Butt v Win Depot, Inc.

[*1] Butt v Win Depot, Inc. 2017 NY Slip Op 50294(U) Decided on February 24, 2017 Supreme Court, Queens County Modica, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 24, 2017
Supreme Court, Queens County

Amjad H. Butt, et al., Plaintiff,

against

Win Depot, Inc., Defendant.



6675/2015



For Plaintiff:

Joseph J. Sciacca, Esq.

33 Main Street

Port Washington, NY 11050

For Defendant:

Litchfield Cavo, LLP

by: Lyndsey C. Bechtel, Esq.

420 Lexington Avenue, Suite 2104

New York, NY 10170
Salvatore J. Modica, J.

Papers Numbered

Notice of Motion & Supporting Papers 1-11

Cross Motion & Papers 12-16

Reply Papers 17-21

The defendant's motion for summary judgment in this case where the plaintiff injured his hand inserted in a blender, while an employee of defendant was allegedly plugging the appliance is denied in all respects.

The sequencing of events and credibility of the witnesses is critical, decisive, and all important in the factual determination, presenting issues for the trier of fact. Since the plaintiff customer was holding the store model of the blender, if and whether the store's employee saw the defendant holding and maneuvering the device before plugging in the appliance, the issuance of a warning to place the blender down and for the plaintiff to remove his hands would have been eminently reasonable. The facts of this action thus are wholly different from circumstances of a patent hazard or an extraordinary sequence of events or intervening act with unforeseeable consequences. Compare, Davidson v. Miele Sanitation Co. NY, Inc., 9 AD3d 346 (2nd [*2]Dept.2004) (company's conduct was not proximate cause of worker's alleged injuries) with Liriano v. Hobart Corp., 92 NY2d 232, 243 (1998) ("Failure-to-warn liability is intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances . . . obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause.").

As the New York Court of Appeals, in Liriano v. Hobart Corp., 92 NY2d at 242, stated:

While important to warning law, the open and obvious danger exception is difficult to administer (see, e.g., Jacobs, Toward a Process—Based Approach to Failure—to—Warn Law, 71 N.C. L. Rev. 121, 128—137 [1992] ). The fact-specific nature of the inquiry into whether a particular risk is obvious renders bright-line pronouncements difficult, and in close cases it is easy to disagree about whether a particular risk is obvious. It is hard to set a standard for obviousness that is neither under-nor over-inclusive. Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question (see, e.g., Bolm v. Triumph Corp., 33 NY2d 151, 159—160, 350 N.Y.S.2d 644, 305 N.E.2d 769). Where only one conclusion can be drawn from the established facts, however, the issue of whether the risk was open and obvious may be decided by the court as a matter of law.

This Court believes that the circumstances of this action is one where the sequencing of events and witness credibility requires a trial of disputed issues of fact.

This Court directs the parties to appear at the Trial Scheduling Part on May 11, 2017, at 9:30 A.M., for the trial of plaintiff's action.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: February 24, 2017

Jamaica, New York

Honorable Salvatore J. Modica

J.S.C.