Capuano v Rae Corp.

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Capuano v Rae Corp. 2013 NY Slip Op 32353(U) September 23, 2013 Sup Ct, Suffolk County Docket Number: 08-19859 Judge: Daniel Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 1hI)FS KO C' \L KC) I1011 1 ) ~ Z N I I ~ 12/11\11 1 IN ~L Justice of'tlie Supreme Court blO'1 ION DAY'E 7-3- 1 (004) 2 MOTIONIIAI rs 10-26- (005 & 006) I 2. h l 0 I ION DATE 11-3-12 (007) ADJ. DATE 4-213 Mot. Seq # 005 - MD # 006 - XMG ## 007 - MC x LOlJlS CAPLJiZNO, P 1ai n t i ff. - against 08-19859 12-01 I1901 CI-IURBUCK CALABRIA JONES, et al. Attorneys for Plaintiff 43A East Barclay Street Hicltsville, New York 1 180 I I-IUENKE & RODRIGUEZ Attorneys for Defendant Rae Corp. 1 Huntington Quadrangle, Suite 2C 18 Melville. New York 11 747 - BELLO & LARKIN Attorneys for Defendant Therma-A-Trol 150 Motor Parkway, Suite 405 Hauppaugc,New York 1 1788-5 108 I~erenclants. : x ORDEKED t h a t t lic 111o t i on by de f'cndan t 'I 'lieim-A -'I is clenicd: and it is dismiss in^ tlic c:oinplaint I3'S'TEIN FRANKINI & GRAMMATICO Attorncys for Defendants Chcvalley -45 Crossways Park, Suitc 102 Woodbury. New York I 1797 '1.0 I . I nc . seek i ng SU niniary .j iidgment [* 2] OKDl<RED that the cross motion 171 dcf'cndant C'he\~alIe~ FSnterprises. Ltd. st.el;in~ summ;ir!' juilgmi'nt t.lismissing the complaint is grunted: anil it is tiirtlier 1' I o i 1 1 5c'.ipu;iiio coiiiniciicccl this x t i o n to rccocci d m a g c s for injuries lie dlegedly \iist,iiiit'd a s ' ie\iilt o f L i slip and f d l t l i d occurieci 'it the Clnre Rose. Inc. truck barn, located at 72 West I \\eiiiie i n t h I o \ \ n 01' Broohhaven, on .lune 2 5 , 3005 It IS alleged that plaintifi's accident occurred as he [\'is stepping iip into the driver's seat ol'a Clare R o w truck when. after stepping on a slippery substance on lllcuiiti i the Iloor. h i \ I ight fbot slipped on a step leading into the truck's cab, causing him to fall backwards onto t h e ground. At the time of the accident, plaintiff was emploqed by Clare Rose, Inc. as a driverisalesinan. By his bill of pariic~ilars. plaintiff alleges that Clievalley Enterprises, Ltd., s/h/a Chevalley & Wallace I'lumbing & 1 Icating. Inc.. Chevalley, Iiic (lieieinafter collectively referred to as "Chevalley") and Therm\ - [7~ul. negligentl! installed the pipes and "hook-up" to the cooliiig/refrigeratioii system in the truck Inc. barn at the Clare Rose facility, thereby creating a dangerour condition. Plaintiff also alleges that defendant liae Corp. negligently manufactured, designed and installed the component parts used in the cooling systen1. I n earl) 2000. Clare liosc contracted with Therm-A-Trol to install a new rcfrigeration system for its dclivei 4 trucl\; that was dcsigncd by a company named Multiples System. As designed, the new system consisted of'pipes attached to the ceiling o f t h e Clare Rosc truck barn which allowed glycol, the coolant iiwd i n the delivery trucks' refrigeration system, to flow into the hoses connected to the delivery trucks ovei night to rcti-igerate the inventory of beverages stored therein. A valve on the end of the hose and a connected tlie two pieces together and allowed the glycol to be pumped into the valve on the deli\rerq tri~ck dclivei y truck 5 refrigei ation system. The coolant's flow through tlie hose was controlled by an electrical system. I'rioi to disconnecting the hose from thc truck, the driver was required to shut the electrical system off I herm-A- 11-01subcontracted the instcillation of the pipe work that ran through tlie ceiling and into each trLicL bai l'or the 1 cli igeratioii system to Chevalley Therm-A-Trol installed the "hook-ups"to half of tlie I I ~ I I I C I \. pct f b i mcd the I d v e and small pipe corinwtioiih. 