Sordi v City of New York
Annotate this CaseDecided on June 25, 2012
Supreme Court, Richmond County
Susan Sordi, as Administratrix of the Estate of JOSEPH SORDI, deceased, and SUSAN SORDI, Individually, Plaintiff,
against
The City of New York, VITO M PERAGINE, DAEWOOD HEAVY INDUSTRIES & MACHINERY LTD., DAEWOOD HEAVY INDUSTRIES & MACHINERY CORP., DAEWOOD HEAVY INDUSTRIES AMERICA CORP., DAEWOOD MACHINERY CORP., HOFFMAN INTERNATIONAL, INC., HOFFMAN EQUIPMENT, INC, HOFFMAN INTERNATIONAL CORP. d/b/a HOFFMAN EQUIPMENT CO, DOOSAN INFRACORE AMERICA CORP., TELEFLEX MORSE, INC. and TELEFLEX, INC., Defendants.
101212/06
Thomas P. Aliotta, J.
The following papers numbered 1 to 4 were marked fully submitted on the 9th day of May, 2012:
PapersNumbered
Notice of Motion for Summary Judgment by defendants
Doosan Infracore Co., Ltd's and Doosan Infracore
America Corp.
(Affirmation, Affidavit and Memorandum of Law in Support)....1
Plaintiff's Affidavit in Opposition
(Affidavit in Support)......................................2
City's Affirmation in Opposition to Summary Judgment............3
Reply Affirmation...............................................4
_________________________________________________________________
Upon the foregoing papers, the motion for summary judgment of defendants Doosan Infracore Co., Ltd. (formerly known as Daewoo Heavy Industries & Machinery Ltd.) and Doosan Infracore America Corp.,(formerly known as Daewoo Heavy Industries America Corp. and Daewoo Machinery Corp.,[hereinafter "Doosan"]) is denied.
This matter arises out of a fatal accident which occurred on December 6, 2005, in the South [*2]Beach parking lot located adjacent to Father Capodanna Boulevard at its intersection with Sand Lane, in Staten Island, New York. As alleged in the complaint, plaintiff's decedent, a 59 year old National Park Service employee, was killed after being struck by an out-of-control Department of Sanitation front-end loader (i.e., a 2004 Mega 200-V Daewoo Wheel Loader, Serial No. 3021) operated by New York City Department of Sanitation employee Vito M. Peragine (hereinafter "Peragine"). Insofar as it appears, plaintiff's decedent, Joseph Sordi, and his partner had been dispatched to this location to load-up on road salt in anticipation of a looming snow storm. After arriving in the parking lot at approximately 1:05 a.m., decedent exited his vehicle and approached the subject loader in order to let Peragine know that they needed to pick-up salt (see December 14, 2009 EBT of Vito Peragine, p 178, ll 8-9; Plaintiff's Exhibit O). When asked at his deposition how the accident occurred, Peragine stated: "I really can't describe it because it happened so fast. I put my foot down on the gas, went down just a little bit, about an eighth of the way down and it just started sticking. The gas pedal stuck and I hit Mr. Sordi" (id.).
In the present action, Sordi's Administratrix, individually and in her representative capacity (hereafter "plaintiff"), has asserted causes of action for wrongful death and conscious pain and suffering under several theories, to wit: strict products liability, negligence and breach of warranty, express and implied. Defendant Doosan was the manufacturer of the wheel loader; defendants Teleflex Morse Inc. and Teleflex Inc. (hereinafter "Teleflex") were the manufacturer and supplier of the pedal assembly incorporated into the wheel loader, and defendants Hoffman Equipment Inc., and Hoffman International Corp., d/b/a Hoffman Equipment Co. (hereinafter "Hoffman") were the distributors of the vehicle to the City of New York (hereinafter, the "City"). Additionally, the City is named a party defendant based on its alleged failure to maintain and operate the subject wheel loader in a safe and proper manner, as well as the negligent hiring and retention of an untrained and unfit operator, defendant Peragine (see Plaintiffs' March 23, 2010 "Second Supplemental Summons and Complaint", para 23 [Doosan's Exhibit E]).
It appears undisputed that after conducting tests on the subject vehicle in December of 2005, the New York City Accident Investigation Squad found that the accelerator pedal of the wheel loader became stuck in an "open throttle failure" test on each of the six times it was tested (see City's Exhibits B and C).
In support of its motion for summary judgment, defendant Doosan argues that (1) the subject wheel loader was manufactured and designed in accordance with the contract specifications supplied by the City; (2) plaintiff's claim of a design defect is insufficient due to the failure to proffer evidence of a feasible alternative design; (3) plaintiff's claim of a manufacturing defect is insufficient due to the failure to exclude all other causes for the accident, e.g., operator error or improper maintenance; and (4) the four-year statute of limitations had expired on plaintiff's breach of warranty claims on July 14, 2008,[FN1] i.e., four years from the date on which the subject loader was delivered by Doosan to Keen Transport Inc., (see Doosan's Exhibit J).
