Perrin v Key Eng'g Solutions, LLC
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Perrin v Key Eng'g Solutions, LLC 2019 NY Slip Op 33308(U) October 31, 2019 Supreme Court, Kings County Docket Number: 502809/12 Judge: Lawrence S. Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 At an IAS the State N P R E S E of NewYork, at the Kings, New Part Term, eld Courthouse, 313t on the York, of the Supreme for in and at Civic the Center, of County of Brooklyn, 2019. of October, day Court ~~ T: ø z LAWRENCE HON. -< . KNIPEL, Justice. - - - - - - - - - - - --------------- PERRIN MORRIS AND ---- SHERRONDA _1 - - - - -X PERRIN, a Plaintiffs, - against - KEY ENGINEERING PGM NIPPON No. Index SOLUTIONs, LLC, INC. (IJ.S.A.), AMERICA, 502809/12 AND The following - - - - - - - -papers e-filed read CT' - - -X of Motion/Order Petition/Cross Affidavits Motion Affidavits Affidavits Plaintiffs' the Engineering) 3212, Plaintiffs move, summary judgment in action this (Sherronda)(collectively, under motion motion Engineering Morris plaintiffs sequence defendant Key number seven, plaintiffs' judgment sequence Key by plaintiffs), under it summary against 128 92 papers, granting 1 16 120-126 19 Law moves, 93-113. 88-91, 127 of foregoing LLC CPLR 1 18-1 (Affirmations) Perrin to 73-87 (Affirmations) Sherronda (Key . Annexed Memorandum Upon Numbered Cause/ and (Affirmations) Opposing Reply to Show -Î O herein: Papers Notice 30 7 Defendants. - - - - - - - ---------------- on eight, the 1 of 21 issue for of an for order liability. Solutions, an order, granting and (plaintiff) Engineering complaint dismissing number Perrin pursuant as against them partial it. [*FILED: 2] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 and Facts Key is Engineering precious metals from member of Engineering. as Key shears, the and metals inside for in precious Engineering When Bruno America, Inc. business. Since built, Bruno with them. the by requested that business at Key cutting machines cutting machines 'The reduce required on most sell of U.S. them as metals harmful Key compounds are known also obtain to Bruno by sole and converters built were need any for storage in as for . Key of cutting until he Catalytic machines agreed to do so, been. that and and and 2 . 2 of 21 for had exhaust. to are built Engineering also Engineering one Bruno out what of its cutting in catalytic Catalytic its had to he Nippon, According Key that do was was which Corporation, Bruno rhodium in car vehicles. figure manager Key Multimetco, machines could down wound and Converter had cutting contained the PGM Nippon company, operating general the palladium, another ceased Corporation. called platinum, at Engineering Converter gasoline-powered position an owner Bruno a company machines cutting working the Shalit Catalytic to keep (Shalit), Engineering. to be was catalytic the recovering president which machines, open Engineering longer to cut is the (Bruno) cutting of business. Key no business Bruno precious emissions would to manager (Nippon), Shalit of line These a general Bruno Steve them. order business the in Bruno used Engineering's planned While same Key (U.S.A.) there in engaged John Engineering guillotines, took initially approached in use was converters.1 Key of Background that company catalytic used decanners, a Procedural Shalit. Bruno, for use sold four of its two of its sold in machines converters converters his to to are a [*FILED: 3] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 ELVCR. called company salvage essentially ofthe to was the during machine retrieve the around holding one the pipe sustain which Engineering with his to blade of known Plaintiff left and it hit shot the out to cut were sold storage. October 6, converter Converter 2011, one using Corporation. catalytic open in kept On were The in order converters them. machine. hand were a catalytic cutting to Catalytic sold inside and that Corporation. was driven blade the used being converter, cutting attached September On complaint, open Key machines cutting Converter employment, from these as the catalytic and the held pulled rabbit because catalytic lever, in plaintiff had it converter the face, causing by blade, converter catalytic the pipes in place activated which the converter, struck ears and him to injuries. Nippon. cut the When was Catalytic catalytic the of otherwise his metals pipes hand. not a hydraulically into the of right On alleges which precious it, of course placed curved his by utilized Plaintiff with employed machines cutting cutting were all that