1 x 1 Ihinicd pressure testing, and tested the pipes ~ I t e they \ I C I i' insialled hy Chevalley to ensure they were not leaking r l'Iiei~iii~-~\-'I.i~(~l no\\. moves for sunimary jiidgment on tlic basis that it did not create o r have actual 01cc>tistructi\rc tiotice ol'thc alleged def'ective condition that rcsultcd in plaintiff's accidcnt and subscquent i i1.i 11 r! . ' I'herm -.4- ' I ' i m 1 a 1 so con tends that plaint i 1 s uiiablc to establish thc causc ol'his l 1 and, therefore, a1 sum mai-y ci i sill i ssal i s \i-arrantcd. In support of' the mot ion. 'l'lierm-A-7'roI submits copies of' the pleadings. t lie part i es . cl epos i t i on t i'an ipts. photographs ol'thc situs of'thc accidcnt, and a copy 01' plaintiff's accident I ~ C ~ O I I('liccal IC!. . cross-moves 11~stmniary j d g n i c n t on thc snmc basis as Therm-A-Trol. In support of tlic ~ i i o t i o t i .( ' l i ~ allc1- suhmits copies ol'thc pleadings, its o \ v n deposition transcript, and a copy o f thc \ coiltract bct\\ecn C'hc\,iillcy anil 'I hcrm-A-Trol 1111. pipe installation at the Clare Iiosc facility in the I'aichoguc. Plai n t i 1'1'clocs not opposc tlic motion hy ('Iic\~alley. but he o p p ~ s c s motion by '1herm-Athe 1'1.01. xgititiy t n a t there ;ire triable issues 01' fact a s to \idicther ~I'herm-A-'I'rc,1 had notice of'glycol leaks from thc coiiiicctioiis. 111 opposition ol'thc motion, plaiiitil'l'submits the :illidavit ol' Rae Corp.'s espcrl, Johii h4 cM;lll LIS. [* 3] 1'0 establish a prima lhcie casc of negligence, a plaiiitifl'iiiust demonstrate the esistence of a duty owed by the defendant to the plaiiitifi; a breach of that duty. and that the breach of that duty was a prosiiiiate causc of tlie plaintiffs injury (see Piilka v Edelvlinii. 40 NY2d 78 1, 390 NYS2d 393 [ 19761; IiieviiiLiii v Pliilip. 84 AIl3d 103 1. 924 NYS2d 112 [2d Dept 201 11; Denishick v Coi?zniirtiity HOUS. Mgt. Corp.. 34 AI1:id 5 18, 824 NYS2d 166 [2d Dept 20061). A landowner has a duty to maintain his or her propert)' i n a reasonabl\r safe condition in view of the esistiiig circumstances (see Ttlgle v Jacob, 97 NY2d 165, 737 NYS2d 33 1 [2001]; Denishick v Conrniunit'j Hurls. Mgt. Covp.. sziprn). The nature and scope of t h a t duty and tlie pcrsons to whom it is owed require consideratioil of the likelihood of injury to another 1i.oiii a dangerous condition on the propcrty, thc seriousness of the potential iii-jury, the burden of avoiding f the risk. and the lixesecability of a potential plaintifFs presencc on the property (Gcrlindo v Torvri o Clrrrkstoiivi. 2 UY3d 623, 636, 781 NYS2d 249 [2004]qiiotiiig Kush v City qf Brfftllo,59 NY2d 36, 2930, 463 NYS2cl 83 I 119831; .see PertlItu 11 Heiiriqirez. 100 NY2d 139, 144, 760 NYS2d 741 120031; Bnsso \*hfi//er.. N Y N 333. 386 NYS2d 564 11976l). 40 [* 4] conciiiic,n that ~llcgcill! resiilted in plaintiti-s accicicnt (.YL CJ DOIIL S 1 Xeiv York CiflqHolrs. A i r f h . . 8 1 AD3d 554.017 ?i I S?J 1SO j ! s t Ilept 201 I ] : Tir/iiiiCjr(r i*~Veitj I orh- Citi+Tr. , A i { t / i . . 41 ,4113d 135. S3GNYS3d 610 I 1st I k p t 200 7J:L)i/it>soIi I Ruitiioii KeiiIti Cor./).. 303 :\Il?d 70s.7 5 8 NYS3d 100 [3d Dcpt 20031). I<ohcrt S c i t ~iestif iiig on b c h d f of l lieriii-: i- I rol at ;in csaiiiination before trial. stated that he is the . o\\.iicr and prcsiJciit oi the coiiipan~~. tlint the conip:iii! performs heating. air condition. anci niid re ti-igcration instal lation and repairs. Seitz testi tied that l licr~ii-~\- frol sl y performs refrigeration on s e n ices and rcpiirs or C l~ire i o s e . 1 le testitied that in early 2002.~l-lieriii-~\- l~r[)l contracted by Clare t was I<osc to install the piping fbr ils new refiigeration system ;it its l atclioguc facility and that it subcontracted [lie iiistallatioii of the larger piping work to Clici~ille!~.Scitz testified that he saw the plans for h e i.cli.igcration sj stciii, altliougli the prqject was super\,iseci by his now-deceased son. Hc testified that l~lieriii-f i- ~ i.