Candela v City of New York
Annotate this CaseDecided on March 31, 2009
Supreme Court, New York County
Calogero Candela and Carmela Candela, Plaintiffs,
against
The City of New York, the New York City Board of Education, New York City School Construction Authority, TDX Becom, Space Master Building Services, LLC, EFCO Corporation, Space Manufacturing of Pennsylvania, Inc., Space Master Inter- National, Inc., and the Windows Association, Inc., Defendants. EFCO CORPORATION Third-Party Plaintiff CALDWELL MANUFACTURING COMPANY Third-Party Defendant EFCO CORPORATION Third-Party Plaintiff UNIQUE BALANCE INC., and BALANCE SYSTEMS INC. Third-Party Defendants
117686/00
Appearances of Counsel:
Kenneth J. Ready
114 Old Country Road
Mineola, NY 11501
(Attorney for Plaintiffs')
Mathew P. Ross
Wilson Elser Moskowitz Edelman & Dicker LLP
150 East 42nd Street
New York, NY 10017-5639
(Attorney for Defendants New York City Board of Education, New York City School Construction Authority, TDX Becom, Spacemaster Systems, Spacemaster Manufacturing, and Spacemaster International)
David P. Feehan
Hoey, King, Toker and Epstein
55 Water Street, 28th Floor
New York, NY 10041
(Attorney for Defendant EFCO)
Christopher Kendric
Ahmuty Demers & McManus
200 I.U. Willets Road
Albertson, NY 11507
(Attorney for Defendant Caldwell)
Eileen A. Rakower, J.
Plaintiffs Calogero Candela and Carmela Candela filed this action seeking to recover for personal injuries sustained in the course of Calogero Candela's employment when a window allegedly fell on his back at West Side High School on August 6, 1999 ("the incident"). Plaintiffs commenced an action on or around January 17, 2001 against defendants the City of New York, New York City Board of Education, New York City School Construction Authority ("SCA"), TDX-Becom ("TDX"), and Space Master Building Systems, LLC alleging negligence and violations of Labor Law §§200, 241(6), and 240. On or around March 19, 2002, Plaintiffs commenced a second action pertaining to the incident, alleging strict products liability, breach of warranty, negligent design and negligent manufacture against defendants EFCO Corporation ("EFCO"), TDX, Space Master Manufacturing of Pennslyvania, Inc. ("SM Manufacturing"), Space Master Building Systems, LLC ("SM Systems"), and the Window Associates, Inc. These causes of action were consolidated by order of the Supreme Court, Queens County.
Presently before the court are two motions for summary judgment and a cross motion for summary judgment, all of which address only the products liability claims asserted in the second action. The first motion for summary judgment is made by Defendants New York City Board of Education, SCA, TDX, SM Systems, SM Manufacturing, and Spacemaster International ("SM International") (collectively "first motion defendants"). In this motion, these defendants seek summary judgment solely as to Plaintiffs' products liability claims against them. In support of their motion, these defendants have submitted a Notice of Motion, Affirmation in Support, and a Memorandum of Law in Support. Annexed to the Affirmation as exhibits are copies of the pleadings; Plaintiffs' Bill of Particulars; the deposition transcript of Plaintiff Colagero Candela; deposition transcript of TDX; deposition transcript of Spacemaster; deposition transcript of Franklin Bradley; deposition transcript of SM International; deposition transcript of Bill Cochrane of Caldwell Manufacturing Company ("Caldwell"); deposition transcript of Craig Murillo; and the note of issue [*2]filed by Plaintiffs. Plaintiffs have submitted a Notice of Cross-Motion for Summary Judgment against these defendants regarding their products liability claims, as well as an Affirmation in Opposition to the above defendants' motion for summary judgment, and a Memorandum of Law. Caldwell and EFCO have both submitted affirmations in partial opposition to the extent that the Spacemaster defendants seek common law indemnification from Caldwell and EFCO. The above defendants have submitted an affirmation in opposition to Plaintiffs' cross-motion and reply in further support of their motion.