asserts they since Plaintiff plaintiff, Bruno January adding that Key catalytic 2The 14, court 2, Key 2012, 2013, was converters shall as refer to to in the recover plaintiffs' his wife, filed plaintiffs Engineering Engineering and plaintiff, a Plaintiffs' of and collect amended complaint 3 3 of 21 cutting metals. as plaintiffs' action and as complaint, manufacturing platinum this summons supplerñêñtal a defendant. business filed Sherronda, machines Plaintiffs' complaint. against amended amended,2 used complaint to [*FILED: 4] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 further RECEIVED NYSCEF: 11/06/2019 alleges machines that for and machine a first third cause to provide of cause consortium Key action of action for on behalf of including August 17, On 16, 2018. for summary the and.distributing plaintiff contained Plaintiffs cutting of and a latent action for a fourth that assert Plaintiffs' product. cause liability, time an answer plaintiff's 30, January to 2018, Nippon were a motion file 16,.2018, dated deposition Key August and plaintiffs design the cutting complaint breach cause discontinued, for 7, of of summary and 2013. Bruno's taking filed Engineering alleges a warranties, action for of loss their of was filed On issue. extended their to instant been behalf 11, July By an order withprejudice. plaintiffs on deposition, note judgment has Discovery dated October motions judgment. Strict "Where Clawson selling defect. Discussion . normal of by defective a second products against October of this and negligence, strict used warnings interposed claims 2018, business Sherronda. On plaintiffs' 2018, the machine cutting dangerous taking -Engineering. Key the adequate for Engineering conipleted, of that an unreasonably was in use. claim failed was Engineering commercial Plaintiffs defect Key course Co., a defective of 92 business, NY2d product the 387, burden 392 Products is sold of . Liability by a seller, strict liability [1998]). "Similarly, - 4 4 of 21 dealer has the or been distributor imposed" manufacturer engaged (Gebo of in its v Black a defective [*FILED: 5] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 product RECEIVED NYSCEF: 11/06/2019 caused Jaramillo Co., 59 NY2d regardl'ess 106 102, of considerations also are that to turn of business, in a position to litigation" engaged Thus, strict Atomic products the but for O' 337 330, Son sellers Mfg. [1986]; manufacturers as a considerable 69 NY2d lian, largely 94-95 the as well opportunity, "rests 89, as to (Sukj Decker [1973]). NY2d 69 products'" safe 4 see (id.; P and Co., injuries care" due v Black considerations policy practical the business of Court liability the of I»» the Appeals lack in at 95, quoting 950, 951 on liability in held [1993], 189; rearg 5 5 of 21 and case a casual NY2d 81 NY2d often increased seller at 393; 1068 in which "have sellers in the is not who a party business" that 92 its and of most indemnification manufacturers the course recover however, of denied are can or part Gebo, normal manufacturers, considerations, as a regular at in contribution policy expressly product products applicability issue has of through strict 12 NY3d (Jaratnillo, 81 NY2d or of obviously the with safety These imposition sell relationships i»g improved at 95). product which sellers, dealings, NY2d 69 the cn»i of pressure sale Horseshoes, ha[ve] to commercial of the As reason "by to justify the These NY2d manufacturers v Ross 188), attractive, 341). (Sukj lian, in on of exercise Voss for liable strictly their' at their course at held [2009]; 32 liability (Sukjlian 'alone useful, exert advanced normal out they, within costs often NY2d 32 Codling, NY3d 12 "most they policy" 188 181, v Paglia, products be or the foreseeability Codling strict also may 12 NY3d Co., public Jaramillo, incentive, been of business of privity, [1983]; imposition of course v 0'eyerhaeuser The see normal its a product, by also on in engaged (id.). is not Stiles [1993]; subject v Batavia Sukj lian, to [*FILED: 6] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 69 NY2d at 96). on be imposed of those in the forced 95; see has or the also Court subject to explained the in a casual machine of its nor products, of public is there goods" such assumed safety the not or occasional casual "[t]he for should liability element corollary NY2d 69 (Sukljian, by at (see who builds mere act "does for summary not a product for its own design and assembly more make not of it equivalent to sell a product as it for offering be Appeals of and use, standard and