(~l pcrtbriiicd the hook ups to half o f tlie Clarc Rose trailers, and connected the smaller piping to the larger piping that was installed by Chcvalley, and that it tested the pipes after the installatioii to eiisiire that the!, were not 1eal;iiig Iluids. Seitz testilied that approximately six months after the initial installatioii of the refrigeration system all of the valves coiiiiectiiig the hoses and the trailers were replaced, because Therm-A- fro1 \vas informed by Clare Rose that glycol was leaking due to improper connections. Seitz also testified that Therm-A- fro1 received complaints from Clare Rose drivers about the new refrigeration system, stating that they were having a dif ficult time placing the valves in the sockets for the connections to the hoses from the trucks. Seitz further testified that the valves had to be replaced again in either late 2004 or early 2005, because the valves were being ripped out by the Clare Rose drivers when they drovi. the triicl<s away. I n addition. plaintiff tcstilied that, as a c3ri\~er/salesiiiaii.lie was required to unhook his delivery triicl\ l roiii the refrigeration system, aiid that the trucks were hooked up to the refrigeration system in the evenings after they were loaded with the followiiig iiioriiing s deliveries. Plaintiff testified that 011 the morning of his accident he arrived at the Clare Rose truck barn between 5 : O O a.111. aiid 5:30 a.m., that he disconnected the hose connected to his truck aiid buiigec corded it to the support beam, and that as he climbcd up thc slcps o f the trailer, his right h i t slipped. causing him to fall backwards aiid strike his right shouldei on thc ~ r o i i n d .IIe testified that he slipped aiid fell on a slippery substaiice that he believed to be gl>col. a l t h o u g h he did not see the substance prior to his accident. However. he testificd that after he clisconnectcd t h e h o s e some 01 tlie fluid leal<ed onto his liands and onto the lloor. Hc also testilied that he did not ~ c c a lIlI lic turiicd of f the electrical system prior to disconnccting the hosc f roiii his truck. Plaintill further tcjti ficcl t l w t prior to his accident lie made iiuiiicroiis complaints to his siipci-visors about glycol IeaLing onto t h e floor ol thc truck bmi Croiii thc coniicctioiis attachccl to the hoses. but iicvcr complained dll.cctly lo I hclIll- \- I ro1 [* 5] I lo\ic'\ ci. ( ~ h < i~ l cIi'is e\tabllshed J p r i m a ~ a c i c w that i t neithcr created n o r had notice of the c l ~ c J c l ~ ~ c icoiiilition th,tt iilIcgedl~c m s e d plai~itil'f~s t \ iiilury ( \ c o Lrtir)~ teisrirr Gletr Hotire Oivtzers h s r z , 1Irc.. S? ,\lI?t.l 1 1 00. 930 NYS2d 193 L d l k p t 201 11: Rirbiir ifCq&r Home, 39 AD3d 840. $134NYS2d 3 3 16 11~1 k p t 20071.Pcillettcr v Plioeiii-v Betlerriges, Itre.. 29 AD3d 659. 8 16 NYS2d 122 1% Dept ZOOS]). I Iiene Chc\,cillc!. testitling on behalf of' Chevalley at an euaiiiination bcfore trial, stated that he IS the o\viier o I' the coiiiprin! and that his coiiipaiiy was involved in the iiistallatioii of the refrigeration systeiii at Clare Rose's I'atclioguc l'acility. He testified that Chcvalley iiistalled the feeders and rcturiis from the chiller to each truck b q based iipoii the drawings and specifications provided to it by Therm-A-Trol. He testified that ('her allej did not install any of the pipes in the truck bays of the building and that it did not install any of'the drop lines, i.e.. hoses, that were connected to tlie trailers o f t h e Clare Rose trucks ¬le further testified that once this particular .job was complete, Clievalley \vas not involved in servicing the refrigeration system, that he w a s never informed about any leaks in the refrigeration system, and that he has not returned to Clare Rose's facility lo perform any additioiial work since Chevallep installed the pipes for the refrigeration s! stcm. I n oppositioii to Clievalley's prima i'acie showing. plaintiff [ailed to raise a triable issue of fact that Chevalley either created or had actual or constructive notice of the alleged defective demoiistrCitiiig condition that resulted in plaintiff's injury (see Huvtlejj v Wclldbumi, Im.,68 AD3d 902, 893 NYS2d 272 12d Dcpt 201 01: Joseph 11 New York Cit') Tv.Autlt., 66 AD3d 842, 888 NYS2d 533 [2d Dept 20091). .