Mangano v Town of Babylon
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Mangano v Town of Babylon 2012 NY Slip Op 30777(U) March 29, 2012 Supreme Court, Suffolk County Docket Number: 07082/2007 Judge: William B. Rebolini Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK IAS. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Emily Mangano, Indcx No.: 0708212007 Plaintiff, Attorneys [See Rider Annexed] -agamstMalian Sequence No.: 004; MG Motion Date: 8/1.5/ [ 1 Submitted: II/3/ll The Town of Babylon, J. & T. Metal Products Co., Inc., Cooper Tank & Welding Corp. and Kleen-Tainer Corp., Defendants. Clerk 01" the Court Motion Sequence No.: 005; XMD Motion Date: 8/15/11 Submillcd: II/3/ll Motion Sequence No.: 006; XMD Motion Date: 81J.5111 Submitted: 11/3111 Upon the followlllg papers numbered] to 73 read upon these motions for summary judgment: NOlice of Motion and supporting papers, I - 23; Noticc of Cross Mallon and supponing papers. 24 - 41; 42 - 47; Answenng Affidavits and SUpp0l1ll1gpapers, 48 - 65; ReplYing AffidaVIts and suppol1ing papers, 66 - 68; 69 - 73. This is an action to recover damages for personal injuries allegedly sustained by plaintiff. Emily Mangano. as a result of an incident that occurred on August 8, 2006 at lhe Cedar Beach Marina in Babylon, New York. which is owned by defendant the Town of Babylon ("Town"). It is undisputed that. whlle plaintiff was dumping her private garbage into a dumpster located in the marina the dumpster lipped over and landed on her tight foot. The dumpster was manufactured by [* 2] Mangano v. Town of' BabylOIl. ct aL Indl'x No.: 07082/2007 Page 2 complaint allegcs causes of action sounding in negligence, strict products liability, breach of wananty and failure to warn. Defendant Cooper Tank no\\' moves (# 0(4) for summary judgment dismissing the complaints and all cross claims insofar as asscl1ed agalllst it. In support, Cooper Tank submits, i111er alia, the pleadings, a bill of particulars, two transcripts of the deposition tcstimony of the plaintiff, dated April 29, 2008 and February 8, 2010, the transcnpt of the deposition testimony of Michael Taylor, a representative of Cooper Tank, and the affidavit of George pfreundschuh, an ex pen engllleer of Cooper Tank. At her deposition dated April 29, 2008, plaintiff testified to the effect that, on the day of the accident, she and her two roommates did yard work lIlcluding pulling out bushcs and bagging soil at their rented house. After the yard work, they collected several bags of yard waste and put them into their vehicles. They each drove separate vehicles to the Cedar Beach Marina where plaintiff was employed as a dock master for the Town of Babylon. They backed IIIeach car one-by-one to the front of'l dumpster located on the left side of the marina and dumped the bags of yard waste into the dumpster. Plaintiff described the front side of the dumpster, which was about at "eye to neck level", as "sticking out and slanted." Plaintiff stated that she was able to see the bottom of the dumpster from where she was standing. The plaintiff's vehicle was the last one backed to the dumpstcr- After she finished unloading her vehicle, shc closed the hatch of her vehicle. As she was tullling around towards the dumpster, it tipped over and landed on her right foot. Prior to the aCCIdent, when she was dumping bags mto the dumpster, she observed that it was on "grass, sand and concrete" but appeared to be "Ievcl" and "stable". At her deposition dated l,'cbruary 8, 2010, plaintiff testified to the effect that, immediately he fore thc dumpster caml.':into contact with her foot and as she was turmng uround, she saw the dumpster cOl11lng down towards her. Plior to the accident, she observed labels on the dumpster, :llthough she had no recollection as to the content of the labels. At his deposition, Michael Taylor testified to the effect that he IS the director of mallufo:.lcturing Cooper Tank, and that Cooper Tank 15 a company manufacturing and sellmg only of garbage contmners, which arc refelTed to as dumpsters. He identified the subject dumpster as an eight-yard container manufactured by Cooper Tank. TIc stated that the design of the container has not changed since he slal1ed workmg at Cooper Tank 14 or 15 years ago. He also stated that. when Cooper Tank sells its containers, waming labels regarding the tipping hazard