cannot Court same product without The the to of this manufacturing business, at 393). "held be manufacturer a casual NY2d 92 Gebo, cannot that held a product, sale to as part a product (id.). support of it manufactured fine not of since responsibility purchasers a defendant's business policy, specifically another, Thus, course also manufacturer, to of public products strict 187). liability a casual its manufacturer obtaining has that those by at explained special supplying products the the undertaking Appeals (id.). normal In regularly product being as a matter 12 NY3d of has undertake that strict manufacturer" it was of that transfer the not does on Appeals of seller, Jaramillo, manufacturer' of casual reliance without Court business The held The a product seller of RECEIVED NYSCEF: 11/06/2019 motion and the from a manufacturer at issue machine cutting metals when seller casual used of cutting Bruno judgment, of the catalytic own converters. machines took its a for general 6 6 of 21 use Key sale to the manager argues Engineering machine. cutting for solely Key Key in of position, and its further Engineering public asserts Engineering furtherance only at it is only that sold Nippon that of business asserts the that cutting and Key . [*FILED: 7] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 ceased Engineering machines were not offer sale, for sale catalytic converters. or repair such built Key by metal machine. or otherwise built Bruno contact scrap ELVCR. catalytic Bruno cutting blades of as part also enter into the or for that other for upon his that at no for advertise attests sale, at no time own did Key at the time, using what spare parts he that none of the Engineering that on hand maintain, cutting machines at the a unique was from ordered machines cutting open service, the either for cutting machine cutting had cutting market for machines parts the Engineering states each and that commerce. Key cutting need forth of did Bruno use, explains stream time businesses. its and/or sets them attests were that in that his were converters, cutting machines of Engineering time were various that he built to built order sale. sets and Multimetco, Bruno Bruno companies inventory public, based explains with the machines for Key to companies cutting a business. affidavit, Engineering fabrication four to cutting the the sworn assembled machine, from manufactured in his Bruno, as operating one these forth also while machines cutting sales. as the involved that Catalytic machine Bruno general in the Catalytic including that to position Key built Converter to business Converter was Engineering he had manager and used no of explains that 7 7 of 21 and that precious Corporation, Multimetco longer at Key the used also cutting cutting included machines into metals he operating, Engineering, two he came ofrecovering Corporation, ELVCR, he Nippon, and sold off specifically, machines spare that parts were to and sold [*FILED: 8] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 were not RECEIVED NYSCEF: 11/06/2019 salvage essentially the using Bruno doing at deposition tr entitlement issue at to of fact In catalytic that Bruno cutting then for the with Key time sold this business and build 320, and was held plaintiff Engineering not the 2018 18, of showing a genuine a casual out seller its triable or a casual as an expert machines for to the in the of processing of Converter which website, as a vehicle field processing Catalytic to Bruno's Solutions] for raise not [1986]). machines points was April facie to itself cutting cutting machinery 324 testimony. and (Bruno's a prima was Engineering multiple [Key NY2d building contention, made deposition "mothballs" in to plaintiffs Engineering and his machines cutting burden 68 Key was has the that that is rejected. was in the manufactured for consistent this during to do catalytic states design and converters analysis." argument machines operating Engineering Hosp., argue engineer and Engineering . manufactured his work, sampling not Engineering engineering, and "started sold shifting contend As support This Key plaintiffs converters he v Prospect developing, development and Alvarez Key Key judgment, summary are that when Thus, Plaintiffs Corporation. affidavit deposition, 41-42). opposition, designing, was Engineering his anymore (see manufacturer. of his business any in statements testified, Key machines. cutting Bruno's since sale in the This business by stream statement of it, of on Bruno's manufacturing or that it regularly commerce. Rather, 8 8 of 