Spearmon v. Times Square Stores Corp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before DAMIANI
• Citation: Spearmon v. Times Square Stores Corp., 465 N.Y.S.2d 230, 96 A.D.2d 552 (N.Y. App. Div. 1983)
• Decision Date: 18 July 1983
• Parties: Ray SPEARMON, Plaintiff-Respondent, v. TIMES SQUARE STORES CORP., Defendant-Respondent, Quaker State Oil Refining Corp., Appellant.

Page 230

465 N.Y.S.2d 230

96 A.D.2d 552

Ray SPEARMON, Plaintiff-Respondent, v. TIMES SQUARE STORES CORP., Defendant-Respondent Quaker State Oil Refining Corp., Appellant.

Supreme Court, Appellate Division Second Department.

July 18, 1983.

McLaughlin, Simone & Lawlor, New York City (Martin M. McGlynn, New York City, of counsel), for appellant.

Portnoy & Rubin, Huntington Station (Henry B. Portnoy, Huntington Station, of counsel), for plaintiff-respondent.

Before DAMIANI, J.P., and MANGANO, O'CONNOR and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, defendant Quaker State Oil Refining Corporation (Quaker State) appeals from an order of the Supreme Court, Kings County, dated August 25, 1982, which denied its motion pursuant to CPLR 3212, for summary judgment dismissing the plaintiff's complaint and the cross claims of defendant Times Square Stores Corp. (TSS).

Order reversed, on the law, with costs and motion granted.

Plaintiff, a temporary employee engaged by TSS at its retail department store in Melville, New York, was injured on April 25, 1979, when a carton of Quaker State Motor Oil fell on him at those premises. In his complaint, plaintiff alleged, inter alia, that: (1) the carton which fell on him had come from a dangerously "high and unbalanced stack" of cartons of Quaker State Motor Oil and (2) the defendants TSS and Quaker State were responsible for the accident.

After joinder of issue, defendant Quaker State moved pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint and the cross claims of defendant TSS. In support of the motion, Quaker State submitted an affidavit of its vice-president in charge of "direction and supervision of sales activities", who alleged that (1) pursuant to a "National Account, Retail Warehouse Delivery * * * Agreement" signed on March 13, 1978, by Quaker State and TSS, which was annexed to the motion papers, delivery of Quaker State's products was made at the TSS warehouse in Brooklyn, (2) all motor oil shipments from Quaker State to TSS in 1979, were made to the TSS warehouse at 104-01 Foster Avenue in Brooklyn and not to any TSS retail outlet, and (3) redistribution of the motor oil to retail outlets was done by the customer, i.e., TSS.

In opposition to the motion, both plaintiff and defendant TSS submitted affirmations from their respective counsel, alleging that irrespective of where Quaker State's motor oil was shipped, a question of fact existed as to Quaker State's duty to warn TSS that cartons of motor oil should not be stacked too high.

Special Term denied the motion.

We reverse.

It has been consistently held that to obtain summary judgment "it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. [b] ), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298; see, also, Shaw v. Time-Life Records, 38 N.Y.2d 201, 379 N.Y.S.2d 390, 341 N.E.2d 817; Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776).

To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial and "must make his showing by producing evidentiary proof in admissible form" ( Friends of Animals v. Associated Fur Mfrs., supra, pp. 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298). As the court in Di Sabato v. Soffes, 9 A.D.2d 297,...