McCarthy v Checchin
Annotate this CaseDecided on July 30, 2004
Supreme Court, Clinton County
Jason S. McCarthy and Lisa M. McCarthy, Plaintiffs,
against
Robert Checchin, Individually, Robert Checchin d/b/a ABR Tool & Die, ABR Poincoins Et Matrices, Inc., s/h/a ABR Tool & Die, Inc., and Ali Porte, Inc. of Canada, Defendants.
32616
GREGORY J. RODRIGUEZ, Esq., Attorney for the Plaintiffs
GERALD D. D'AMELIA, Jr., Esq., Attorney for Defendants Robert Checchin, Individually, Robert Checchin d/b/a ABR Tool & Die, ABR Poincoins et Matrices, Inc., s/h/a ABR Tool & Die, Inc.
ANDREW W. KIRBY, Esq., Attorney for Ali Porte, Inc. of Canada
Kevin K. Ryan, J.
Pending before the Court are the motions by the defendants for summary judgment pursuant to CPLR 3212. The Court has reviewed the following documents: the notice of motion, filed January 22, 2004, by Robert Checchin both individually and as ABR Tool & Die, attorney affidavit in support of motion, and attached exhibits, the supporting affidavit from Robert Checchin, sworn to on January 15, 2004, and memorandum of law in support of motion, the notice of motion filed by Ali Porte, Inc. on January 26, 2004, attorney affidavit in support of motion plus attached exhibits and memorandum of law in support of motion. The Court has also [*2]considered the plaintiff's attorney affidavit, sworn to on March 18, 2004, plus attached exhibits, the affidavit of Rodney Schaeffer, sworn to on March 15, 2004, along with attached exhibits, and memorandum of law opposing the summary judgment motions. Finally, the Court has considered reply affidavit, sworn to on March 29, 2004, and reply memorandum of law submitted on behalf of Robert Checchin and ABR Tool & Die, and reply affidavit, sworn to on March 30, 2004, and reply memorandum of law submitted on behalf of Ali Porte, Inc.
On February 7, 1995, Jason McCarthy (hereinafter "the plaintiff") caught his arm in a roll press machine owned by his employer at his place of employment, the NADCOR factory located in Plattsburgh. The accident happened while the plaintiff was cleaning the machine, something he had not done before but was instructed to do by a fellow employee of NADCOR. The plaintiff had seen other workers using the machine before but had never done so himself. The plaintiff's supervisor gave him rubber gloves, thinner and a rag with which to clean the rollers. The plaintiff started to clean the rollers with the power for the press turned off and turned the rollers by hand. According to the plaintiff, his supervisor told him the job would be quicker if the machine was on as the rollers would then turn on their own. The plaintiff was aware prior to that date that if the press was turned on, the rollers turned on their own. The roll press had a sign on it which stated: "DANGER KEEP HANDS CLEAR OF MOVING MACHINERY". Someone turned on the press and the plaintiff continued to clean the rollers. About half-way through the job, one set of rollers sucked the plaintiff's glove in between the rollers and, with it, the plaintiff's arm. As a result the plaintiff suffered serious and permanent injuries.
He and his wife later brought this law suit against the defendants for a number of claims based on strict products liability, breaches of express and implied warranties of fitness, negligent design and manufacture of the roll press and loss of consortium.
Defendant Ali Porte owns all of the stock of NADCOR and both companies are engaged in the same business: the manufacture of hollow metal doors and frames, NADCOR in the U.S. and Ali Porte in Canada. Some of the officers of ABR are also officers of Ali Porte. In March 1993, an officer of both Ali Porte and NADCOR asked defendant Checchin to build the roll press machine for the Plattsburgh factory. Prior to this point, Ali Porte had a similar press in its factory in Canada but NADCOR had been using other doors to do the work of a press. Checchin had previously done work for Ali Porte since 1992 making all of its hinges and other hardware for the doors manufactured by it. NADCOR's vice-president asked Checchin if he thought he could fabricate a machine press like the one in the Ali Porte factory and, after observing it, Checchin stated he could. He had never built a roll press machine before nor any other kind of industrial machinery. Checchin's regular business, and that of ABR Tool & Die, was the manufacture of molds for tools and dies.
