Minelli v Watkins Aircraft Support Prods., Inc.

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Minelli v Watkins Aircraft Support Prods., Inc. 2011 NY Slip Op 33358(U) December 1, 2011 Supreme Court, Nassau County Docket Number: 21491/08 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ,.... ,.. . [* 1] Short Form Order PRESENT: SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY Murphv Justice of the Supreme Court Honorable Karen MICHAEL MINELLI and JILL MINELLI, Index No. 21491/08 Plaintiff(s), Motion Submitted: 9/30/11 Motion Sequence: 003 -against- WATKINS AIRCRAFT SUPPORT PRODUCTS, INC. a/kla WASP, INC., Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply..................................................................... , a/k/a WASP , Inc. for Motion by defendant Watkins Aircraft Support Products, Inc. the complaint , order pursuant to CPLR 9 3212 granting it summar judgment dismissing is granted. This is an action to recover damages for personal injuries allegedly sustained by plaintiff while he was in the process ofloading an airplane in the course of his employment. Plaintiff alleges that his foot became caught in the hole of a cargo dolly. The accident occurred on December 1 2005. Defendant moves for summary judgment on the grounds that plaintiff has failed to substantial establish that the subject cargo dolly was defective and that the defect was a 2d429 , 422 (See, e. g., Bolm v. Triumph Corp. 71 A. 39 N. Y.2d 376 see also , Micallef 2d 969 (4 Dept. 2d 115 (1976)). Defendant further asserts that plaintiffis unable 348 N. 2d 571 , 384 N. that the cargo dolly was defective in any fashion which defect was the factor in bringing about his injuries. , 1979); to establish " v. Miehle Company, [* 2] proximate cause ofthe accident or that such defect existed at the time that it left the control 2d221 (2dDept. , 1980); of WASP. (See, e. g., Blairv. Martin 78 A. D.2d 895 , 433 N. 2d 870 (2d Dept. , 1976); (, 23 of Michael Barry v. Manglass 55 A. 2d 1 , 389 N. Congdon s Affirmation). Overall , defendant maintains that plaintiff is unable to establish any of the case with respect to either design or requirements for making out manufacturing defect. " Plaintiff is unable to specifically identify any defect either in prima facie manufacturing or design and is unable to say that any defect in manufacturing or design which may have been the proximate cause of his accident existed when the dolly in question at' 26) left the control of WASP. (I d. As to plaintiffs claim that the defendant " failed to war, " defendant notes that the product in question is a cargo dolly which is not an inherently dangerous product. It has been held that , where the product causing the injury is not inherently dangerous when used according to directions for the purpose for which it was intended , a manufacturer or vendor (See, for example, Mesick v. Polk 296 N. Y. 673, 70 N. E.2d 169 Soto v. E. 2d 691 (3d Dept. (1946); Gielskie v. State 10 A. 2d 471 200 N. at' 27). 283 A. D. 896, 130 N. S.2d 21 (2d Dept. is under no duty to warn. , 1960); , 1954)). Brown Company, (Id. As to any claim that defendant breached any warranties that the cargo dolly was fit for a particular use , plaintiff must establish that he had been injured by the product, that the injury occurred because the product was defective and that it was unfit for the purpose intended and that the defect existed when the product left the hands of the manufacturer. 2d 461 Paglia 32 N. 2d 330 , 298 N. 2d 622 345 N. (See (1973)). , for example, Codling Plaintiff must also (See, Wright v. Carter establish reliance on the warranty. Products, Inc. 244 F. 2d 53 , (1957)). Here , plaintiff was not using the cargo dolly for any purpose for which it was designed or manufactured but , rather , as a step stool. The device was a cargo dolly, specifically the tow bar assembly, not a step stool. As such , plaintiff canot claim the benefit of any warranty as he was using the device for a purpose other than its intended purpose. " (Congdon s Affirmation , , 30). Based upon the foregoing, defendant concludes that " the accident and injuries in this case were due to plaintiffs own misuse of the cargo dolly in question. By placing his right foot in such a position that it spanned the opening between the tubular tow bar and the reenforcing gusset and using it as a foothold , he was using those portions ofthe cargo dolly for at' 32). a purpose for which they were neither designed nor intended. (ld. deposition testimony of John Hoeper as well as Mr. Hoeper s affidavit. Mr. Hoeper has been employed In support thereof, defendant submits plaintiffs deposition testimony, the [* 3] by WASP for a total of 24 years. Mr. Hoeper is currently Vice President/GSE (Ground Service Equipment/iltary Division) and has held such position for seven years. As such he is familar with all ground service