Bienaime v. Reyer

• Decision Date: 05 June 2007
• Docket Number: 2006-03090.
• Citation: 41 A.D.3d 400,2007 NY Slip Op 04765,837 N.Y.S.2d 737
• Parties: JEAN PATRICK BIENAIME et al., Respondents-Appellants, v. GARY REYER, Doing Business as ALL ELECTRIC, Defendant and Third-Party Plaintiff-Respondent-Appellant. QUALITY CARTON, INC., Third-Party Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 400

837 N.Y.S.2d 737

2007 NY Slip Op 04765

JEAN PATRICK BIENAIME et al., Respondents-Appellants, v. GARY REYER, Doing Business as ALL ELECTRIC, Defendant and Third-Party Plaintiff-Respondent-Appellant.

QUALITY CARTON, INC., Third-Party Defendant-Appellant-Respondent.

2006-03090.

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

Decided June 5, 2007.

In an action, inter alia, to recover damages for personal injuries, etc., the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County (Lubell, J.), dated March 1, 2006, as denied its cross motion for summary judgment dismissing the complaint and the third-party complaint, the defendant third-party plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal from stated portions of the same order. [See 11 Misc 3d 1060(A), 2006 NY Slip Op 50326(U) (2006).]

Ordered that the order is affirmed insofar as appealed from and cross-appealed from by the defendant third-party plaintiff, with one bill of costs payable to the plaintiffs; and it is further,

Ordered that the cross appeal by the plaintiffs is dismissed.

The plaintiff Jean Patrick Bienaime (hereinafter the plaintiff) sustained personal injuries while cleaning a press machine owned and operated by his employer, the third-party defendant, Quality Carton, Inc. (hereinafter Quality). The machine consisted of, among other things, print rollers upon which ink would collect during the carton fabrication and printing process. Several times throughout the day, these internal ink rollers needed to be cleaned. It is uncontroverted that the machine was equipped with a washing system meant to clean the rollers when the machine was in a closed position. However, the wash system was not functioning at the time of the accident. The system could have been cleaned by shutting it down, placing the machine in the open position, and washing the internal rollers of the ink, but such a process would have been time-consuming and was not employed. Hence, it was the custom of Quality's employees to clean the press machine while it was in the open position and still operating.

The press machine was designed with a safety interlock, the function of which was to shut off power to the machine's main drive system when the various sections of the machine were separated. The interlock was designed with a limit switch, which was wired into the electrical circuitry of the machine. When the machine is disassembled, the limit switch is supposed to be tripped and prevent the internal rollers from operating. The limit switch was never operational while the press machine was in use at Quality.

Prior to the plaintiff's accident, Quality hired the defendant, Reyer, doing business as All Electric (hereinafter Reyer), to perform various electrical repairs on the press machine. Reyer was initially hired to complete the installation of the machine so that it would operate at running speed. Although Reyer admitted that he lacked the necessary wiring diagrams to enable him to safely repair the machine, he agreed to bring the machine to running speed without the diagrams.

On August 11, 1998 Reyer rerouted the electrical power from one of the machine's circuits and onto another circuit by putting a jumper cable from the "jog circuit," to the "run circuit," which caused the machine to run at a faster rate of speed. On October 9, 1998 he worked on the haul-off switches and replaced the brake on the registration motor. On December 7, 1998 Reyer assisted workers from General Electric when they replaced the main drive control, added a stop/start switch, and replaced the internal portion of the control panel along with the major controller. On June 16, 1999 Reyer performed additional electrical work on the press machine, which included rewiring controls...