The second motion for summary judgment is made by Third Party Defendant Caldwell. Caldwell has submitted a Notice of Motion for Summary Judgment and an Affirmation in Support. Annexed to Caldwell's Affirmation in Support as exhibits are Plaintiffs' Bill of Particulars; copies of EFCO's Third Party Complaint against Caldwell and Caldwell's Answer; EFCO's Bill of Particulars; Affidavit of William B. Cochrane; deposition transcript of Bill Cochrane; and the deposition transcript of TDX. EFCO has submitted an Affirmation in Opposition (which, as noted above, also opposes the other motion to the extent that the Spacemaster defendants seek indemnification). Annexed to EFCO's affirmation as exhibits are the deposition transcript of EFCO; EFCO's Answer; and the Note of Issue filed by Plaintiffs. The first motion defendants have submitted an Affirmation in Opposition.
Construction of the West Side High School ("the project") commenced when SCA engaged SM International to erect a three-story modular school in New York County. SM International's specific role was to design the building and oversee its construction. The contract between SCA and SM International was taken over by SM Systems, which was broken off from SM International, the remainder of which was sold to a non-party on September 1, 1998. SCA later hired TDX to oversee the project due to timeliness issues with SM Systems.
The fabrication and construction of the modular units was performed by SM Manufacturing. The nature of the project was such that the modular school unit was pre-fabricated at SM Manufacturing's plant in Pennsylvania. It was then shipped in parts to the project site in New York County for construction. SM Manufacturing did not manufacture the modular units with windows. The windows used in the project were manufactured by EFCO, and were purchased by SM Manufacturing from Window Associates, Inc., a distributor of EFCO. The windows were installed into the modules by SM Manufacturing at its Pennsylvania factory.
The window which allegedly fell on Plaintiff Calogera Candela contained a balance system which is designed to keep the window in an open position without any external assistance. The balance system utilized by EFCO in the window was manufactured by Caldwell Manufacturing Company ("Caldwell"). In addition, the window was what is known as a "tilt" window. A tilt window is one in which a portion of the window can be tilted either inward or outward. According to Caldwell, in order for a tilt window to function properly, it requires a device known as a "pivot lock shoe." The pivot lock shoe enables the window to tilt, and physically connects and secures the window to the balances. Caldwell maintains that, while it did manufacture and supply EFCO with balances, it did not supply the pivot lock shoes used in the tilt windows. [*3]
"To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 NY 118 [1950]). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v. Carey, 280 App.Div. 1019 [3rd Dept. 1952]), or where the appeal is "arguable" (Barrett v. Jacobs, 255 NY 520, 522 [1931]); "issue-finding, rather than issue-determination, is the key to the procedure" (Esteve v. Abad, 271 App.Div. 725, 727 [1st Dept. 1947]).' (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957])." (Ramsammy v. City of New York, 216 AD2d 234, 236-237 [1st Dept. 1995].)
In addition, "[t]he party opposing the [summary judgment] motion must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests." (Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967 [1988].) Bald, conclusory allegations, even if believable, are not enough. (Id.; Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 NY2d 255 [1970]; Edison Stone Corp. v. 42nd Street Development Corp., 145 AD2d 249, 251-252 [1st Dept. 1989]).
A manufacturer, wholesaler, distributor or retailer who places a defective product into the stream of commerce is liable to the party injured by the defective product, irrespective of privity, foreseeability, or the exercise of due care (Gebo v. Black Clawson Co., 92 NY2d 387, 392 [1998]). It is well settled that a products liability cause of action can be proven by circumstantial evidence, and that the injured party need not identify a specific defect in the product (Ramos v. Howard Indus., Inc., 2008 NY Slip Op 2081, *2 [2008]) (citing Speller v. Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]; Halloran v. Virginia Chems., 41 NY2d 386, 388 [1977]; Codling v. Paglia, 32 NY2d 330, 337 [1973]). However, in lieu of evidence of a specific flaw in the allegedly defective product, the injured party must (1) prove that the product did not perform as intended; and (2) exclude all other causes for the product's failure not attributable to the defendant(s) (Ramos at *2) (citing Speller at 41).