Notable here is the February 14, 2012 affidavit of Doosan's engineering expert, Michael Rogers (see Doosan's Exhibit M), who concluded after his inspection of the subject machinery on July 8, 2011, that, inter alia, (1) "the subject wheel loader and its component parts were [*3]manufactured pursuant to and conformed to all applicable industry standards, including the International Organization for Standardization standard and the Society of Automotive Engineering standard...and...the City of New York's specifications"; (2) based on his inspection, "there is nothing patently defective about the subject wheel loader," and (3) "any alleged failure of the subject wheel loader was caused by the misuse or abuse of [same]" (id.).
Plaintiff and the City oppose summary judgment.In support of her opposition, plaintiff attaches the April 12, 2012 affidavit of another engineer, Matthew J. Burkart, P.E., whose conclusion, based on "a reasonable degree of engineering certainty," is that the wheel loader's accelerator pedal assembly was defective in design because it "did not adequately address and eliminate the effect of corrosion on the accelerator pedal assembly [in] disregard [of] the known intended use of the subject wheel loader for [the carriage of] corrosive substances...[thereby] render[-ing] the pedal assembly unfit for its reasonably anticipated use...[According to Mr. Burkhart] these defects, along with driver error,...caused the [subject] accident" (see Plaintiff's Exhibit A).
For its part, the City maintains that the accident was caused solely by defendant Doosan who, it is alleged, provided the City with a defective front-end loader that was not in compliance with the City's contract specification for vehicles capable of operating under severe weather conditions. In support, the City points to the EBT testimony of a Teleflex witness, Matthew Green (see City's Exhibit G), who stated that Teleflex routinely recommended that a protective boot be placed on the underside of the accelerator pedal to protect it from environmental conditions, such as weathering, dirt, snow and salt, and opined that without the boot, the pedal would be subject to more corrosion, which likely caused the accelerator pedal to become stuck. However, this testimony was contrary to that of Doosan's general manager and senior research engineer, Wanjun Cho (see City's Exhibit H), who testified that he had never heard of a protective boot being used on the accelerator pedal of a front-end loader and that he was unaware that Teleflex offered this option or had any device that could reduce the chances of corrosion. In light of, inter alia, the above conflict, the City argues that a question of fact clearly exists as to whether, e.g., the accelerator pedal mechanism adopted by Doosan was suitable for the loaders's intended use. Plaintiff and the City also question whether the front-end loader itself was fit for its intended use, i.e., to load a corrosive material, salt, onto salt spreaders in extreme weather conditions.
As previously indicated, the motion is denied.
The conflicting engineering opinions expressed herein present "a classic [case of a] conflict between experts" which precludes summary relief, particularly with respect to the question of whether the subject accelerator pedal was properly protected from corrosive elements (Peebles v. New York City Hous. Auth., 295 AD2d 189, 191). Although well settled that "[w]hen a product is manufactured in accordance with the plans and specifications provided by the purchaser, the manufacturer is not liable for an injury caused by an alleged design defect in the product, unless the specifications are so patently defective that a manufacturer of ordinary prudence would be placed on notice that the product is dangerous and likely to cause injury" (Houlihan v. Morrison Knudsen Corp, 2 AD3d 493,494), in this case Doosan has been unable to demonstrate as a matter of law that the product in question was manufactured in conformity with the City's specifications, e.g., the need for prolonged use loading corrosive materials under harsh weather conditions.
Here, the opponents of summary judgment have identified a purported design defect which was present when the subject wheel- loader was delivered to the City, as well as at least one feasible [*4]design alternative, i.e., the installation of a protective boot for the accelerator pedal. On the other hand, the moving defendants have failed to demonstrate as a matter of law that their product was free of any design defect (see Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 106-107).
Finally, Doosan has failed to demonstrate that plaintiff's breach of warranty claims were not timely asserted, i.e., within four years of acceptance of the wheel loader by the City (see UCC 2-725[2]), which occurred on December 9, 2004 (see Plaintiff's Exhibit K), rather than the date of its delivery to Kean Transport Inc.'s facility in Pennsylvania, as alleged by Doosan (see Doosan's Exhibit J). Thus, the applicable statute of limitations did not expire until December 9, 2008 at the earliest. Plaintiff at bar filed her Supplemental Summons and Amended Verified Complaint on November 25, 2008 (see Doosan's Exhibit A).
Accordingly, it is
ORDERED, that the motion for summary judgment is denied.
E N T E R,
__/s/_________________________
Hon. Thomas P. Aliotta
J.S.C.
Dated: June 25, 2012
gl
Footnotes
Footnote 1:The Supplemental Summons and Complaint naming Doosan as a defendant was not filed until November 25, 2008.
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