Altinma v. East 72ND Garage Corp.

• Decision Date: 30 September 2008
• Docket Number: No. 2007-00236,2007-00236
• Citation: 2008 NY Slip Op 7202,54 A.D.3d 978,865 N.Y.S.2d 109
• Parties: NADER ALTINMA, Respondent-Appellant, v. EAST 72ND GARAGE CORP., Respondent-Appellant, and ACE OVERHEAD GARAGE DOOR, INC., et al., Defendants and Third-Party Plaintiffs Appellants-Respondents. GLENWOOD MANAGEMENT CORP., Third-Party Defendant Appellant-Respondent. HUMPHREY MANLIFT CORP., Third-Party Defendant-Respondent, et al., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

54 A.D.3d 978

865 N.Y.S.2d 109

2008 NY Slip Op 7202

NADER ALTINMA, Respondent-Appellant, v. EAST 72ND GARAGE CORP., Respondent-Appellant, and ACE OVERHEAD GARAGE DOOR, INC., et al., Defendants and Third-Party Plaintiffs Appellants-Respondents GLENWOOD MANAGEMENT CORP., Third-Party Defendant Appellant-Respondent HUMPHREY MANLIFT CORP., Third-Party Defendant-Respondent, et al., Third-Party Defendant.

No. 2007-00236

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 30, 2008.

In an action to recover damages for wrongful death, etc., (1) the defendant and third-party plaintiff, Ace Overhead Garage Door, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Dorsa, J.), entered November 22, 2006, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, (2) the defendant and third-party plaintiff, Charles Calderone Associates, Inc., separately appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, (3) the third-party defendant, Glenwood Management Corp., separately appeals from the same order, (4) the plaintiff cross-appeals, as limited by her brief, from so much of the same order as granted that branch of the motion of the defendant East 72nd Garage Corp. which was for summary judgment dismissing the complaint insofar as asserted against it and granted the motion of the third-party defendant Humphrey Man-Lift Corp. for summary judgment dismissing the second third-party complaint, and (5) the defendant East 72nd Garage Corp. separately cross-appeals, as limited by its brief, from so much of the same order as denied that branch of its motion which was for summary judgment dismissing all cross claims for contribution and indemnification insofar as asserted against it.

Ordered that the separate appeal by Glenwood Management Corp. is dismissed as abandoned (see 22 NYCRR 670.8 [e]); and it is further,

Ordered that the order is reversed insofar as appealed from by Ace Overhead Garage Door, Inc., and Charles Calderone Associates, Inc., on the law, without costs or disbursements, the motion of Ace Overhead Garage Door, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted and the cross motion of Charles Calderone Associates, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted; and it is further,

Ordered that the order is affirmed insofar as cross-appealed from, without costs or disbursements.

On January 9, 2000, the plaintiff's decedent, Lafortune Altinma, sustained fatal injuries when he was allegedly pinned beneath a single-person vertical transportation device known as "man-lift" at the Somerset Garage in Manhattan. There were no witnesses to the accident.

The plaintiff commenced this action against the defendant East 72nd Garage Corp. (hereinafter East 72nd Garage), which held a license for the Somerset Garage, Ace Overhead Garage Door, Inc. (hereinafter Ace), which repaired the man-lift on an "as-needed" basis prior to the accident, and Charles Calderone Associates, Inc. (hereinafter Calderone), which performed annual inspections of the man-lift pursuant to Local Law No. 10 (1981) of City of New York. The plaintiff also commenced a separate action, under a separate index number, against Humphrey Man-Lift Corp. (hereinafter Humphrey), the manufacturer of the lift, sounding in, inter alia, strict products liability. Calderone commenced a third-party action against Glenwood Management Corp. (hereinafter Glenwood), the managing agent for the Somerset Garage. Glenwood commenced a second third-party action against Humphrey. Ace commenced a third third-party action against Glenwood and East 72nd Realty, LLC, which owned the premises and equipment at Somerset Garage.

The Supreme Court erred in denying Ace's motion for summary judgment dismissing the complaint insofar as asserted against it. Ace demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that it owed no duty of care to the decedent (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253, 256-257 [2007]; Church v Callanan Indus., 99 NY2d 104 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) as to whether Ace, in allegedly failing to exercise reasonable care in the performance of its duties, "launch[ed] a force or instrument of harm" (see Church v Callanan Indus., 99 NY2d at 111 [citations omitted]; Espinal v Melville Snow Contrs., 98 NY2d at 140). The Supreme Court's determination that, among other things, an issue of fact existed as to whether Ace negligently failed to warn the decedent's employers regarding man-lift or elevator inspection requirements, arising from certain statutory and industry standards, amounts to a finding that Ace merely may have failed to become ...