Rampersaud v. Hsieh Hsu Machinery Co., Ltd.

• Decision Date: 14 July 2021
• Docket Number: 2017-11966,Index 206/09
• Citation: 2021 NY Slip Op 04384
• Parties: Rudenauth Rampersaud, et al., plaintiffs-respondents, v. Hsieh Hsu Machinery Co., Ltd., defendant- respondent, Orbit Electrical Services Corp., defendant third-party plaintiff, et al., defendants; Ares Printing and Packaging Corporation, third-party defendant-appellant.
• Court: New York Supreme Court

2021 NY Slip Op 04384

Rudenauth Rampersaud, et al., plaintiffs-respondents, v. Hsieh Hsu Machinery Co., Ltd., defendant- respondent, Orbit Electrical Services Corp., defendant third-party plaintiff, et al., defendants; Ares Printing and Packaging Corporation, third-party defendant-appellant.

Index No. 206/09

Supreme Court of New York, Second Department

July 14, 2021

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for third-party defendant-appellant.

David A. Kapelman, P.C., New York, NY, for plaintiffs-respondents.

Henrichsen Siegel, PLLC, New York, NY (Chiung-hui Huang of counsel), for defendant-respondent.

REINALDO E. RIVERA, J.P., BETSY BARROS, LINDA CHRISTOPHER PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the third-party defendant appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated August 3, 2017. The order, insofar as appealed from, denied the third-party defendant's motion for summary judgment dismissing the complaint insofar as asserted against the defendant third-party plaintiff, Orbit Electrical Services Corp., the third-party complaint, and the cross claims of the defendant Hsieh Hsu Machinery Co., Ltd., insofar as asserted against it.

ORDERED that the appeal from so much of the order as denied that branch of the third-party defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant third-party plaintiff, Orbit Electrical Services Corp., is dismissed as academic in light of our determination on a related appeal (Rampersaud v Hsieh Hsu Machinery Co., Ltd., ___ A.D.3d ___ [Appellate Division Docket No. 2018-09113; decided herewith]); and it is further, ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

On or about January 24, 2006, the plaintiff Rudenauth Rampersaud (hereinafter the injured plaintiff) allegedly was injured during the course of his employment with the third-party defendant, Ares Printing and Packaging Corporation (hereinafter Ares), when he attempted to clean the glue roll of a corrugator machine with a cloth by placing his left hand between the glue roll and a rotating cylinder while the machine was operating. The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages for personal injuries against, among others, Hsieh Hsu Machinery Co., Ltd. (hereinafter Hsieh), the manufacturer of the corrugator machine, and Orbit Electrical Services Corp. (hereinafter Orbit), which serviced various machines owned and operated by Ares. Orbit commenced a third-party action against Ares for indemnification and/or contribution, and Hsieh filed an amended answer with cross claims against, among others, Ares for indemnification and/or contribution. Thereafter, Ares moved for summary judgment dismissing the complaint insofar as asserted against Orbit, the third-party complaint, and Hsieh's cross claims insofar as asserted against it. In an order dated August 3, 2017, the Supreme Court, inter alia, denied Ares's motion. Ares appeals.

Initially, we note that in a related appeal (Rampersaud v Hsieh Hsu Machinery Co., Ltd., _____ A.D.3d _____ [Appellate Division Docket No. 2018-09113; decided herewith]), we decline to disturb the Supreme Court's determination in another order dated August 3, 2017, granting Orbit's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. In light of that determination, Ares is entitled to summary judgment dismissing the third-party complaint (see Nicola v United Veterans Mut. Hous. No. 2, Corp., 178 A.D.3d 937, 940; Keegan v Moriarty-Morris, 153 A.D.3d 683, 684; Isaacs v Federated Dept. Stores, Inc., 146 A.D.3d 762, 765).

"[A]n injured party's own reckless and extraordinary conduct can constitute 'an intervening and superseding event which severs any causal nexus between the occurrence of the accident and any alleged negligence on the part of the defendants'" (Tisdell v Metropolitan Transp Auth., 139 A.D.3d 844, 846, quoting Lynch v Metropolitan Transp. Auth., 82 A.D.3d 716, 717; see Amatulli v Delhi Constr. Corp., 77 N.Y.2d 525, 534). "Whether the conduct of an injured party 'is a superseding cause or whether it is a normal consequence of the situation created by a defendant are typically questions to be determined by the trier of fact'" (Tisdell v Metropolitan Transp. Auth., 139 A.D.3d at 846, quoting Dumbadze v Schwatt, 291 A.D.2d 529, 529). "'However, the issue of proximate cause may be decided...