Martinez v Morris Ave Equities
Annotate this CaseDecided on March 3, 2005
Supreme Court, Bronx County
Fausto Martinez, Plaintiff,
against
Morris Ave Equities a/k/a MORRIS AVE EQUITIES CORPORATION; 1 MORRIS AVE EQUITIES CORPORATION; MORRIS AVE EQUITIES CORP; MARION WINDOW GLASS AND SHADE CORPORATION; MARION GLASS AND WINDOW SHADE CORPORATION; MARION GLASS COMPANY; COUNTY ENGINEERING CO., A DIVISION OF ROSS WINDOW CORPORATION, Defendants.
22310/2001
Counsel for plaintiff:
Mathew J. Kogler,Esq., 7 Dey Street, Room 207, NY, NY 10007
Counsel for defendant "Ross":
O'Connor, O'Connor, Hintz & Deveney, LLP
One Huntington Quadrangle, Suite 1C07, Melville, NY 11747
by David W. Haber, Esq.
Counsel for defendant "Marion":
Callan, Koster, Bardy & Brennan, LLP, One Whitehall Street, NY, NY 10004
by Kenneth S. Merber, Esq.
Counsel for defendant "Morris":
Barry, McTiernan & Moore, 175 Main Street, White Plains, NY 10601
by Kevin Maguire
Betty Owen Stinson, J.
This motion by defendant County Engineering Co., a Division of Ross Window
Corporation, ("Ross") for summary judgment dismissing the plaintiff's complaint and all
cross-claims against it is granted. Cross-motion by defendant Marion Window Glass and Shade
[*2]Corporation (sued herein also as Marion Glass and Window
Shade Corporation and Marion Glass Company) ("Marion") for summary judgment dismissing
the plaintiff's complaint and all cross-claims against it is denied with leave to renew at the close
of discovery. Cross-motion by Morris Ave. Equities Corp. (sued herein also as Morris Ave
Equities, Morris Ave Equities Corporation and 1 Morris Ave Equities Corporation) ("Morris")
for summary judgment dismissing the complaint and all cross-claims against it is granted.
Plaintiff, employed by a management company, April Realty Services, Inc., was attempting to repair a window located at 2728 Webb Avenue, Bronx, New York, when a spring-loaded bar from the window mechanism struck him in the eye. Plaintiff commenced suit against two window glass companies, Ross and Marion, alleging common law negligence and products liability, and against the owner of the building, Morris, alleging common law negligence and a violation of Labor Law § 241(6) for failure to provide plaintiff with eye protection.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]). A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence (Augerbach v. Bennett, 47 NY2d 619 [1979]); Ruttura & Sons Construction Co. V. J. Petrocilli Construction, 257 AD2d 614 [2nd Dept 1999]).
"A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose (cites omitted)" (Lugo v. LJN Toys, 75 NY2d 850 [1990]). It is axiomatic that, to be found liable for selling a defective product, a defendant must have been the party who sold the defective product.
In support of its motion, Ross offered the affidavit of its president, Mickey Ross, and the affidavit of its expert, Benjamin Pearlmutter. Mickey Ross stated that his records indicated that he sold Unit Type 1290 bronze-colored frost panel windows to be installed in the subject building in 1987. He stated further that he examined the subject window on March 5, 2003 and it was not a window of the kind he had installed and that his company neither designed, manufactured, installed, inspected or repaired it. Mr. Pearlmutter, Ross's expert, stated in his affidavit that he examined the subject window on March 5, 2003 along with pictures taken of the subject window. He stated that the subject window tilted forward into the room and had double-insulated clear glass with wire inside. Unit type 1290 Ross windows, with which Mr. Pearlmutter is familiar, do not tilt to the inside and do not have wire inside the glass. Furthermore, Mr. Pearlmutter observed a sticker affixed to the glass of the subject window that read, "Marion Glass Co.".
In opposition to the motion, plaintiff argued that the motion is premature because discovery is not complete and that Mickey Ross could have forgotten or been mistaken as to the kind of windows he installed. Plaintiff also offered a letter from an insurance company containing a statement obtained from a third party that the subject window was installed by Ross.
Ross has established its entitlement to summary judgment which the plaintiff has not [*3]refuted with admissible evidence. Ross submitted proof that it did not design, manufacture, install, repair or maintain the subject window. Plaintiff's suggestion that Ross' president could be mistaken is speculative and insufficient to defeat summary judgment. The opinion contained in letter from the insurance company is inadmissible as hearsay based on information from a third party. Plaintiff did not offer any evidentiary basis to support that opinion or to support a need for further discovery as to Ross' possible connection with the subject window.