are attached on both sides of the products. About 14 years ago, he performed a weight test on an eight-yard container. He observed Ihat the container was able to withstand the weight of 200 pounds III the front of the container without tipplllg, which was greater than the American National Standards Institute C"ANSI") standard. He stated that eight-yard containers have never been recalled, and that Cooper Tank has never received complalllts that the eight-yard containers have tipped over. [* 3] Mangano v. Town of lluhvlon. ct al. Index No.: 07082/2007 Page 3 In his affidavil. George pfreundschuh stated that he IS a professional engineer licensed in the State of New York. On November 20,2009, he inspected several dumpstcrs at the Cedar Beach Manna. During the inspection, he tested an exemplar eight-yard dumpster manufactured by Cooper Tank. First, he observed that his "measurements of the exemplar Cooper 8 yard dumpster and the specIfication drawmg that Cooper provided to the Town of Babylon indicatcs a dimensional design consistent with the ANS [ 2245.60 standard". Next, he performed two tests - vertical and horizontal weight bearmg tests - on the exemplar dumpster. He observed that the dumpster's "tlp resistance and stability far exceeded the stability performance required by Section 7.2.3. or ANSI Z245.30", \vhich contams the design rcquirements and specifics the test conditions to verify compliance with the perfonnance requirements. A m,mufacturer who places a defective product into the stream of commerce may be liable for injuries or damages caused by such product (see, Gebo v. Black Clawson, 92 NY2d 387, 391 [1998J; Linano v. Hobart Corp., 92 NY2d 232, 235 [1998]; Amatulli v. Delhi ConstL Corp., 77 NY2d 525, 532 [1991 D. A product may be defective duc to a mistake in the manufactUling process, an improper design or a failure to provide adequate wamings regarding the use of the product (see, Gcbo v. Black Clawson, 92 NY2d 387 [19981: Voss v. Black & DeckerMfQ .. 59 NY2d 102 [1983]). Depending upon the factual circumstances, a person injured by a defective product may mallltain causes of action under the theories of strict products liability, negligence or breach of wan·anty (see, Voss v. Black & Decker MfQ.,59 NY2d 102 [1983]). Whether an action is pleaded in strict products liabi lily, negligence or breach of walTanty, the p!ainti rr has the burden of establishlllg that a defect in the product was a substantial factor in causing the injury (see, Rizzo v. Sherwin-Williams Co., 49 AD3d 847 [2nJ Dept., 2008]) and that the defect existecl at the time the product left the manufacturer or other entity In the chain of distribution being sued (see, Clarke v. Helene CLutIS,Inc., 293 AD2d 701 [2'" Dept., 2002]; T"rdell" v. RJR Nabrsco, 178 AD2d 737 [3'" Del't .. 19911). The proponent' of a summary Judgment motIon must make a prilllo facie showing 01" entitlement to Judgment as a matter of law, tendering suffiCient evidence to elil1111late ny material a issue of fact (see, Alvarez v. Prospect Hasp., 68 NY2d 320 [19861; Wine£rad v. New York Univ. Merl. Ctr., 64 NY2d 851 ! 1985]). Once such proof has been produced, the burden then shifts 10the opposing parly who, in order to defeat Ihe motion for summary Judgment, must proffer evidence in admissible form sufficient to require a trial of any issue of fact (see, Zuckelman v. City of New York. 49 NY2d 557 [19801: Melendez v Parkchester Med. Serv., 76 AD3d 927 list Dept., 2010]) and must assemble. lay bare and reveal hiS proof in order to establish that the matters set f011h111 iS h pleadings are real and capable of being established (see, Castro v. Libel1v Bus Co .. 79 AD2d 1014 [2'1<1 Dept., 19811). Summary judgment shall only be granted when there arc no issues of material fact and the evidence requires the Court to direct a judgment 111 favor or thc movant as a matter of law (sec, Friends of Animals v. Associated Fur Mfr:->., NY1d 1065 [1979]). 46 o Herc, Cooper Tank has estabhshcd its prill/([ facie entitlcment to summary Judgmcnt by dcmonstrating that therc is nothing in the record from which it can reasonably be inferred that the [* 4] M~Hlgallo \'. Town of Habvlon. et al. Index No.: 0708212007 Pa~c4 subjcct dumpstcr \Vasdefective when it left the possession and control of CooperT ank (see, Wallace v. 511maU.S.A., 77 AD3d 918 [200 Dept., 2010]; Sabessarv. Presto Sales & Serv .. 