After Checchin completed the roll press, Ali Porte tested it. Ali Porte also loaned money to NADCOR to pay Checchin for his work. While the roll press Checchin made had some minor changes in size and structure from the prototype, it was made up of the same components as the prototype. Some of Ali Porte's employees assisted in building the press by cutting and welding the frame.
The defendants have moved for summary judgment on the grounds that as casual manufacturers and sellers, the theory of strict products liability does not apply to them. Further as merely casual manufacturers and sellers, they had no obligation to warn about patent and obvious dangers in the roll press. According to the defendants, the "nip point" of the roll press [*3]was such a patent and obvious danger that they had no obligation to warn the plaintiff of same. Finally, defendants Checchin and ABR urge that they made no express warranties of fitness in either manufacturing or selling the roll press, and since they do not meet the definition of a "merchant" under UCC 2-104(1), there made no implied guarantee of fitness or merchantability.
Plaintiff responds that material issues of fact exist as to whether the defendants meet the definitions of casual manufacturers and sellers such that summary judgment is inappropriate. These issues, according to the plaintiff, are which defendant designed the press, whether it was manufactured in the regular course of the businesses of the defendants and whether the defendants had expertise in the design and manufacture of the roll press.
Since the Court finds that the defendants meet the definition of casual manufacturers and sellers as a matter of law, and since the defect was patent and obvious, the motions for summary judgment must be granted.
Faced with a motion for summary judgment, a Court's task is issue-finding rather that issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The party seeking summary judgment must establish its entitlement to same by evidentiary proof in admissible form sufficient to warrant judgment for them as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the movant fails to present sufficient evidence to eliminate material issues of fact, the motion must be denied (see Winegard v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Further, a court is constrained to view the evidence in the light most favorable to the nonmoving party, giving them "the benefit of every reasonable inference" when deciding whether a triable issue of fact exists (Boyce v Vasquez, 249 AD2d 724, 726 [3rd Dept. 1998]).
In Sprung v MTR Ravensburg, Inc., 99 NY2d 468 [2003], the Court of Appeals discussed the public policy theory behind strict products liability and the exception for a casual manufacturer or seller. Essentially, the manufacturer has the ability and the incentive to ensure that the products it manufactures are safe. In turn the seller of such products is in a special relationship to the public that buys and uses such products. If there are costs associated with defective products, such regular manufacturers and sellers are better able to bear such costs as business expenses. However, "Those same public policy considerations are inapplicable where sales of the product are not part of the ordinary course of the seller's business" (Ibid. at 473). In Sprung, the Court of Appeals held that a company whose business was custom manufacturing could not claim "casual manufacturer" status since it held itself to its customers as an expert in the fabrication of custom products. The sale of, in that case, a retractable floor was therefore part of the custom manufacturer's normal course of business.
Contrasted with the manufacturer in the Sprung case is the defendant in Gebo v Black Clawson Company, 92 NY2d 387 [1998]. In that case, the defendant had built an embossing machine for its own use, its regular business being the manufacture and sale of paper. Some time later, in a one-time bulk sale the embossing machine was sold to a company one of whose employees caught his hand in the "nip point" of the machine and lost four fingers. The Court of Appeals held that this one-time sale, without more, did not make the defendant a manufacturer for the purposes of strict products liability especially since the embossing machine had been made for its own use and not for sale.
When a manufacturer or seller is only a casual one, the duty of care it owes is at most the duty to "warn the person to whom the product is supplied of known defects that are not obvious [*4]or readily discernible" (Sukljian v Ross & Son Co., 69 NY2d 89, 97 [1986] cites omitted).