21 website cutting offered this does not machines the and only that the selling machines cutting statement indicate relates that to Key it [*FILED: 9] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 use Engineering's that the sales only Engineering's of cutting in the manufacturing upon wanted the the down of (Bruno's Converter Corporation three 18, liked more Key Key from Converter at Key after Engineering also built, were they that out that the purchasing in specifically so much machines cutting business. and because point Key expertise designed Plaintiffs 70). its Corporation manufactured tr of shown during as having out Bruno, member, occurred course itself has Engineering and regular its held Engineering Engineering's Key in Catalytic that Key incidental, not sole its deposition 2018 machines it were business. Engineering testimony April machines by and which that own business its machines machines its in made that contending deposition cutting purchasing machines cutting Bruno's machines cutting winding Plaintiffs, rely of better Catalytic it wounil one first up (id. at 73). deposition Bruno's wanted Corporation that Bruno had with familiar prior Services to of issue testimony to buy simply its to purchase designed Specialized the cutting testimony, the cutting the machines, machines that Key shows that Catalytic had at 69). Such a casual Converter it heard 9 . built . 9 of 21 it knew because Converter Corporation for another Bruno's sought down company, testimony manufacturer. winding Converter Catalytic Engineering deposition Corporation it was that Key Catalytic Bruno was Engineering when machines (id. (A-1) from and that specified actually machines cutting cutting Supplies and whether however, out its Key operations. is irrelevant deposition Engineering was A-1 [*FILED: 10] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 Bruno and machines testified used machines Key Engineering that Key in two separate April In an that Key providing systems and the was (Bruno's 2019 18, effort show to that services equipment for with consulting Waste 2018 on A-1 from Management, deposition testimony further were own delivered by also testified and ELVCR the cutting machines cutting this at does through at a time consultmg 2002, before at 28). 10 10 of 21 fact 13-14). not that Key or sampling machines, even However, show that Engineering Key if³ Engineering machines. cutting these the plaintiffs manufacturer, or building ( id. A-1, selling 1992 to "developing, to it provided that Bruno purchased a casual not point and catalysts" or manufacturing denies 2002, services consulting of in their not to Multimetco their a separate Bruno and companies cutting Corporation 124). 58, building was Engineering to A-1 73-74). at old in Converter machines and own its Engineering Corporation, these apart of one 84-86). at formed consulting 18, tr Catalytic cutting of rid (id. 2009 tr at 47-48, both them Key was process that its got Key Converter deposition of ripping Engineering Industrial April 1, 2018 deposition in by Catalytic by and of mönths purchased remainder the purpose Engineering personally he owned, June transactions, the of machines up from purchased Corporation it, using machines cutting a couple picked sold business 3Key of cutting were provided Engineering in the Engineering (Bruno's was a period (Bruno's for was of and machines note over all that more three after and Engineering, Converter Catalytic that deposition, Key bought all transaction, , from machine cutting at his testified, Key services. as a member Engineering It claims of another was that Bruno company incorporated Key [*FILED: 11] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 further Plaintiffs was Engineering Key formed, improvements these the public. to the to Bruno's Bruno, had Engineering, that point basic machines cutting in involved were for while the of (id. at 63-65). companies' these in the employed design machines cutting that testimony and individually, been same deposition before Key other than companies by "maybe own 20 years . thirty" variations it is undisputed However, internal or use and not for sale that were to . Plaintiffs to plaintiff's Key June sold an testimony been used or were manufactured was just note each, by to Key the and four that each machines the three (Bruno's April 18, (id. to machines that the 2018 by converter machines cutting While machines Bruno's had that testified all actually of them at 56). Catalytic sold these sold developed a catalytic cutting unequivocally use sold open