tire and Rubber Company, 79 NY2d 289, 297 (1992) that "[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its products of which it knew or should have known (see Cover v Cohen, 61 NY2d 261, 275; . . . )." Whether warnings are sufficient to alert a product user to potential hazards is a question of fact for a jury. See Doty v Navistar International Transportation Corp., 219 AD2d 32 (4th Dept 1996).
A jury, on Five-Star's cross-claim, could find that Baker is liable to Five Star due to
Baker's failure to provide operating instructions and warnings with the bucket truck provided to Five Star. Baker's motion for summary judgment to dismiss plaintiff's verified complaint and all cross-claims against Baker must be denied. It is based upon an attorney's affirmation, containing only conjecture and conclusions with respect to Baker's negligence and liability. Further, Baker has failed to submit proof in evidentiary form to establish that the bucket tuck was free of defects which lead to the accident.
Conclusion
The motion of defendant Baker for summary judgement and dismissal of plaintiff's complaint and all cross-claims of co-defendant Five Star against it for contribution and indemnification, pursuant and to CPLR § 3212, is denied.
This constitutes the decision and order of the court.
____________________________________
HON. ARTHUR M. SCHACK
J. S. C.
[*5]
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