equipment manufactured by WASP including cargo dolles of the type involved in this action. In his affidavit , Mr. Hoeper states , in pertinent par , as follows: It is my understanding that plaintiff, Michael Minell , has testified that the accident and his injury occurred while he was assisting in the loading of a cargo container from a cargo dolly into the body of an aircraft , and that, while doing so , he placed his right foot on a portion ofthe tow bar such that it spanned the opening between the tow bar itself, and one of the reinforcing gussets described above. Based upon my experience at WASP and my involvement with cargo dolles , I can state with certainty that the tow bar assembly including the main central tow bar and the two reinforcing metal gussets on either side were not designed , manufactured or intended to be used as a foothold for the puroses of mounting the bed of the dolly itself. Using the tow bar assembly in such a fashion was not anticipated to occur during the normal and expected use of the cargo dolly. As I testified at my deposition of October 1 , 2010 , I have no knowledge of any accidents similar to the one involving Mr. Minell having occurred at any time before or subsequent to his accident or of any complaints regarding the tow bar assembly itself. In my position as V. GSE/Miltary Division , I would anticipate that any such accidents or any complaints about the tow bar assembly would be brought to my attention. Each such cargo dolly manufactured by WASP is inspected and tested prior to being released into the stream of commerce for purposes of identifying any defects in the manufacturing process and ascertaining its abilty to perfonn its intended function. Any such dolles found to be defective in any way, including defects in the tow bar assembly, are corrected , if possible , at the factory prior to shipment. Defects which are not easily repaired would typically result in the affected unit being stripped of its usable parts and reconstructed. Based on my understanding of that incident and my knowledge of WASP' s products and the manner in which they are manufactured , it does not appear that any defect in design or manufacture of the cargo dolly in question was a cause of Mr. Minell' s accident or injuries. [* 4] prima showing of entitlement to judgment as a matter of law, tendering sufficient evidence (Alvarez v. Prospect Hosp. , 68 On a motion for summary judgment , it is incumbent upon the movant to make a facie to demonstrate the absence of any material issues of fact Zuckerman v. City of New 2d 320 , 324 , 501 N. 2d 572 , 508 N. 2d 595 (1980)). The failure to make 49 N. 2d 557, 562 404 N. 2d 718 , 427 N. that showing requires the denial of the motion regardless of the sufficiency of the opposing 2d 923 (1986); York, 2d 94 (2d Dept. , 2005); 793 N. 2d 823 (2d Roberts v. Carl Fenichel Community Servs., Inc. 13 A. D.3d 511 , 786 N. papers 3d 326 ,. 17 A. (Mastrangelo v. Manning, Dept. , 2004)). Issue finding, as opposed to issue determination is the key to summary 2d 584 (1989)). (see Kriz v. Schum 75 N. Y.2d 25 549 N. 2d 1155, 550 N. Indeed ( e )ven the color of a triable issue forecloses the remedy (Rudnitsky v. Ilobbins 2d 354 (2d Dept. , 1993)). 191 A. 2d 488 489, 594 N. judgment entitlement to judgment as (See, Parker v. Raymond Corp. 87 A. D.3d 1115 06827, (2d Dept. , 2011)). On this record , defendant has established its a matter oflaw dismissing the complaint. 930 N. S.2d 27, 2011 N. Y. Slip Op. prima facie Where the moving par "has demonstrated its entitlement to summary judgment , the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so 77 N. Y.2d 157, 566 N. 2d 639, 565 to do. Associates, Inc. v. Giancontieri, quoting Zuckerman v. City of New York 49 N. 2d 557 560 , 404 2d 595 (1980)). Even viewing the burden of a summary judgment E.2d 718 , 427 N. opponent more generously than that of the summar judgment proponent, plaintiff fails to (see Friends of Animals v. Associated Fur Mfrs. 46 N. raise a triable issue of fact 1065 , 1068 390 N. E.2d 298 416 N. S.2d 440 (1990), 2d 790 (1979)). Atbar, plaintiff has not come forward with any proof in evidentiar form that the accident was attributable to any defect in the product. Plaintiff simply points to gaps in the (See movant' s proof as opposed to affirmatively demonstrating the merits generally, Amendola v. City of New York - A. D.3d _ 2011 WL 5433797 (2d Dept. of his claim. 2d 313 2011); Cummins v. New York Methodist Hosp. 85 A. D.3d 1082 , 1083 926 N. 2d 124 (2d Post v. County of Suffolk 80 A. D.3d 682 , 685 , 915 N. (2d Dept. , 2011); Dept. 2011)). In view of the foregoing, the motion is granted and the complaint is dismissed. The foregoing constitutes the Order of this Court. Dated: December 1 , 2011 Mineola, N. ENTER D DEC 0 9 2011 NAS8AU COUNTY co GLlRf l OFFICE

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