Aransky v Comfort Mart Distribs., Inc.

[*1] Aransky v Comfort Mart Distribs., Inc. 2007 NY Slip Op 52621(U) [24 Misc 3d 1235(A)] Decided on July 9, 2007 Supreme Court, Albany County Platkin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2007
Supreme Court, Albany County

Michael Aransky, Plaintiff,

against

Comfort Mart Distributors, Inc. and SIMPSON MANUFACTURING COMPANY, Defendants.



235-04



Law Offices of Kris T. Jackstadt

Attorneys for Defendant Comfort Mart Distributors, Inc.

(Robert S. Bruschini, Esq., of Counsel)

900 Watervliet-Shaker Road

P.O. Box 12699

Albany, New York 12212-2699

Thorn, Gershon Tymann and Bonanni, LLP

Attorneys for Defendant Simpson Manufacturing Co.

(Stephanie A. Henry, Esq., of Counsel)

5 Wembley Court

P.O. Box 15054

Albany, NY 12212-5054

Roemer Wallens & Mineaux, LLP

Attorneys for Plaintiff

(Matthew J. Kelly, Esq., of Counsel)

13 Columbia Circle

Albany, New York 12203

Richard M. Platkin, J.

This a motion for summary judgment by defendants Simpson Manufacturing Company ("Simpson") and Comfort Mart Distributors ("Comfort"), seeking dismissal of plaintiff's complaint. Plaintiff is suing for personal injuries sustained during a workplace accident in January of 2001.[FN1] A ladder upon which plaintiff was working "kicked out", and he grabbed onto a metal bracket with sharp edges to secure himself, thereby cutting his hand.Plaintiff sued Simpson as the manufacturer and designer of the bracket and Comfort as the distributor/retailer.

Defendants move for summary judgment on the grounds that (1) plaintiff cannot meet his burden of demonstrating that defendants manufactured and sold the bracket at issue; and (2) that the alleged design defect was not the proximate cause of plaintiff's injuries.The Court will consider each of these arguments in turn.

It is well established that summary judgment is a drastic remedy and should only be granted if there are no material issues of disputed fact (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957] ). In evaluating a motion for summary judgment, a court should determine whether material issues of disputed fact preclude the grant of judgment as a matter of law (S. J. Capelin Assoc. v. Globe Mfg Corp., 34 NY2d 338 [1974]). The party moving for summary judgment has the initial burden of coming forward with admissible evidence to support the motion, so as to warrant the Court directing judgment in movant's favor; the burden then shifts to the opposing party to demonstrate the existence of any factual issue requiring a trial of the action (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

Identity of Manufacturer

Defendants rely primarily on the affidavit of Eric Adair, the manager of Simpson's engineering research and development department, in support of their contention that defendants did not manufacture or sell the bracket upon which plaintiff injured his hand. Mr. Adair avers, in pertinent part:

3. Plaintiff alleges that the bracket on which he was injured is a Duratech Extended Roof Bracket . . . which Simpson designed and manufactures.

4. I have reviewed plaintiff's deposition transcript wherein he describes the injury-producing bracket as U-shaped.

5. The Duratech Bracket is circular and completely closes around the chimney by the use of a bolt and nut. A copy of the Duravent Bracket design drawing is attached hereto as Exhibit A.

6. Plaintiff's description of the bracket as "U-shaped" simply does not correlate with the design of the Duratech Bracket. [*2]

***

8. The Duratech Bracket is packaged in a box to be sold by vendors, such as Comfort Mart.

(Adair Aff. ¶¶ 3-6, 8).

In addition, defendants rely on the portion of plaintiff's deposition in which he testified that the bracket purchased from Comfort was not provided in a box or other packaging material indicating that it had been manufactured by defendant Simpson (Henry Aff. Ex. G, p. 50). In this connection, defendants also complain that plaintiff failed to safeguard the bracket and, due to its absence, defendants have been prejudiced in proving that they did not manufacture or sell the allegedly defective product.

In opposition, plaintiff relies primarily on the sales sheet/invoice from Comfort, dated January 19, 2001 which reflects the purchase of a "Duratech Extended Roof Bracket", a product that defendant Simpson admittedly manufactures. Plaintiff testified at his deposition that the bracket listed on the invoice was the same one being installed on January 26, 2001, the date of the accident (Henry Aff. Ex. G, p. 42; Aransky Aff. ¶ 10). Further, when asked to describe the bracket at issue at his deposition, plaintiff testified, in pertinent part:

A. Well, like a - - like a circle (indicating) bracket with two - - two ears that go out, you know, like a circle. It would go around this (indicating) with two ears that come off to the side to support it to screw it so you could lock it to the - -

Q. Was a cylinder on top? I mean, the two ears came off of a cylinder or circle?

A. The bracket is like a half circle, shaped like a U, that goes off the eight-inch pipe with circles or tabs or ears that goes out, and you lock to the concrete wall to kind of support it.

(Henry Aff. Ex. G, p. 38)

On a motion for summary judgment, defendants have the initial burden of establishing, as a matter of law, that they did not manufacture or distribute the allegedly defective product (see Abulhasan v Uniroyal-Goodrich Tire Co., 14 AD3d 900 [3rd Dept 2005]). If defendants meet that burden, plaintiff can establish "[t]he identity of a manufacturer of the product through circumstantial evidence . . . . notwithstanding the destruction of the allegedly defective product after use . . ." (Healy v Firestone Tire & Rubber Co., 87 NY2d 596, 601 [1996]). However, plaintiff must establish it was reasonably probable, and not merely possible, that defendants were the source of the product (id. at 602).