45 AD3d 8:29[2'10.1 Dept., 2007]: Lobello v. BF! Was'e Svs. of N. Am., 35 AD3d 1177 [4'" Dept., 2006]). In opposition, neither the plaintiff nor the other defendants offered direct evidence that the dumpster was defective at (he time it was manufactured or sold. Nor did they offer evidence that Cooper Tank negligently installed and/or repaired lhe dumpster (see, Steinberg v. D. Waldner Co., l05 AD2d492 [2"dDept., 20031; Sullivan v. Main Line Flec. Co., 295 AD2d497 l2"J Dept., 20021). In opposition, plaint] ff submits, illter alia, the affidavit of Anthony Storace, a professional engineer. In his affidavit, Anthony Storace opined that "it was reasonable to foresee thatthe dumpstcr, becausc of Its slanted front deSIgn, could be tipped forward under reasonably foreseeable conditions of use" and that lithe dumpster design" caused the subject accident. He contended that CoopcrTank failed to provide "reasonable means of preventing" the accident, such as outriggers, braces or legs, and such failure rendered the dumpster "defective in design for safelY". Here, plaintiff's expert affidavit is insufficient to raise a tliable question of fact, as It contains conclusory findings unsupPol1ed by fact or relevant data. Where the expert states his conclusion unencumbered by any trace of facts or date, the testimony should be given no probative force whatsoever(see, Rom;Jno v. Stan lev, 90 NY2d444 [1997]; Moore v. l.A. Bradlev &Son5, 68 AD3d 1419 [2,><1 Dept.. 2009]). It is also well established that a manufaeturerneed not incorporate safety features into its product so as to guarantee that no harm will come to every user no matter how careless or even reckless (see, Robinson v. Reed-Prentice Di v. of Packa~e Mach. Co., 49 NY2d 471 rI980]; Burnham v. Rogers Bros. COIJ?, 289 AD2d 356 [2ml Dept., 2001]). Thus, plaintifffailccl to raise a triable issue of fact. In vIew of the forcgolllg, the motion (# 004) by defcndnnt Cooper Tank for summary .iudgment disllllSSlIlg the complaint and all cross claims against it is granl'ed. The action is severed and shall continue agaInst the remalll1Jlg dcfendants. Defendant Town cross-moves (# 005) for an order granting summary judgment on the complaints and all cross claims against It. The Town incorporates by reference the pleadings and exhIbits submitted by Cooper Tank in support of its Oliginal motion. At his deposition, Ronald Kestenbaum testified to the effect that he IS a Deputy Commissioner of Depal1ment of Public Works and the Pubhe Works Facility Coordinator of the Town_ On the day of the accident, he was in charge of maintaining the Cedar Beach Marina, including ··grass CUlling and emptying the garbage". There were five or six dumpsters in the manna, and al I of dumpsters were six or eight-yard dumpsters owned by the Town. The Town itself emptied the dumpsters when they were filled. According to a Town law, "Town employees cannot bling in their own personal garbage" to the manna. During June, July and August of 2006, the dumpsters [* 5] Mangano v. Town 01' Babvlon. ct al. Index No.: 070S2/2007 Pa~e 5 were cmptled every day III thc moming. He stated that there was no "procedure in place for the maintcnance personnel to check regularly that the dumpsters were placed on the proper surface". Pnor to the accIdent. hc did not obscrvc or rCCC1c any complaint that the dumpsters had tippcd over. v At his deposition, non-purty witness Joseph Argento testified to the effect that he IS a Bay Constable for the Town and his duties include patrolling the beaches and keeping the peuce at the Town parks. On the day of the accident he \vas disputched to the area of the accident. When he i.lITived at the scene, hc observed that the subJcct dumpster was "tipped over onto thc opcnlllg" and the plaintiff was sitting on the ground. He heard that the plaintiff's foot had been "removed from underneath the dumpster." While he \vas at the scene, Suffolk County-Police Emergency Service put the dumpster In an upright position. When he walked around the dumpster at the scene, he observed that the dumpster was on the pavement and that "[a]round the back [was] grass and dirt". He was able to step on the grass and dirt and felt the ground was stable and level. Dunng the Sllmmer of 2006, there was no complaint aboLlt the "dumpster being unstable" pnor to the aCCident. A landovmer mLlst act as