and Corporation. of some own Engineering's Isey cut contend Converter Bruno designed to Engineering Catalytic machines cutting were Plaintiffs used,4 be the Corporation, as to whether to of some tr at 52-55). planning $30,000 approximately utilized equivocal that that Converter condition for $25,000 testified deposition unused were Plaintiffs for never 1, 2018 in Bruno Catalytic but Engineering, deposition sold that employer, (Bruno's were assert to the Converter other deposition Corporation companies tr at 83-85, were were 88). sold for However, __ 4Bruno and testing deposition be used, sold testified not being tr at 44). and to Catalytic some that used Bruno were Converter the four to cut further running catalytic testified (id. Corporation converters that at 52-54). were were machines cutting open some cutting Bruno also used by 11 11 of 21 Key on a limited operating in 2003 (Bruno's machines testified Engineering June were that all (id. 1, 2018 built four for basis and planned machines cutting at 47-48, 58). to [*FILED: 12] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 that it is undisputed when Key job at for the first plaintiff's time since the for working machines that during the and this is why.the Plaintiffs Key at Enginccring 14). some cutting Bruno questions machine Plaintiffs casual manufacturer 2005 machines that Corporation that sent explained (id.). Bruno argue that because 2010, brought Key it did sold was (id. that Catalytic it to its should of at its additions 12 12 of 21 another 0.f him if it Engineering, equipment intended that while to to "rip he was stopped, Engineering Key efforts on Nippon, had at be Bruno However, and machine, cutting June helped Engineering facility. the Converter not that 46). it (Bruno's (id. asked excess his and Shalit Key that concentrating installed facility its Key Corporation that make of that deposition, employee help and 2009 then for took employer, companies doing machine cutting to to at 42, an Converter Engineering not he over Catalytic sales the at his been Corporation guys testified and had testified some that at Nipon to Converter in testified, he the only use, Bruno, in It was sales remaining that install Catalytic merely the job own its plaintiff's new at his for shareholder, until engaged 2002, were Bruno sole idle Bruno Bruno work its left machines cutting machines. parts. from cutting Converter testified period assert and for whatever Nippon, and in at its request, cutting into cutting inception its employer apart" actually Engineering's Key were ran Corporation, the because operating machines cutting Converter purchase Catalytic stopped the Nippon, designed Engineering Enginecting Catalytic could Key 1, 2018 an deposition but electrician, picked Corporation that up tr had the 15). considered to a cutting machine a casual that seller it previously or a [*FILED: 13] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 purchased RECEIVED NYSCEF: 11/06/2019 someone from on Plaintiffrelies and that seven different of seller 3d that Key converters, from business day-to-day needed the machines time them. the when While (Sukljian, formed and to NY2d that sale on 96; all took ceased of the also an *4 own different machines, cutting to transactions deposition three purpose in metals in In its to same 2004]). buying scrap recaptured Key Engineering since the it did Bruno Engineering's Key business 18 catalytic [were] fact, or and defendant[] County retrieve year or v Checchin, that machines, the the tr at 46). of order cutting manufacturer of of machines. cutting casual Clinton purpose 2018 the a (McCarthy Ct, the very is issue]" precious the cutting precious so shortly for its metals own use, at thereafter, a business. doing defective allegedly of Goldman at refined place principles its business [Sup converters designed had see the four day-to-day "for the built entity product 18, of catalytic occurred business, at April carry the [the the selling the distribution regular 69 was Engineering Engineering "[W]here defendant's cut to Key sales Key 51918[U], machines used seven Op not was cutting were Slip in an the or and occurrence. a one-time a year. whether sold machines cutting sold at least consider (Bruno's refining ofits designed made them, process" the of must Engineering processing sale were decides [c]ourt NY its Engineering course factor 2004 was machines the previously 1134{A], testified Key cutting one the had that over no [it] Misc and these . . . certainly whether nor fact companies "While from the else, strict