Burns v. Haines Equipment Inc.

• Decision Date: 08 June 2001
• Docket Number: PLAINTIFF-APPELLAN,DEFENDANTS-RESPONDENTS,V
• Citation: 726 N.Y.S.2d 516,284 A.D.2d 922
• Parties: (A.D. 4 Dept. 2001) PEGGIE BURNS,HAINES EQUIPMENT, INC., AND LYNN SCHAFER, D/B/A HILL RANGE FARM, 00-02258
• Court: New York Supreme Court — Appellate Division

Page 516

726 N.Y.S.2d 516 (A.D. 4 Dept. 2001)

PEGGIE BURNS, PLAINTIFF-APPELLANT,

V.

HAINES EQUIPMENT, INC., AND LYNN SCHAFER, D/B/A HILL RANGE FARM, DEFENDANTS-RESPONDENTS.

00-02258

SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT

June 8, 2001

[Copyrighted Material Omitted]

Charles L. Davis, for plaintiff-appellant.

H. Ward Hamlin, Jr., for defendant-respondent Haines Equipment, Inc.

Gordon D. Tresch, for defendant-respondent Lynn Schafer, d/b/a Hill Rang Farm.

PRESENT: PINE, J. P., HAYES, HURLBUTT, SCUDDER AND LAWTON, JJ.

MEMORANDUM:

Plaintiff was injured when her right thumb was caught in an exposed moving chain of the loading machine that she was operating. The loading machine was manufactured by defendant Haines Equipment, Inc. (Haines), owned by defendant Lynn Schafer, d/b/a Hill Range Farm, and leased by third-party defendant Ronald Kern and Sons, plaintiff's employer.

Schafer moved for summary judgment dismissing the complaint against him. Plaintiff cross-moved to amend the complaint "to plead more specifically a cause of action based upon negligence" and for partial summary judgment on liability. Haines also cross-moved for summary judgment dismissing the complaint and cross claims against it. Supreme Court initially issued a memorandum decision granting Schafer's motion insofar as it sought dismissal of the claims based on strict products liability and denying that part of plaintiff's cross motion to amend the complaint as unnecessary and therefore moot. It also denied that part of plaintiff's cross motion seeking partial summary judgment on liability and denied Haines' cross motion. Before an order was entered on that decision, however, the court invited the parties to submit comments with respect to the decision. The court upon reconsideration issued a memorandum decision granting Schafer's motion and Haines' cross motion and denying plaintiff's cross motion. Plaintiff appeals from the order entered on that memorandum decision.

Contrary to the contention of plaintiff, the court had jurisdiction to amend its prior decision before an order was entered. "A court has the inherent power, sua sponte or on motion of a party, to reconsider and vacate its prior decision before issuing an order thereon" (Scritchfield v Perry, 245 A.D.2d 1054; see, Vinciguerra v Jameson, 153 A.D.2d 452, 454). Contrary to the further contention of plaintiff, the court properly denied that part of her cross motion seeking to amend the complaint. Plaintiff contends on appeal that she sought to plead more specifically a negligence cause of action based on improper maintenance of the loading machine that caused her injury. Despite her failure to allege that theory in her cross motion, "where she has alleged facts which may make out a viable cause of action, she may be permitted to amend, even on appeal, provided there is no prejudice to the defendant" (Stephan v Shulman, 130 A.D.2d 484, 485, citing Murray v City of New York, 43 N.Y.2d 400, rearg dismissed 45 N.Y.2d 966). Here, however, plaintiff failed to allege facts to support such a cause of action.

We conclude that the court properly granted Schafer's motion. The claims based on strict products liability were properly dismissed because, as a casual lessor, Schafer "cannot be held strictly liable for plaintiff's injury" (Piper v Kabar Mfg. Corp., 251 A.D.2d 1050; see, Nastasi v Hochman, 58 A.D.2d 564; cf., Opera v Hyva, Inc., 86 A.D.2d 373, 378-379, 450 N.Y.S.2d 615). In addition, the negligence claims were properly dismissed because, while a casual lessor may be held liable for ordinary negligence on a theory of failure to warn, "[a]t most, the duty of a casual or occasional seller [or lessor] would be to warn the person to whom the product is supplied of known defects that are not obvious or readily discernible" (Sukljian v Ross & Son Co., 69 N.Y.2d 89, 97; see, Piper v Kabar Mfg. Co., supra, at 1051). Here, the absence of the safety guard was an obvious and readily discernible defect (see, Hernandez v Biro Mfg. Co., 251 A.D.2d 375, 377, lv denied 92 N.Y.2d 819; Ruggiero v Braun & Sons, 141 A.D.2d 528, 529, lv denied 73 N.Y.2d 707).

We further conclude that the court properly granted Haines' cross motion. "Substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer" based on theories of strict products liability or negligence (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479; see, Amatulli v Delhi Constr. Corp., 77 N.Y.2d 525, 532-533; see also, Moore v Deere & Co., 195 A.D.2d 1044, 1044-1045, lv denied 82 N.Y.2d 663). Although a manufacturer may be liable if...