Applying these principles, the Court determines that plaintiff has raised a triable issue of fact regarding whether defendants manufactured and distributed the alleged defective bracket.[FN2] [*3]Assuming arguendo that the testimony of Mr. Adair is sufficient to establish as a matter of law that the bracket described by plaintiff is not one manufactured by Simpson, plaintiff has come forward with sufficient evidence to demonstrate a reasonable probability that defendants were in fact the source of the bracket. In addition to the documentary evidence showing the purchase of a Duratech bracket manufactured by Simpson, plaintiff testified that the bracket he installed was shaped "like a circle" and "that goes off the eight-inch pipe with circles." While plaintiff's testimony is not entirely clear on this point, this description, along with the documentary evidence showing the purchase of a Simpson bracket, is sufficient to establish a reasonable probability that defendants were the source of the bracket.

Accordingly, summary judgment on the basis that defendants were not the source of the allegedly defective bracket must be denied.

Proximate Cause

Defendants also contend that any defect in the design and manufacture of the bracket was not the proximate cause of plaintiff's injury. For liability to attach, "it must be established that the marketed product in question was designed in such a way that it was not reasonably safe and that the alleged design defect was a substantial factor in causing the [plaintiff's] injuries . . . ." (Blandin v Marathon Equip. Co., 9 AD3d 574, 576 [3rd Dept 2004]).

In support of summary judgment, defendants rely on the plaintiff's testimony that the ladder "kicked out" from under him while he working on it and that he had removed his work gloves prior to the accident, despite knowing that work gloves were necessary to protect against the sharp metal edges of the bracket (Aff. Henry, Ex. G, pp. 35, 43-44, 53, 87). Defendants contend that the slipping ladder and the lack of appropriate protective gear were the exclusive proximate causes of plaintiff's injury, not any alleged defect in the bracket. Defendants also rely on the Adair affidavit, wherein he avers that "the Duratech Bracket was not designed or intended to be a safety device", and "met all applicable safety standards and guidelines" for its intended purpose as a bracket (Adair Aff. ¶¶ 10-11).

Plaintiff, strangely, is silent with regard to this prong of defendants' motion for summary judgment. However, viewing the evidence in the light most favorable to the plaintiff, it is clear that this action cannot be maintained.

"It is well settled that [w]here the evidence as to the cause of the accident is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury' . . . ." (Lee v New York City Hous. Auth., 25 AD3d 214, 219 [1st Dept 2005] [internal citation omitted]). Further, "the law draws a sharp distinction between a condition that merely sets the occasion for or facilitates an accident and an act that is a proximate cause of the accident" (id.).

The Court concludes that the independent and intervening actions of the ladder "kick[ing] out", causing plaintiff to lose his balance, and plaintiff's failure to wear the safety gloves he knew were required for working with this type of metal bracket were the exclusive proximate causes of plaintiff's injury. As such, this case is similar to Dickinson v Dowbrands, Inc. (261 AD2d 703 [3rd Dept 1999]), in which plaintiff was ascending a flight of stairs while carrying a box of plastic [*4]wrap that had a sharp, serrated edge. Plaintiff fell and cut her hand on the serrated edge of the box. In dismissing plaintiff's claim, the Appellate Division agreed with the trial court that "the sole proximate cause of the plaintiff's injury was her fall, and this independent and intervening act was so attenuated from the defendants' conduct that responsibility for the injury should not reasonably be attributed to them'" (Dickinson v Dowbrands, Inc., 261 AD2d at 703, quoting Gordon v. Eastern Ry. Supply, 82 NY2d 555, 562 [1993]).

The brackets at issue were designed and intended to secure chimneys to a roof; not to be used as a safety device in situations where a ladder "kick[s] out". Further, plaintiff knew that brackets were sharp and that safety gloves were a necessary precaution for working with and around them. For that reason, plaintiff and his fellow employees "always use gloves because stainless steel's so sharp." (Henry Aff. Ex. G, p. 53). Under the undisputed facts of this case, the intervening acts of the plaintiff removing his safety gloves, the ladder slipping and the bracket being grabbed in an attempt to stop his fall is not a "natural and foreseeable consequence of a circumstance created by defendant." (Kush v City of Buffalo, 59 NY2d 26, 33 [1983]; cf. Holloway v Willette Corp. of N.J., 280 AD2d 876 [3rd Dept. 2001] [use of wall-mounted soap dish to assist in getting out of bath tub was a foreseeable but unintended use of such product; Gonzalez v Vargas, 189 AD2d 732 [1st Dept 1993] [use of railing adjacent to stairs topped with jagged metal ridges foreseeable to prevent fall]).

As in Dickinson, supra, it would be unreasonable to attribute plaintiff's injury to anything other than the falling ladder and his failure to wear the safety gear that he knew was required for working with the sharp metal bracket. These independent and intervening actions break any causal connection between the alleged design or manufacturing defect and plaintiff's injuries. Accordingly, defendants are entitled to dismissal of the complaint.

Accordingly, it is

ORDERED that defendants' motions for summary judgment dismissing the Complaint is GRANTED.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to counsel for defendant Simpson. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

July 9, 2007

Richard M. Platkin

A.J.S.C. Footnotes

Footnote 1:By Decision and Order dated June 14, 2005, this Court (Malone, J.) limited plaintiff's claim against defendant Simpson to a "negligence claim for defective design and manufacture of a bracket with edges that were too sharp."

Footnote 2: While the Court is mindful that the absence of the bracket may put defendants at some disadvantage, it appears that the bracket was, until recently, still in place at the Thruway Authority work site. Nothing in the record before the Court indicates that defendants took any steps to acquire or inspect the bracket while it remained in the possession of the Thruway Authority, a non-party to this action.