products v Packaging 13 13 of 21 product is liability Indus., 144 incidental have AD2d to no [the] relevance" 533, 536 [2d . [*FILED: 14] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 Dept RECEIVED NYSCEF: 11/06/2019 1988]). Engiñêêriñg's regular business. the 99 NY2d as a "regular regular do course 474 468, of facts to cutting machines for product safety, were that support an the or was is no did that it did, basis not Key at by the in public public 951). m special as having for policy for MTR v of the imposition no sale in basis the of disposing to the public NY2d 69 Sukljian, of that machin.es incidentally so (see of Ravensburg, cutting is Key market responsibility done the down built There Engmeenng, any not in sales to winding Sprung engage undertook the were (compare incidental only with machines NY2d 81 were connection business inference maññcr in cutting (Stiles, perceived there the Engineering business" its made Engineering's Key machines cutting strict on liability Engineering. the Thus, Stiles, 81 NY3d AD3d 519, 2005], lv plaintiffs' court which manufacturer, granted the and Key in Therefore, of dispute [2003]). the Key not of part undisputed sale business Plaintiffs in .at 97). the Here, finds that cannot be subject at 95 1; Sukljian, 520 [1st Dept 2019] denied 6 NY3d 709 third (see cause CPLR of 3212 Key action 69 to strict NY2d products for strict (see liability v Checchin, Consequently, products a casual only at 96 ; Hauerstock ; McCarthy [2006]). was Engineering liability v Barclay 24 AD3d Gebo, St. and a casual 92.NY2d at 393 Realty 1080, 1082 judgment summary against seller Key Engineering 168 LLC, [3d ; Dept dismissing must be [b]). . 14 14 of 21 . [*FILED: 15] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 Negligence With respect a duty "only to to 'warn the obvious or readily 97). Since "the casual duties are greater also Court to the "to or "subject to the NY2d the same were scrap to converters was plaintiff whether held that person to of the 92 NY2d NY2d Court is supplied at 393, regular negligence "the of of Appeals known defects network that are NY2d 69 for at product,' that 69 NY2d Sukljian, quoting imposes Sukljian, quoting commercial at 393, whom the a casual 92 on imposed a casual like manufacturer, product as a casual duty be may of duty (Gebo, limited product 92 the sellers, at 97 ; see is supplied NY2d at seller" of 393). 69 (Sukljian, a casual known NY2d is also seller, defects a casual Thus, the manufacturer, that are not manufacturer at 97 ; see also is Gebo, at 393). in his sworn converters, since injured by was they the injured were cutting engaged that in the the that these corspanies to cut open and already using the machine, because he put similar machines. cutting machine 15 15 of 21 that aware fully the precious Bruno had catalytic Key Engineering precious ofrecovering were retrieve a noncompatible machines cutting business and machines cutting attests affidavit, to companies sold only catalytic using part casual 520). readily Bruno, sold at discernible" obvious 92 has warn not (Gebo, of the (Gebo, 'is AD3d on whom to imposed" issue of Appeals solely seller 168 Hauerstock, As person discernible"' not no negligence imposing of the metals asserts operated that metals risks attendant from catalytic when plaintiff as intended, converter from into and the that cutting [*FILED: 16] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 machine. RECEIVED NYSCEF: 11/06/2019 Bruno with the large the "broken states Bruno (Plaintiff's Converter reminded Shalit on machine 1, 2018 deposition with Since to duty known warn discerñible for 283 device. was catalytic guard the of NY2d design assert between convertor seller Dept a known the the blade in place with obvious risk, 69 NY2d at 97; his plaintiffs by the user's or her left Frisbee, could hands, hand. . 16 of 21 at 1082; that' and because he June Shalit was had apparent, or Frisbee user plaintiffs' of readily liable held already at a v Cathedral be was safely the cutting machine, a guard operated to and cutting AD2d of be of it only cannot 283 not owner (Bruno's and plaintiff absence According 16 . obvious, which them the Engineering of is the machine of AD3d Key or cutting and Thus, it from the manufacturer, purchaser not an using agreed, a casual 24 for made Shalit were McCarthy, defect alleged that which got converters, before pipes really and involved he was above, catalytic long not as the 2001]). Sukljian, defect that a casual at 393; [3d at 393; testified as noted the was that deposition, with