While no one factor decides whether an entity is a casual manufacturer or seller (Nutting v Ford Motor Company, 180 AD2d 122, 127 [3rd Dept. 1992]), certainly the Court must consider the day-to-day business of the defendants and whether they had previously made or sold roll press machines. Unlike the defendant in Sprung, defendants Checchin and ABR did not hold themselves out to Ali Porte or anyone else that they were experts in the design or manufacture of press machines, or any other industrial equipment for that matter. Their regular business involved making molds and their entire prior business with Ali Porte involved making and selling door hardware. No evidence has been presented to show either Checchin or ABR has ever made before or since 1993 another piece of industrial machinery. Contrary to plaintiffs' assertion, the fact that Checchin stated he could fabricate the press did not dispense on him the status of an expert. Checchin was merely copying an existing piece of machinery and any differences from the prototype were minor.
Ali Porte was in the regular business of manufacturing metal doors and frames. There is no evidence in the record it had ever designed or assisted in the manufacture of a roll press machine or any other industrial equipment before or since the time this roll press was made. Even if it could be said that part of Ali Porte's regular business was to set up the NADCOR facility, asking Checchin whether he could fabricate a roll press did not bestow on Ali Porte the mantle of an expert in design of such equipment. Defendant's Ali Porte's role in the manufacture of the roll press is minimal: it permitted Checchin to observe its roll press machine on about six or seven occasions so that he could devise plans for the press in question. Ali Porte did not purchase the press from Checchin and ABR and resell it to NADCOR, it acted more in the role of a banker for NADCOR in the transaction.
Consequently, the duty owed by Checchin and ABR to NADCOR was to advise it of unknown, latent defects. The danger that someone's hand or arm could get caught between the moving rubber rollers while the machine was turned on was "an open and obvious danger" (Frisbee v Cathedral Corp., 283 AD2d 806 [3rd Dept. 2001]).
There were no express warranties of fitness given to NADCOR when it purchased the roll press machine, therefore, those claims must be dismissed. The implied warranty of merchantability under UCC 2-314(2)(c) is one which guarantees that the goods "are fit for the ordinary purposes for which such goods are used". It is clear to the Court from the affidavit of Rodney Schaeffer, the plaintiff's safety specialist, that this roll press machine was not fit for its ordinary purpose and that some simple changes would have rendered it safe. However, under UCC 2-314, the implied warranty only applies if "the seller is a merchant with respect to goods of that kind". In this case, none of the defendants meet that definition. Under UCC 2-104(1) a merchant is one "who deals in goods of the kind" or otherwise "holds himself out as having knowledge or skill peculiar" to the goods involved. As stated, none of the defendants was a regular merchant of roll press machines or any other kind of industrial machinery. Contrary to the plaintiffs' assertions, by agreeing to build the roll press, Checchin did not hold himself out as having any skills peculiar to the manufacture of roll press machines. He simply copied one that already existed. Likewise, Ali Porte did not hold itself out as any kind of expert by its minor participation in the fabrication of the roll press.
Under UCC 2-315 a warranty of fitness is implied in every case in which the buyer is relying on the seller's "skill or judgment to select or furnish suitable goods". Checchin and ABR [*5]had never prior to the date NADCOR requested a roll press machine made anything like it, nor did Checchin approach Ali Porte or NADCOR and suggest that he could fabricate a roll press. Nothing in the record suggests that NADCOR relied on Checchin's skill or judgment to select or furnish the roll press; he simply copied one already in existence. Conversely nothing in the record indicates that either Checchin or NADCOR relied on some skill or judgment in selecting or furnishing the roll press; Ali Porte had a machine that performed its function adequately and NADCOR felt the need for some similar machine at its facility (see Saratoga Spa & Bath, Inc. V Beeche Systems Corp., 230 AD2d 326, 331 [3rd Dept. 1997]).
For all the reasons stated above, the defendants' motions for summary judgment are GRANTED and the complaint is DISMISSED.
IT IS ALL SO ORDERED.
E N T E R:
Kevin K. Ryan
Acting Justice, Supreme Court
Dated:Plattsburgh, New York
July 30, 2004
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