A party injured by an allegedly defective product may also recover on a theory of breach of implied warranty of merchantability under §3-214(2)(c) of the Uniform Commercial Code. To recover under the UCC, the party need only show that the product was not "fit for the ordinary purposes for which [it is] used," and is not required to prove negligence (see Denny v. Ford Motor Co., 87 NY2d 248, 258 [1995]).
The first motion defendants argue that they are entitled to summary judgment on Plaintiff's product liability claims because they are not manufacturers, sellers, or distributors of the window units utilized in the West Side High School project. Ordinarily, contracts for the design and construction of buildings are regarded as contracts for the performance of a service which do not fall within the sphere of strict products liability. (Trustees of Columbia University v. Gwathmey Siegel and Assocs. Architects, 192 AD2d 151, 155 [1st Dept. 1993]) (citing Milau Assocs. v. North Ave. Dev. Corp., 42 NY2d 482 [1977]; Hart v. Moray Homes, 158 AD2d 890 [3rd Dept. 1990]). However, a contract for the sale and delivery of a modular building unit "is essentially a contract for the sale of goods..." (Gruet v. Care Free Hous. Div. Of Kenn-Schl Enters., 305 AD2d 1060, 1061 [*4][4th Dept. 2003]) (citing Gianakakos v. Commodore Home Sys., 285 AD2d 907, 908 [3rd Dept. 2001]; Hull v. Moore's Mobile Homes Stebra, 214 AD2d 923, 924 [3rd Dept. 1995]).
While SM Systems concedes that it was a distributor of the modular building units, SM Systems maintains that it was not a distributor of the EFCO windows. However, where SM Manufacturing installed the EFCO windows in its own factory and erected the modular building at the project site with the windows installed, the modular unit, of which the window was a component, may be determined to be a defective product (see Markel v. Spencer, 5 AD2d 400, 409 [4th Dept. 1958]) ("One who puts out a complete product, being of his manufacture, is liable for any defect in a component part as if he had manufactured it, even though, in fact, he had purchased the part from others.").
Accordingly, with respect to the first motion defendants' partial motion for summary judgment, the motion is denied with respect to defendants SM Systems, SM Manufacturing, and TDX since a rational trier of fact could conclude that these defendants introduced a defective product into the stream of commerce in the manufacture, distribution and sale of its modular building unit. However, the motion is granted with respect to defendants New York City Board of Education and SCA as to Plaintiffs' products liability claims, as there is nothing in the record indicating that these agencies did anything more than purchase the building to use as a school for members of the general public (see Serna v. New York State Urban Development Corp., 185 AD2d 562, 563 [3rd Dept. 1992]).
Nor are the remaining first motion defendants entitled to summary judgment on the issue of indemnification from EFCO or Caldwell, because they have not proven that they were free from negligence in the installation of the window as a matter of law (see Brunjes v. Lasar Mfg. Co., 40 AD3d 567 [2nd Dept. 2007]; Mas v. Two Bridges Assocs, 75 NY2d 680 [1990]). Indeed, the first motion defendants have not moved for summary judgment on the issue of negligence, and instead limited their motion to Plaintiffs' products liability claims. Accordingly, it remains an issue of fact for trial as to whether the remaining first motion defendants are free of negligence with respect to the allegedly defective window.