trim to further inachine, NY2d 807 and risk the at 57). (who, familiar Corporation, cutting 92 806, warn the was Converter Gebo, Plaintiffs no (id.). Bruno Engineering AD2d 92 Here, this in to Gebo, at 43). Shalit machine cutting tr of aware was at his deposition very pipes long plaintiff testified, that was the tr Catalytic (see a failure (see Key defects Corp., because them familiar very the avoid 2015 deposition, Corporation) to plaintiff 10, July that question since at his testified, Catalytic is no converter catalytic bin" there that aware 807). or similar safety because had to expert, there hold the Harold [*FILED: 17] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 Ehrlich RECEIVED NYSCEF: 11/06/2019 (Mr. failure to blade protect met the from point alert people This plaintiff. was alleged that explained well that the (see were the kickback," accident and, use on of also the cut AD2d he the (Plaintiff's when testified, at barrier the on it kicked back, sets guard that posed the by forth the that the operators no as a face and obvious, was the where to protect there such was area cutting affidavit, forth sets to warning shield. discernible readily by machine cutting when at 807). had taken the bin," "broken July machine cutting no injuries plaintiff's the expert his danger that from from known, specific 283 of equipment, was Frisbee, day, that it had deposition, to of the because protective happened harder in however, aware at his Ehrlich, Ehrlich personal cause thachine, cutting design defect, testified, when cutting converters "a design converters Plaintiff was for the Mr. the engineer, Mr. in need was catalytic cutting of hazards. the Plaintiff user defective operation as to industrial convertor. catalytic of is an as the him, machine cutting who Ehrlich), which 2015 10, catalytic contained deposition converter catalytic it shot converter back tr was hard the at 57). subject and hit that he catalytic Plaintiff to having him (id. at 60- 62). Plaintiff shooting" was not with an further back issue something catalytic (Plaintiff's with new the (id. converters Feb. catalytic at 57). shooting 2, his deposition, 2016 converters Plaintiff out deposition tr shooting out also of that the testified cutting 17 17 of 21 catalytic at of that 55). the there machine converters Plaintiff explained machine, cutting had (id. were been at previous 58-59). "always that and this there was accidents [*FILED: 18] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 11/06/2019 Plaintiff machine but different of at 61). (id. converter, (id. machine several by bought the both and did not kickback the have a problem could happen converter catalytic for the and of Neil, about knew at 62-63). but it, Plaintiff Corporation (id. his with with because itself cutting catalytic any one each catalytic the owners since no that Plaintiff at 64). converters the testified operators machiñê cutting issue the Sl?alit they (id. Converter masks that discussed he with times, Catalytic face that measures safety explained on he time, had a at 64). cutting any a year's depended also testified talie for Plaintiff Plaintiff the to him it casting Corporation, not that testified after one no of Catalytic had gotten that did hurt, they was provided or Neil Shalit accident his Converter protection stated out shooting occurred (id. first at 57- 58). plaintiff's Thus, posed the by him danger CPLR 32 12 of and that a kickback the absence was obvious first dismissing specify Corporation, any to of a guard and cause of or other of aware safety for the device discernible. readily action he was dangers to protect Consequently, negligence must be granted [b]). Breach As that demonstrates testimony plaintiffs' judgment summary (see machine cutting the from deposition plaintiffs' express when second warranties it purchased cause of of fitness the of Warranties action given cutting for to breach plaintiff's machine. of insofar 18 . . 