Rowe v RWDSU Realty Corp.

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Rowe v RWDSU Realty Corp. 2012 NY Slip Op 32613(U) October 12, 2012 Sup Ct, New York County Docket Number: 115206/2009 Judge: Doris Ling-Cohan 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. SCANNEDON 1011612012 [* 1] SUPREME COURT OF:TI-IE STATE OF NEW Y0RI.C- NEW YORK CQUNTY PRESENT: PART 36 H o 11.D0 RI S LING-C 0 MA Id, J ustic e ORDER / / . Gfl@./ The following papers( I to -) Bf4. m motion tolfor Papers Notice of MotionlOrder to Show Cause -Affidavits Exhibits Answering Affidavits Exhibits Replying Affidavits [ ] No Cross-Motion: [ ] Yes Upon the foregoing papers, it is ordered that & & S ,&& were read o I ~ Dated: Ni i r n l i ~ ~ r ~ c l +I ! ZI- # /D- 2 - // / ,J.S.C. DOF38S L NG -c8HA N t ..................................................................... CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION I : 0GRANTED S DENIED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER I CHECK ONE: . 2. 3. nDO NOT POST NON-FINAL DISPOSITION 0GZAMTED IN PART OTHER SUBMIT ORDER 0FlOUClARY APPOINTMENT c REFERENCE ] [* 2] ,SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: I A S PART 36 X -______---l-----_ll_------------I-_ RALPH A. ROWE a n d DESIREE ROWE, Individually and as Husband and Wife, Plaintiffs, Index No. : 1.152 6/ 2 009 0 -againstRWDSU REALTY CORPORATION, RWDSU REALTY CORPORATION C/O RETAIL WHOLESALE AND DEPARTMENT STORE UNION and CAMPANILE INC., Motion S e q . No.: 001 FILED Defendants X OCT 96 2012 DORIS LING-COHAN, J.: CoUlUlY CLERKS OFFtCE In this action for negligence and v j . o l h - b n 8 w Y @ # New Y o r k State Labor Law, defendants RWDSU Realty Corporations, RWDSU Realty Corporation c/o Retail Wholesale And Department Store Union, and Campanile Inc. move, pursuant to C P L R 5 3212, for summary judgment dismissing all causes of actions in the verified complaint submitted by plaintiffs Ralph A. Rowe ( Rowe ) and Desiree Rowe (jointly as Plaintiffs ). In their opposition papers, plaintiffs have consented to withdraw t h e i r fifth cause of action which asserts labor law ¶ 3 , Affirmation in Opposition, Background and Factual Information Rowe, an independent contractor specializing in kitchen equipment repair, was hired by Slavko Dunic ( Dunic ), the owner of Campanile, an Italian restaurant, to inspect and repair a belt for the kitchen s exhaust system. On the date of the incident, -1- [* 3] January 21, 2009, Rowe had been a kitchen equipment technician for over ten (10) years. See Notice of Motion, Ex. E , p p . 11-14. It is undisputed that, when Rowe arrived at Campanile, D u n i c told him that the belt for the exhaust s y s t e m was making a lot of noise, and that the exhaust was turned off and to check the belt. See Notice of Motion, ¶ 15 and Ex. F, pp. 27-28. As Rowe was examining the fan, the motor came on, a n d the fan severed his finger. Defendants now move, pursuant to CPLR 3212, to dismiss a l l causes of a c t i o n in t h e amended complaint. Defendants argue that they had no d u t y to Rowe, and therefore could not have breached any duty. Defendants maintain that \ [w]hen a worker c o n f r o n t s the ordinary and obvious hazards of his employment, and has at his disposal the time and other resources... to enable him to proceed safely, he may not hold others responsible if he elects to perform his j o b so incautiously as to injure himself. Bomber0 v. NAB C o n s t r . C o r p . , 10 A D 3 d 170, 172 (1st Dept 2004) ( q u o t i n g M a r i n v. S a n M a r t i n Rest., Inc., 287 AD2d 441 ( 2 d Dept 2001). Defendants maintain that Rowe held himself out as a kitchen equipment technician with over 10 years of experience; thus, defendants a r g u e that the it was Rowe s responsibility to check whether or not the power was on, b e f o r e he began working on thc fan. Plaintiffs oppose the motion for summary judgment, arguing that the motion should be denied since defendants caused OL created the injury producing dangerous condition by turning the -2- [* 4] power to the fan on while Rowe was inspecting it and/or representing to Rowe that the power was o f f when it was not. Discussion The standards for summary judgment are well settled. The movant must tender evidence, by p r o o f in admissible form, to establish the cause of action "succinctly to warrant the court as a matter of law in directing judgment.', CPLR 5 3212 [b]; Z u c k e r m a n v C i t y of N e w Y o r k , 49 N Y 2 d 557, 562 (1980). "Failure to m a k e such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. " Ctr., 64 N Y 2 d 851, 853 (1985) W i n e g r a d v NYU M e d i c a l To grant summary judgment it must be clear that no material and t r i a b l e issue of fact is presented. See Sillman v Twentieth Century-Fox F i l m C o r p . , 3 NY2d 395 (1957). Issue finding rather than issue determination is the court's function. Id. The court should draw all reasonable inferences in favor of the non-moving party, and should not p a s s on issues of credibility. Dauman Displays, lnc. v. Masturzo, 168 AD2d 204 ( ' Dept 1990). 1' Applying such principles herein, defendants' motion for summary judgment: is denied. Significant]-y, it is not disputed that, prior to Rowe's commencement of t h e work on the belt, Rowe was affirmatively told by Dunic that the power was o f f , and to go check the belt, and that, ultimately, Rowe's finger was s e v e r e d by a moving f a n . See Notice of Motion, 6-11. ¶ 15 and Ex. F, p. 33, 11. Thus, defendants failed to establish as a matter of law that they did not create the alleged dangerous condition w h i c h [* 5] . rcaused Rowe s injury. See Kesselman v. Lever House R e s t a u r a n t , 29 AD3d 302 (1 Dept 2006)(defendant failed to establish, as a matter of law, that it did not create the condition which caused plaintiff s accident) . Furthermore, defendants had the requisite ownership and control of the instrumentality of Rowe s injury, namely the fan and its power switch, f o r which a j u r y could determine that defendant owed a duty to plaintiff Rowe. See Gibbs v. P o r t Authority of N e w Y o r k , 1 7 AD3d 252 (1st Dept 2005). CONCLUSION Accordingly, it is ORDERED that the defendants motion for summary judgment is granted only to the extent that p l a i n t i - f f s fifth cause of action asserting labor law claims is withdrawn on consent; and it is further ORDERED that, within 30 days of entry of this order, plaintiffs shall serve a copy upon a l l parties, with noti-ce of entry. I * < I - Doris Ling-Cohan, J.S . C. J:\Summary Judgment\liowe v RWDSU decision.wpd

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