Bienaime v Reyer
Annotate this CaseDecided on March 1, 2006
Supreme Court, Orange County
Jean Patrick Bienaime and Jeanne Hugutte Bienaime, Plaintiffs,
against
Gary Reyer, d/b/a All Electric, Defendant.
598/04
Lewis J. Lubell, J.
Preliminarily, this Court refuses to consider the plaintiff's sur-reply affirmation as there were no novel issues raised by either Quality or Reyer in their respective reply affirmations and further that plaintiff failed to obtain permission of this Court to submit a sur-reply affirmation in violation of the rules of this Court (See, Kushaqua Estates Inc. v Bonded Concrete Inc., 215 AD2d 993, 994 (3rd Dept. 1995).
This is an action in personal injury stemming from an industrial accident on Quality's premises on October 8, 2001. Plaintiff Jean Patrick Bienaime was employed by Quality whose job on that day was to clean the rollers of a carton making machine/printer when his left hand became caught in the machine's rollers causing a crush injury of his hand.
The aforesaid machine was obtained by Quality second hand from a firm in New Jersey in 1998. In order to transport the machine to Quality's premises, the machine needed to be disassembled, transported and then reassembled at on site. Quality employed an electrician, Kenneth Hall, to disassemble the machine in conjunction with one of its employees at the time of the acquisition. The machine was reassembled at Quality. Mr. Hall first attempted to reassemble the machine but never finished doing so. According to the his deposition transcript, Mr. Hall requested the wiring diagrams for the subject machine before he was able to make the machine operational, but said diagrams were never supplied. According to Mr. Hall, the wiring diagrams were necessary for him to finish the reassembly and installation of the machine.
The machine at issue consisted of among other things, printer rollers upon which ink would collect during the carton fabrication and printing process. Several times throughout the day, these internal ink rollers would need to be cleaned. It is uncontroverted that the machine was equipped with a washing system meant to clean the rollers when the machine was in a closed position. However, the evidence reveals that the wash system was non-functioning at the time of the accident. It was also uncontroverted that the system could have been cleaned by shutting it down, placing the machine in the open position and washing the internal rollers of the ink, but such a process would be time consuming and was not employed.
The uncontroverted evidence further reveals that the machine was designed with a safety interlock, the function of which was to shut off power to the machine's main drive system when the machine's sections were separated. According to the affidavit of Arthur Paull, the former Manager of Product Reliability for the machine's manufacturer, the interlock was designed with a limit switch which was wired into the electrical circuitry of the machine. When the machine is closed, power is permitted to reach the main drive motor which causes the internal rollers to rotate. When the machine is pulled apart, the limit switch is supposed to be tripped and prevent the internal rollers from operating. Mr. Paull's affidavit further reveals that he personally inspected the subject machine and found the interlock device to be present.
Reyer completed the installation started by Mr. Hall. Reyer admitted that he lacked wiring diagrams and that he would be unable to properly fix the machine without the diagrams. A Quality representative asked if Reyer could just get the machine to run without the diagrams to which he responded in the affirmative. In fact, he took the power off of one of the circuits and put the power onto another circuit to make it run and this work was performed long before plaintiff's accident.
The uncontroverted testimony reveals that Mr. Bienaime's job on that day was to clean the rollers of the machine of the ink which built up during the carton fabrication process. In order [*2]to accomplish this task, he opened the machine and while it was in operation, inserted a piece of cardboard onto the rollers to absorb the ink. While in the process of doing so, the rollers caught the glove he was wearing on his left hand and drew it into the machine, thereby crushing his left hand.
According to Mr. Paull's affidavit, the only way the machine's rollers would be able to operate while the machine was in the open position was if the interlock was disabled or the wires thereto were disconnected. Mr. Paull further noted that the interlock was designed into the machine to prevent an accident which gives rise to this action from ever occurring.
Additionally, the uncontroverted evidence revealed that Mr. Bienaime was performing his duties in the manner he was trained by Quality's own employees. Specifically, Matthew Friezo testified that he developed his own method of cleaning the subject machine and trained other employees to clean it while the machine was in the open position and the rollers were operating.