18 of 21 as do not Converter Catalytic employer, Therefore, plaintiffs warranties, this cause of [*FILED: 19] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 action RECEIVED NYSCEF: 11/06/2019 such dismissing With Key to purports claim respect this intended of the to operate. implied "[u]nless in kind." 314, a respect be or at least 'merchant' Venture, 97-Civ-7710 (2) sets (c) . . fit within for the breach of WL (LLS)], the meaning apply." implied 595533, Cology Key the forth full it for scope has of been such which of LEXIS Mfg. Co., section that 19 19 of 21 12111, 206 be a casual (see Rogers *8-9 [SD AD2d 864, it was breach for that merchantable to goods is sale thus, seller UCC of goods no warranty cannot 2- is not of be held HSN Direct NY Aug. 6, 1999,No. 864 [4th Dept y . "they used." are that of merchantable, goods and, contact provides (1) be an isolated this held to catalytic merchantability. respect with of which in 2-314 shall goods "[g]oods merchantability US Dist v Pitman the for made of UCC a merchant order blade is liable warranty personmaking "[a] the Thus, 1999 in is purposes that of seller that ordinary implied that the manner that warranty since Engineering of merchantability, the if warranty *3, therefore, the the in implied that when face operate of the and assert in the . . . , a warranty sale fitness argue plaintiffs warranties, not brçach warranty provides the would 1999 their 3, however, merchantability for implied him did that, and fitness ofirnplied çf judgment summary [b]). plaintiffs struck contend modified for 2-314 Comment liable to the a contract UCC "must of breach machine warranties, 3212 argument, and cutting Plaintiffs excluded implied him express warranty this of the warranty With implied the towards that means for of CPLR (see claims support back breach for granted plaintiffs' In kicked it, be breached merchantability. with must to Engineering converter claim a assert Joint 1994]; [*FILED: 20] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 231-232 230, for breach of Queens Ct, Key 51918[U], Op Slip [Civ since Therefore, claim NY 2004 McCarthy, 2d RECEIVED NYSCEF: 11/06/2019 implied 120 affd seller is a casual v Benay-Agree Millinery 1982], County Engine~I-iIig the Kates *4; 429 judgment summary of merchaniability warranty 2d Misc 1983]). plaintiffs dismissing CPLR (see be granted must Teim [App Misc 114 Corp., 3212 [b]) With respect as provides the to the any particular the buyer under the be for Comment where seller to-nonmerchants 2-315 this Significantly, "[t]he existence Slip Op Catalytic and [3d skill Dept 51918[U], Converter of 1997], a of lv an implied goods this 2-315 excluded justify Millinery, Corporation relied 90 NY2d 114 on & Key 979 Bath 2d at 20 of 21 this seller, is part upon v Beeche see [1997]; Engineering's 20 it can 232). Sys. also There skill the Corp., a no or judgment as are no Key merchant. comparative 230 AD2d 2004 McCarthy, is arise to warranty not arise there Here, of in will warranty judgment," or casual depends Misc the application and Spa shall circumstances." the warranty... or modified goods the "skill particular the or that select normally appropriate the and to that know to required unless "[a]lthough (Saratoga dismissed are or judgment warranty that by Fates *5; is reason has skill manufacturer parties" the the seller's would casual as 331 purpose„UCC a particular contracting there is justified who, knowledge the with which circumstances of provides is a merchant Engineering, 326, for fitness which for on section purpose," next such where time goods, UCC 4 to the purpose suitable fit at the seller is relying furnish particular of warranty follows: "Where only implied showing to select NY that or [*FILED: 21] KINGS COUNTY CLERK 11/06/2019 09:24 AM INDEX NO. 502809/2012 NYSCEF DOC. NO. 129 furnish was RECEIVED NYSCEF: 11/06/2019 goods. suitable in cutting experienced it if Engineering it has Rather, dismissing particular purpose claim be granted must plaintiffs' for (see cause second dismissing its replacing that Catalytic own qutting Engineering's Key plaintiffs' judgment established was machines, purchase could been the implied 32 12 [b]). CPLR of of action for and Thus, of warranty Consequently, breach Corporation machines, machines. cutting breach Converter of in Key summary for fitness a judgment summary warranties asked its entirety is warranted. Loss Since the fourth cause is derivative of plaintiff's is granted, and judgment summary of of Consortium all dismissing action for of loss must claims, pl aintiff's of claims against which is asserted consortium, be also dismissed CPLR (see Key Engineering by 32 I2 Sherronda [b]). Conclusion Accordingly, complaint summary as againt judgment This constitutes Engineering's Key it on is motion granted. In the issue of the decision, for view of this is denied liability and order, 9- judgment ADR6 of the partial H0 c m TER, s. . . WRENCE NANCYT 21 of 21 for court. Administrative 0371.:1 motion as academic. . WT dismissing plaintiffs' ruling, EN a1:6 plaintiffs' judgment summary KNIPEL Judge SUNSHINE Clerk
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