FRITZ v. JLG INDUSTRIES INC (2021)

Orders, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about February 24, 2020, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motions for summary judgment on the issue of liability on their Labor Law § 240(1) claims against defendants Triborough Bridge and Tunnel Authority and MTA New York City Transit, Metropolitan Transportation Authority, MTA Bridges & Tunnels (collectively, TBTA/MTA), denied defendants/third-party defendants JLG Industries, Inc.’s (JLG) and United Rentals, Inc. and United Rentals (North America), Inc.’s (together, United) motions for summary judgment dismissing the complaints, cross claims, and third-party complaint as against them, and denied as untimely TBTA/MTA's cross motion for summary judgment against JLG and United on the issue of common-law indemnification, unanimously modified, on the law, to grant JLG's motion for summary judgment dismissing plaintiff Fritz's strict products liability claim based on a manufacturing defect, and otherwise affirmed, without costs.

Any defect in the design of the boom lift that collapsed while plaintiffs were in its platform was not a superseding cause of the accident relieving TBTA/MTA of liability under Labor Law § 240(1) (see generally Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912 [1993]).

As neither Fritz nor TBTA/MTA opposed JLG's motion for summary judgment dismissing Fritz's strict products liability claim based on a manufacturing defect as against it, and neither makes any arguments about it on appeal, we dismiss that claim as abandoned (see Norris v. Innovative Health Sys., Inc., 184 A.D.3d 471, 473, 126 N.Y.S.3d 122 [1st Dept. 2020]).

The court correctly denied JLG's motion for summary judgment dismissing Fritz's strict products liability claim based on a design defect as against it, given TBTA/MTA's experts’ opinions that the outer mid boom retract wire ropes failed because of a long-term lack of up-close visual inspection and maintenance, which could not have been performed without completely disassembling the boom lift, due to its defective design (see e.g. Alicea v. Gorilla Ladder Co., 181 A.D.3d 512, 119 N.Y.S.3d 58 [1st Dept. 2020]; Sanchez v. Martin Maschinenbau GMBH & Co., 281 A.D.2d 284, 722 N.Y.S.2d 140 [1st Dept. 2001]; Napier v. Safeguard Chem. Corp., 224 A.D.2d 310, 638 N.Y.S.2d 40 [1st Dept. 1996]).

Summary dismissal of Fritz's negligence claim against United was also correctly denied, given JLG's experts’ opinions that it was possible to inspect the integrity of the outer mid boom retract wire ropes adequately without disassembling the entire boom lift and that United would have detected any issues with those wire ropes had it properly inspected and maintained the boom lift (see e.g. DeGidio v. City of New York, 176 A.D.3d 452, 453-454, 110 N.Y.S.3d 413 [1st Dept. 2019], lv dismissed in part, denied in part 35 N.Y.3d 963, 124 N.Y.S.3d 624, 147 N.E.3d 1161 [2020]; Parker v. Crown Equip. Corp., 39 A.D.3d 347, 835 N.Y.S.2d 46 [1st Dept. 2007]).

The motion court could properly have considered TBTA/MTA's untimely cross motion for summary judgment on its common-law indemnification claims against JLG and United, since both JLG and United moved for summary judgment dismissing those claims (see Osario v. BRF Constr. Corp., 23 A.D.3d 202, 803 N.Y.S.2d 525 [1st Dept. 2005]; Sanchez v. 404 Park Partners, LP, 168 A.D.3d 491, 92 N.Y.S.3d 9 [1st Dept. 2019]; see generally Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281-282, 824 N.Y.S.2d 244 [1st Dept. 2006], appeal dismissed 9 N.Y.3d 862, 840 N.Y.S.2d 765, 872 N.E.2d 878 [2007]). Nevertheless, the motion should be denied on the merits. Indeed, no party is entitled to summary judgment as to those claims (see Naughton v. City of New York, 94 A.D.3d 1, 10, 940 N.Y.S.2d 21 [1st Dept. 2012]). Not only do issues of fact remain as to JLG's and United's liability, as discussed, but TBTA/MTA has not yet demonstrated that it is only vicariously liable to plaintiffs and was not actually negligent, especially since plaintiffs’ Labor Law § 200 and common-law negligence claims remain pending against it, and no one has advocated for their dismissal (see 11 Essex St. Corp. v. Tower Ins. Co. of N.Y., 153 A.D.3d 1190, 1197, 63 N.Y.S.3d 13 [1st Dept. 2017]).

JLG's remaining argument that certain misstatements of fact by the motion court require reversal is unavailing (see Matter of Breann B., 185 A.D.2d 711, 586 N.Y.S.2d 71 [4th Dept. 1992]).