In support of its cross-motion, Marion offered the affidavit of its president, Howard Reiss. Mr. Reiss stated that there are no records showing that his company designed, manufactured, installed, repaired or replaced any windows in the subject building. He stated further that, sometimes, employees of Marion affix stickers when replacing panes of glass, but only at the factory, not at the installation site.
Marion has not established prima facie its entitlement to summary judgment. Despite Mr. Reiss' affidavit stating there are no records to show Marion installed the window, there presently is no adequate explanation for the admitted presence of Marion's sticker on the subject window apart from some involvement with it by Marion. Marion's cross-motion is, therefore, denied with leave to renew upon the completion of discovery.
To establish a prima facie case against a landowner in a premises liability action, a plaintiff must prove the defendant had actual or constructive notice of the dangerous or defective condition and sufficient time, within the exercise of reasonable care, to correct or warn about its existence (Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]). Constructive notice can be established if the defect is visible and apparent and in that condition for a sufficient length of time that the defendant is presumed to have seen it or was negligent in failing to see it (id.).
Labor Law § 241(6) requires owners, contractors and their agents involved in construction, demolition or excavation to see that the work is performed in compliance with specific safety rules and regulations so as to keep safe all persons employed there or lawfully frequenting the premises. Persons carrying out routine maintenance, however, are not engaged in construction for purposes of the statute (Robinson v. City of New York, 211 AD2d 600 [1st Dept 1995]). "The statute is limited to affording protection for those actually employed to work on a construction site" (Blandon v. Advance Contracting Co., 264 AD2d 550 [1st Dept 1999]).
In support of its cross-motion, Morris offered the affidavit of its officer and principal, Joseph Gershenov. Mr. Gershenov stated that Morris owned the subject building at the relevant time and that all day-to-day management and maintenance of the building was in the hands of April Realty Services, Inc. ("April Realty"). All personnel on site were in the employ of April Realty and Morris had no notice of any complaints or problems with any of the windows in the building prior to the accident date.
In opposition to the cross-motion by Morris, plaintiff offered his own affidavit stating he was told by other employees of April Realty that they would speak to the owner of the building, Michael Laub, "about the window in apartment 3B" and that repair materials were charged to "Mike's" account at a local hardware store. Plaintiff argued that it is reasonable to infer that the building owner thus knew of the "problem" with the subject window before the accident. Plaintiff also argued that it took "hours" to repair or replace spring mechanisms in the windows and, therefore, such work constituted a "substantial alteration of a building", making Labor Law [*4]applicable to plaintiff's accident.
Morris has established its entitlement to summary judgment which plaintiff has not refuted with admissible evidence. Morris submitted an affidavit by its principal to show that it had no notice of the defect in the subject window that caused plaintiff's injury or notice of any complaints regarding the windows (see Gordon, 67 NY2d 836). Plaintiff's affidavit makes clear that he himself was unaware a spring-loaded rod might hit him, despite having repaired this type of window on multiple previous occasions and despite his claim that complaints were made by a tenant that the window was not functioning properly. No statement by the tenant was offered and the claim of complaints made is, thus, merely hearsay and inadmissible. Plaintiff did not say that his discussions with the other employees of April Realty included a warning of the dangerous possibilities of spring-loaded rods hitting someone, even though plaintiff was in the best position to be aware of such danger. Even if complaints by the tenant or by the other employees of April Realty were made and passed on to Morris, there is nothing to show that it would have put Morris or April Realty, as Morris' agent, on notice of the likelihood of an accident of the type that happened here and given Morris an opportunity to suggest that plaintiff wear eye protection before attempting repair.
Labor Law is inapplicable to the instant situation. There is no evidence whatsoever that the subject building constituted a "construction site" (see Blandon, 264 AD2d 550). Replacement of the herein-described existing window parts does not, as a matter of law, constitute "alteration of a building", and, in any event, that latter standard is applicable to Labor Law § 240(1), not Labor Law § 241(6), the statute section claimed by plaintiff to have been violated in this instance (see Joblon v. Solow, 91 NY2d 457 [1998] ["altering" requires making "a significant change to the configuration or composition of the building"]).
Plaintiff's complaint as against Morris and Ross and all cross-claims against them are dismissed. Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall amend the caption to delete the names of all defendants except Marion Window Glass and Shade Corporation.
This constitutes the decision and order of the court.
Dated: March 3, 2005
Bronx, New York
_______________________________
Betty Owen Stinson, J.S.C..
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