Putnick v. H.M.C. Associates

• Decision Date: 19 May 1988
• Citation: 137 A.D.2d 179,529 N.Y.S.2d 205
• Court: New York Supreme Court — Appellate Division
• Parties: , Prod.Liab.Rep. (CCH) P 11,805 Lawrence PUTNICK et al., Respondents-Appellants, v. H.M.C. ASSOCIATES et al., Defendants and Third-Party Plaintiffs-Respondents; and Chesebro-Whitman Manufacturing Company et al., Appellants-Respondents; Turner Telecommunications Systems Corporation, Third-Party Defendant-Appellant, and William Turner, Doing Business as Delmar Liquor & Wine Store, Third-Party Defendant-Respondent.

Page 205

529 N.Y.S.2d 205

137 A.D.2d 179, Prod.Liab.Rep. (CCH) P 11,805

Lawrence PUTNICK et al., Respondents-Appellants, v. H.M.C. ASSOCIATES et al., Defendants and Third-Party

Plaintiffs-Respondents;

and

Chesebro-Whitman Manufacturing Company et al., Appellants-Respondents;

Turner Telecommunications Systems Corporation, Third-Party

Defendant-Appellant,

and

William Turner, Doing Business as Delmar Liquor & Wine

Store, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division,

Third Department.

May 19, 1988.

Maynard, O'Connor & Smith (Brian R. LeCours and Roger J. Cusick, of counsel), Albany, for Chesebro-Whitman Mfg. Co., appellant-respondent.

Roemer & Featherstonhaugh (Claudia R. McKenna, of counsel), Albany, for Albany Ladder Co., appellant-respondent.

Stephen R. Spring, Albany, for Electronic Business Systems Corp., appellant-respondent.

Miles & Hamlin (Kris T. Jackstadt, of counsel), Albany, for Turner Telecommunications Systems Corp., third-party defendant-appellant.

Morris J. Bloomberg, Albany, for respondents-appellants.

William M. Weeger (Kathleen C. Sassani, of counsel), Syracuse, for defendants and third-party plaintiffs-respondents.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and MERCURE, JJ.

KANE, Justice.

Plaintiff Lawrence Putnick (hereinafter plaintiff) is an employee of a subcontractor, third-party defendant Turner Telecommunications Systems Corporation (hereinafter Turner Telecommunications), a party to a contract with defendant Electronic Business Systems Corporation (hereinafter Electronic Business), providing for the installation of a new telecommunications system at the site of the renovation of a branch of defendant and third-party plaintiff Key Bank, N.A. (hereinafter Key Bank). Key Bank leased the site from defendant and third-party plaintiff Delaware Plaza Associates (hereinafter Delaware Plaza), the owner, together with defendant and third-party plaintiff H.M.C. Associates, of the land and the buildings situated thereon.

On June 1, 1984, plaintiff sustained a fracture to his elbow when he fell from a standard six-foot wooden step ladder during the course of installing telephone cables within the ceiling of the premises being renovated. He contends that while standing on the third rung of the ladder and reaching overhead, the ladder gave way beneath him causing his fall and resulting injuries. An action was commenced by plaintiff and his wife against H.M.C. Associates, Delaware Plaza and Key Bank for personal injuries and derivative damages based upon theories of negligence and violations of the Labor Law. In turn, third-party actions were commenced against defendant Chesebro-Whitman Manufacturing Company (hereinafter Chesebro-Whitman), the manufacturer of the ladder, defendant Albany Ladder Company (hereinafter Albany Ladder), the seller of the ladder to Turner Telecommunications, defendant Bunkoff Construction Company (hereinafter Bunkoff), the general contractor, and Turner Telecommunications. The cause of action against Bunkoff was dismissed on motion and it is no longer a party to this action.

Plaintiffs then amended their complaint to, inter alia, assert direct claims against Chesebro-Whitman and Albany Ladder for negligence and strict products liability. They also commenced a separate action against Electronic Business asserting negligence and Labor Law violations, which was then consolidated with the instant action. After joinder of issue, Chesebro-Whitman and Albany Ladder each separately moved for summary judgment dismissing the claims against them. Plaintiffs, for their part, moved for summary judgment against H.M.C. Associates, Delaware Plaza, Key Bank and Electronic Business based on the cause of action alleging a violation of Labor Law § 240. Electronic Business cross-moved for summary judgment against Turner Telecommunications seeking indemnification, while Turner Telecommunications moved for summary judgment dismissing the claim for indemnification against it for violation of Labor Law § 240. Supreme Court denied all of the motions and these cross appeals ensued.

We turn first to the question of whether Supreme Court properly denied the motions by Chesebro-Whitman and Albany Ladder for summary judgment dismissing plaintiffs' claims against them for negligence and strict products liability. Plaintiffs' reliance on these theories is predicated on the alleged defective manufacture of the ladder, its defective design and the failure to provide adequate warnings. To support their motions for summary judgment, Chesebro-Whitman and Albany Ladder submitted affidavits and pretrial testimony of an expert. The expert stated that based upon his inspection of the ladder after the accident, he found no defect in the wood or its other components and no defect in its design or in the manufacturing process. He also noted that the ladder had been equipped with warning instructions which had been physically attached to it. He concluded that the ladder had been fractured by a lateral blow to its side rail which caused it to break. Chesebro-Whitman and Albany Ladder also contended that upon inspection of the ladder prior to its sale, no defects were discovered.

In opposition, plaintiffs submitted pretrial testimony of plaintiff as to the circumstances of the accident. He alleged that at the time of the accident, he was on the third rung of the ladder and was lacing telephone cables over his head when he heard the sound of breaking wood and felt the ladder go out from beneath him. He stated that nothing struck the ladder during the time he was using it.

In our view, contrary to the assertions of Chesebro-Whitman and Albany Ladder, plaintiffs were not required to submit expert testimony to rebut the expert's conclusions. As it has been stated, "[n]o doubt utilization of expert testimony is the rule rather than the exception in this type of case, but, in the end, each case must be judged upon its own facts" ( Jackson v. Melvey, 56 A.D.2d 836, 837, 392 N.Y.S.2d 312; see, Johnson v. Michelin Tire Corp., 110 A.D.2d 824, 488 N.Y.S.2d 77). The decisions in Powles v. Wean United Corp., 126 A.D.2d 624, 511 N.Y.S.2d 61, appeal dismissed 69 N.Y.2d 1016, 517 N.Y.S.2d 937, 511 N.E.2d 80 and Bingham v. Godfrey, 114 A.D.2d 987, 495 N.Y.S.2d 428, appeal dismissed 67 N.Y.2d 753, 500 N.Y.S.2d 102, 490 N.E.2d 1228, which Chesebro-Whitman and Albany Ladder cite for support, are inapposite. Although both cases noted that expert affidavits were required to rebut a prima facie showing by the movants for summary judgment in products liability causes of action, the only evidentiary proof submitted in opposition in each case was an attorney's affidavit without personal knowledge of the facts. In contrast, here, plaintiff's testimony was based on his own personal knowledge.

Nevertheless, even if it is accepted that plaintiffs were not required to submit expert testimony, it is still necessary to determine whether the evidence they did present was sufficient to defeat the motions by Chesebro-Whitman and Albany Ladder for summary judgment. As noted, plaintiffs alleged defects in the manufacture of the ladder, in its design and the failure to give adequate warnings ( see, Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 478-479, 426 N.Y.S.2d 717, 403 N.E.2d 440). In our view, plaintiffs sufficiently demonstrated a question of fact as to the defective manufacture of the ladder. Plaintiffs did not submit direct proof of a defect in the ladder; however, a defect in a product may be...