Plaintiffs contend that it was Reyer's responsibility to check the limit switch and that it was improper for Reyer to place the machine into operation without first checking the wiring diagrams to ascertain whether there were any safety devices in the machine which needed to be properly reassembled. Two days after the plaintiff's accident, Reyer went to Quality, looked at the subject machine and discovered that the limit switch was disconnected and would permit the machine to function while in the open position. Reyer also stated that he was familiar with limit switches and other safety devices on other equipment upon which he worked in the past, and that it was his responsibility to make certain on other jobs that the safety devices were properly functioning.
Sal Pizzichetta, Quality's former plant manager, submitted an accident report stating that the limit switch was not functioning and that the cause of the plaintiff's accident was the non-functioning limit switch.
Both Reyer and Quality contend that Reyer was not responsible for the accident's occurrence. They contend that (1) Reyer did not launch a force of instrument of harm, (2) that plaintiff did not detrimentally rely upon the continued performance of Reyer's duties, and (3) that Reyer lacked an exclusive and comprehensive maintenance contract with Quality which would otherwise have subjected him to liability (See, Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 (2002)). Furthermore, Quality and Reyer request the Court to reject the affidavit of plaintiff's expert, Craig Jacobs, asserting that Mr. Jacobs' conclusions are nothing more than mere speculation.
The arguments of Reyer and Quality concerning Mr. Jacobs' qualifications and conclusions are unavailing. Mr. Jacobs' affidavit outlines his qualifications as the Director of Education for the International Brotherhood of Electrical Workers and his review of pertinent materials attendant to this case. Neither Reyer nor Quality proffered the affidavit of any expert to contradict Mr. Jacobs. Mr. Jacobs' affidavit outlines the applicable industry custom and practice and the training he provides to electricians such as Reyer. Reyer and Quality want this Court to disqualify Mr. Jacobs or at the very least ignore his opinions. At this stage, the Court is unwilling and unable to do so. " Proof of a generally accepted practice, custom or usage within a particular trade or industry is admissible as tending to establish a standard of care, and proof of a departure from that general custom or usage may constitute evidence of negligence' [cit. om.]." Munzer v Town of Hempstead, 8 AD3d 248 (2nd Dept. 2004); see also, Trimarco v Klein, 56 NY2d 98 [*3](1982); French v Ehrenfeld, 180 AD2d 895 (3rd Dept. 1992). Mr. Jacobs' testimony presents an issue for consideration by a jury to determine the weight to be afforded that opinion; for the Court to make such a determination at this stage would be invading the jury's province and is inappropriate for determination on a motion for summary judgment. See, Lambos v Weintraub, 246 AD2d 356 (1st Dept. 1998); Mikl v Shufelt, 285 AD2d 949 (3rd Dept. 2001).
"Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue' (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted)." Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3rd Dept. 1989); See also, Moskowitz v Garlock, 23 AD2d 943, 944 (3rd Dept., 1965).To grant summary judgment it must clearly appear that no material and triable issue of fact is presented . . .This drastic remedy should not be granted where there is any doubt as to the existence of such issues,...or where the issue is arguable'...; issue finding, rather than issue-determination, is the key to the procedure.'" Pirrelli v Long Island Railroad, 226 AD2d 166 (1st Dept. 1996)(quoting Sillman v Twentieth Century-Fox, 3 NY2d 395, 404). In making this determination, the court must view the evidence in the light most favorable to the non-moving party, and accord the non-moving party the benefit of every reasonable inference. See, Negri v Stop and Shop, Inc., 65 NY2d 625 (1985); Rizzo v Lincoln Diner Corp., 215 AD2d 546 (2d Dept. 1995); Rose v De ECIB USA, 259 AD2d 258, 259 (1st Dept. 1999). The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case. See, Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Zuckerman v City of New York, 49 NY2d 557, 562 (1980).