a reasonable person in maintaining Its propelty in u reasonably safe condition in view of all the Circumstances, including the likelihood of injury to others, the senousness of the Injury, and the burdcll of uvoiding the lisk (see, Basso v MIller, 40 NY2d 233 r 1976]; Witherspoon v Columbia Umv., 7 AD3d 702 [2nd Dept 2004]). The ]SSlle of negligence, whether of the plaintiff or defendant, 15 usually a question of fact (see, Bruni v CJtv of New York, 2 NY3d 319 [2004]). Whether a dangerous condition exists on real property so as to create hability un the part of the landowner depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury (see, Moons v Wade LURe Constr. Co., 24 AD3d 1005 [yJ Dept 2005]; Fasano v Green-Wood Cemetery, 21 AD3d 446 [2nd Dept 200S]). Here, the Town faIled to establish its entitlement to judgment as a maller of law. There are questIOns of fact as to how the aCCIdent occurred; whether a dangerous condition existed in the area of the aCCident so as to create lwbihty on the part of the Town, and whether it exercised reasonable care under the circumstances (see, McCummings v New York Citv 1'1". Auth., 81 NY2d 923 [19931: Basso v Ml1ler, 40 NY2d 233 [1976]; Karsdon v BaJTin>?:er,298 AD2d 501 [2 Dept 1999]). There arc also questions of fact as to whether the Town's alleged ncghgcnce was a proximate cause of the subjecl accident, and whether the plainti ff was comparatively negltgent (see, GOl!arty v Hay Kit Ho, 28 AD3d 607 [2tLd Dept 2006]; Bruker v Fischbein, 2 AD3d 254 [I ,I Dept 1003]). Accordingly, the Town's motion for summary Judgment 1$ demed. JlJ Defendant J. & T. Metal Products Co., Inc. ("J. & T. Metal") cross-moves (# 0(6) for an order granting summary judgment dislmssmg the complaints and all cross clamls agall1st It. Here. J. & T. Metal's cross motion for summary .IUdgmelllls untimely inasmuch as i t was not served wlthm 120 days of the fjllllg of the note of Issue on March 28, 2011 (see, CPLR *3212 [a]). Instead, the affirmation of service of the cross motion is dated July 27, 2011, one day aftcr the [* 6] Mangano \'. Town of Bab\'lon. et al. Index No.: 07082/2007 Page 6 deadline for filing the cross motion for summary judgment. J. & T. Metal has provided no explanation or "good cause" for serving the cross motion I day late and, thus, the Coun has no discretion to enlel1ain it on the ments (see, Brill v. City of New York, 2 NY3d 648 [2004]: Thompson v. Leben Home for Adults, 17 AD3d 347 [2nd Dept., 2005]). Moreover, whJ!e a cross motion for summary Judgment made afterthc expiration of the statutory 120-day penod, as here, may be consldered by the Court, where a timely motion for summary judgment was made seeking relief "nearly identical" to that sought by the cross motion, this Court finds that the relief sought by other defendants' motion and cross motion and 1. & T. Metal's cross mOlion was not "nearly identical" (see, Teitelbaum v. Crown Hgts. Assn. for the Belterment, 84 AD3d 935 [2"J Dept., 201 I]). J. & T. Metal's cross motion for summary judgment is also dellled as procedurally defective for failure to submit a comple[c copy of the pleadings. Accordingly, it is ORDERED that the motion by defendan[CooperTank & Welding Corp. (# 004) for an order granting summary judgment dismissing the complaint and all cross claims against It ISgranted: and it is further ORDEREJ) that the cross motion by defendant the Town of Babylon (# 005) for an order granting summary judgment dismissing the complaint and all cross claims against It is denied; and it is l"lllther ORDERED that the motion by defendant J. & T. Metal Products Co., Inc. (# 006) for an order granting summary judgment dismlssing the complaint and all cross clai ms against It is denied. Dated· ___ FINAL DlSPOSlTION x NON-FINAL DISI)OSITION [* 7] Attornev fOf PluimitT: Wingate, Russotti & Shaplfo, LLP 420 Lexington A venue, Suite 2750 Ncw York. NY 10170 Attorncv for Defcndant Town of Babvlon: Zaklukiewicz, Puzo & Morrissey, LLP 2701 Sunrise Highway, SUite #2, P.O. Box 389 Islip Tenace, NY 11752 Attornev for Defend<lnl J. &.T. Metal Products Co.: Robert J. Cava, P.c. 1038 Lin1c East Neck Road We'l B"bylon, NY 11704-2412 Attomcy for Defendant Cooper Tank & Welding: Pero, & Varvaro 3:;:; Earle Ovingloll Boulevard, P.O Box 9372 Uniondale, New York 11553-3644 Clerk of the Court
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