Turning now to Caldwell's motion for summary judgment, the court finds that Caldwell is not entitled to dismissal of the third party complaint and the cross claims asserted against it. It is alleged that Plaintiff was injured when the balance which was designed to hold the window in an open position failed. This balance was manufactured by Caldwell. While Caldwell asserts that it is entitled to judgment as a matter of law because (1) the other mechanism(s) connecting the balance to the window were not manufactured by Caldwell and may have been the cause of the alleged defect; and/or (2) EFCO might not have properly used Caldwell's balances, these propositions fail to make a prima facie showing of entitlement to summary judgment. Where, as here, the evidence of a manufacturing defect is circumstantial, the manufacturer of a product may escape liability by offering competent evidence that the product failure was not caused by the manufacturer (see Ramos at *4) (where defective transformer was unavailable for inspection, defendant made prima facie showing that it was not responsible for defect by submitting an expert affidavit setting forth the [*5]"state of the art conditions" in which the product designed and manufactured, as well as the rigorous testing and inspection process applied to each individual product prior to leaving the plant; all of which led expert to conclude that it was "virtually impossible" for the product to have left the plant in a defective state). Caldwell has failed to make any such showing, and its hypotheses of other potential causes for the window's failure amounts to little more than speculation (id.). Accordingly, there exists a triable issue of fact as to what role, if any, Caldwell's balance played in the collapse of the window, or whether the failure was caused by a non-Caldwell product, negligence on the part of EFCO, and/or negligent installation of the window by SM Manufacturing.
Finally, with respect to Plaintiffs' cross-motion for summary judgment, the defendants argue that the cross-motion must be denied as untimely. CPLR §3212(a) requires that motions for summary judgment cannot be made within 120 days of the filing of the note of issue except with leave of the court upon a showing of good cause. However, where an untimely cross-motion for summary judgment is made in response to a timely motion and raises virtually identical issues, it is within the court's discretion to consider the cross-motion (see Lapin v. Atlantic Realty Apts. Co., 2008 NY Slip Op 1624, *1 [1st Dept. 2008]; Altschuler v. Gramatan Mgt., 2006 NY Slip Op 1909, *1-2 [1st Dept. 2006]).
Turning to the merits of Plaintiffs' cross-motion, Plaintiffs have failed to demonstrate their entitlement to summary relief on their products liability causes of action. As noted above, since Plaintiffs rely on circumstantial evidence to demonstrate the defective nature of the window, as opposed to identifying the specific defect - if any - which caused the window to fall, Plaintiffs are obligated to show that the product did not perform as intended, and must exclude all other possible causes of the window's failure not attributable to the defendants (Ramos at *2). "Where causation is disputed, summary judgment is not appropriate unless only one conclusion may be drawn from the established facts." (Speller at *43). While the defendants have not offered competent proof of an alternative explanation for the window's failure such that they would be entitled to judgment as a matter of law, this does not entitle Plaintiffs to summary judgment. Rather, the record before the court demonstrates that a reasonable fact-finder could infer that the window was defective based upon circumstantial evidence - it is by no means required to do so (see Maciarello v. Empire, 16 AD3d 1009, 1011 [3rd Dept. 2005]) ("If a plaintiff makes this [two-pronged] showing, that party survives a defense motion for summary judgment and the factfinder could then reasonably infer, if the plaintiff's proof is credited, that an accident happened because of a product defect.") (citing Speller at 43-44).
Wherefore, it is hereby
ORDERED that summary judgment on the issue of Plaintiffs' products liability claims is granted as to defendants New York City Board of Education and SCA; and it is further
ORDERED that summary judgment on the issue of Plaintiffs' products liability claims or, [*6]in the alternative, common law indemnification, is denied as to defendants SM Systems, SM Manufacturing, and TDX; and it is further
ORDERED that Caldwell's motion for summary judgment is denied; and it is further
ORDERED that plaintiffs' cross-motion for summary judgment is denied.
This constitutes the decision and order of the court. All other relief requested is denied.
DATED: March 31, 2009
__________________________________
EILEEN A. RAKOWER, J.S.C.
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