While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County,1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.'" Wanger v Zeh, 45 Misc 2d 93, 94 (Sup. Ct., Albany County, 1965), aff'd 26 AD2d 729 (3rd Dept.1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bakerian v H.F. Horn, 21 AD2d 714 (1st Dept. 1964); Jones v County of Herkimer, 51 Misc 2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc 2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957). The drastic remedy of summary judgment is rarely granted in negligence cases since the very question of whether the defendant's conduct was indeed negligent is a jury question except in the most glaring cases. See, Johannsdottir v Kohn, 90 AD2d 842 (2nd Dept. 1982).
Courts are not authorized to try issues in a case, but rather to determine whether there is an issue to be tried. Esteve v Abad, 271 AD 725, 727 (1st Dept. 1947). "Issue-finding, rather than issue-determination, is the key to the procedure. If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Id.; Sillman, 3 NY2d at 404. [*4]
Upon a review of all of the parties' respective submissions, the Court agrees with Reyer and Quality that there is insufficient evidence demonstrating that Reyer either had an exclusive maintenance contract with Quality or that plaintiff detrimentally relied upon Reyer's performance of his contractual obligations with Quality. However, there are questions of fact that arise whether Reyer launched a force of instrument of harm.
In Espinal, supra, the Court of Appeals revisited its decision in H.R. Moch Co. v Rensselaer Water Co., 247 NY 160 (1928), noting that " . . . irrespective of the attendant contractual obligations, tort liability to a third person may arise where the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good' [Moch, 247 NY at 168]." Espinal, 98 NY2d at 139 (emphasis in original).
In other words, once a duty is assumed, it is incumbent upon the actor not to create a hazardous condition or exacerbate and already hazardous condition. See, Varga v Parker, 136 AD2d 932, 933 (4th Dept. 1988); Figueroa v Lazarous Burman Associates, 269 AD2d 215, 217 (1st Dept. 2000); Genen v Metro-North Commuter Railroad, 261 AD2d 211, 212 (1st Dept. 1999); Gordon v Muchnick, 180 AD2d 715 (2nd Dept. 1992); Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522-523 (1980).
In Genen, supra, the Court held that by undertaking to remove snow and ice, the snow removal contractor was "obligated to exercise reasonable care in doing so, or be held liable in negligence where its acts created or increased the snow-related hazard [citation omitted]." Genen, 261 AD2d at 212. The Court further stated that "When a contractor is alleged to have negligently created or increased a dangerous condition by its own affirmative acts, such conduct unquestionably constitutes misfeasance rather than nonfeasance, and the scope of the defendant's duty should be determined under traditional negligence principles, without regard to any breach of contract theory." Id. at 213. Having determined that the claim against the snow removal contractor arose from the contractor's affirmative acts of improper plowing and leaving icy patches, the Court held that the contractor's " . . . duty to exercise reasonable care in relation to the plaintiff arose not out of a contract, but rather by its own affirmative acts that created a risk of injury to members of the public . . ." Id. at 214.
In Church v Callanan Industries, Inc., 99 NY2d 104 (2002), the Court held that one of the defendants, San Juan, did nothing more than neglect to make the highway safer than it was before, rather than making it less safe. See, Id. at 112. In other words, if there is evidence that a defendant affirmatively made a condition more hazardous, a contractor may be held liable to third-parties who are injured as a result of that conduct.
In the instant case, the plaintiffs' submissions raise an issue of fact whether Reyer's conduct in making the subject machine operational without re-engaging the limit switches was
negligent and whether his conduct departed from the standard of care in the industry. Therefore, the motions of both Reyer and Quality are denied.
The parties are ordered to appear for a status conference on April 4, 2006 at 9:00 a.m. at the Orange County Government Center, Courtroom No.4.
The foregoing constitutes the decision and order of this Court.
Dated: March 1, 2006 E N T E R
Goshen, New York [*5]
__________________________
HON. LEWIS J. LUBELL,
J.S.C.
TO:Roland T. Koke, Esq.
Rende, Ryan & Downes, LLP
202 Mamaroneck Avenue
White Plains, New York 10601
McCormak, Damiani, Lowe & Mellion, Esqs.
499 Route 304
PO Box 1135
New City, New York 10956
MacCartney, MacCartney, Kerrigan & MacCartney
13 Broadway
Nyack, New York 10960
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
