Wages v Morse Diesel Intl., Inc.

[*1] Wages v Morse Diesel Intl., Inc. 2005 NYSlipOp 50604(U) Decided on April 22, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 22, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
2004-853 K C

James Wages and JEANETTE WAGES, Respondents,

against

Morse Diesel International, Inc., Appellant.

Appeal by defendant, as limited by its brief, from so much of an order of the Civil Court, Kings County (E. Gesmer, J.), entered March 31, 2004, as denied its motion for summary judgment.

Order insofar as appealed from affirmed without costs.

Plaintiff James Wages, a part-time security guard at Wyckoff Heights Medical Center, was injured when a piece of ceiling tile fell on him while he was in the corridor between the emergency room and the triage registration area. He commenced a personal injury action against defendant construction manager, responsible for overseeing a construction project at the hospital, and alleged that defendant was negligent in causing, allowing and permitting the ceiling located in the area of the accident to be installed and/or repaired in a dangerous and unsafe condition. Defendant subsequently moved for summary judgment on the ground that it did not
install, repair or maintain the ceiling in the area in question. Although in support of the motion defendant submitted the deposition testimony of its area superintendent who stated that defendant did not exercise any supervision over the area in which the accident occurred, that witness also acknowledged that defendant had supervised the installation of a temporary partition and ceiling approximately ten feet from the area where the ceiling tile fell upon plaintiff. Despite defendant's contention that said work had no effect upon the condition which led to the accident, it did not submit an affidavit from an expert to support said contention. Under the circumstances presented, in the absence of an expert's affidavit, it cannot be said that defendant made a prima facie showing of entitlement to judgment as a matter of law. Accordingly, the court below [*2]properly denied defendant's motion.

Pesce, P.J. and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia J., dissents and votes to reverse the order and grant defendant's motion for summary judgment in the following memorandum:

In my opinion, an expert affidavit in support of defendant's motion was not necessary, and defendant's submissions were sufficient to establish its prima facie entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). This shifted the burden to plaintiffs to come forward with evidence in admissible form showing the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiffs failed, however, to meet their burden. They did not show that defendant exercised any supervision or control over the area in question, and failed to submit any evidence that the accident was attributable to any negligence on defendant's part. Indeed, plaintiff James Wages himself testified in his deposition that although he knew that there was construction going on in the hospital, he did not even know whether the area in which he was injured was involved. Moreover, while it is true that defendant supervised installation work and demolition work in an area adjacent to the site of the accident, plaintiffs' theory that such work could have affected the tiles in the hallway area is speculative in nature and is insufficient to raise an issue of fact, absent an expert's affidavit.

Accordingly, since plaintiffs did not show that defendant was in any way responsible for the condition of the hallway ceiling tiles, the court below should have granted summary judgment in favor of defendant and dismissed the complaint.
Decision Date: April 22, 2005