\ccord1ngly. ('hevalley's iiiotioii for suiiiinal-y judgment disiiiissiiig tlie complaint against it is granted. 1 1 Rae C'orp. moves fiir summary judgment on the basis that it did not manufacture. desigri or install thc refrigeration system that allegcdly causcd plaintiff-s accident. Rae Corp. also asserts that it merely pro\'idcci ccrtuiii component parts that were used in the refi-igeration system, which was dcsigncd by Multiplci Syslciiis. aiid that thc component pal-ts t h a t i t provided wcrc not a part of the apparatus that allegcdl!, causcd plaintill's iii,jury. I n support of'thc motion. Rae Corp. submits copies of thc pleadings, the ~xirtIcs'deposition tran;cri pts, and ;i copy ol'thc affidavit o f its expert. .lohii MCM~IILIS. 1311aintiffdoesnot oppose I i x ('orp..s motion Ilir summary judgiiicnt and has not submittcd any cvicteiicc in opposition to thc iiiotioii. [* 6] I ICIC. R ic ( oip has es~iblisheclits prima Licie ciititleincii~ judgniciit JS cl matter of law by to dcmonstr,iting that the! c \\ is no causal relationship between the component parts that it supplied to Vlultipleu Systems that nere incorporated into the design of the refrigeration system at the Clare Rose l x i l i t ! 111 I atchog~icand plaintifl s accident (see Ciizzi v City uf New York. s i p CI, Levy v I(lrng Sit Hilie, S4 tZD3d 73 I. S63 N Y S M 498 [2d Dept 20081; Kizzo vS/ter,uin-Wi/lirinzs Co.. 49 AD3d 847. 854 NYS2d 3 16 13ci I k p t 2OOS J ) Eric S~vanh, tcstifying on behalf of Rae Corp., stated that lie is the president aiid chief cyccutive ol iicc~of the company. and that the compaiij is in the business of building commercial airc o nd It 1on I 11 nd re l r1gcrat i on eq u i pmen t S w an k test 1ii ed that M ul t i p 1ev Systems designed a re fri ger at i o 11 g s j stcm to cool * Budweiser trucks He testified that, 111 approviniately 1999, Multiplev Systeins contracted it11 I i x Corp to manufacture a processed chiller that operated using glycol and a unit cooler, which would be plcicecl ciirectly into a Hudweiser truck, for its refrigeration system design I Ie testified that the process chiller and unit coolers were sold to Multiplex Sqsteiiis 111 2001. He testified that Rae Corp. also sold to Multiplex S J \tern a thermostat aiid an expansion tank for use iii its refrigeration system, but those coiiiponcnts \\ere not manufactured by Rae Corp. Swank testified that he has iiever been to Clare Rose s Ihcil~ty. that ILie Corp. did not provide any instructions on how to asseiiible the refrigeration system aiid tli lt he ha5 ne! ei scen the facility s refrigeration system. although lie believes that soiiieoiie from Rae Corp. IIJS iecn thc completely ~iistallediysteiii I-Ie testified that Rae Corp did not supply Multiplex Systems \\ it11 JJ I lioscc. hose coiiiiections or piping Ibr use 111 its refrigeration system, aiid that he has never heard or I lie1 m-11-7 SmmL Iiirther testified that he IS iiiiawcire o f Rae Corp. having received m y complaints 101 .ihout tlic coinpoiiciit p i r t s t h a t i t supplied t o M~iltiple\System I n opposition to Rae Corp s priiiia f x i c ~ h o w ~ i pg c.i i n l i f I Iciiled to raise a triable issue of Ihct IS to whethcr any of the component parts l inm11Ixtul ed b! R x ( orp were del ective o r negligently in5talled, and were a substaiitial factor iii causing l i i i i n i u i b ( \ C C J R a h o n - I ~ i / / i n ~ cI c ~ r Robert Mortclrrvi Gorp.. 73 AI>?d 1007, 905 NYS2cl 1007 [2d Dept 201 0 .Fiituxo ii l i t t . I j o i t d u Motor Co. 1 AD?d 7 15 766 NYS2cl 575 [2cI Dept 200;)) 1

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