Ruben Fonseca, respondent, v. Angelica Textile Services, Inc., appellant, et al., defendant. (2011)

Argued—September 22, 2011

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendant Angelica Textile Services, Inc., appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 17, 2010, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Angelica Textile Services, Inc., which was for summary judgment dismissing the first, second, third, and fourth causes of action insofar as asserted against it, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiff, an employee of a hospital, allegedly was injured while transporting linens on a bin delivered by the defendant Angelica Textile Services, Inc. (hereinafter Angelica), which provided linen service to the hospital.   According to the plaintiff, the bin, which was on wheels, suddenly stopped as he was pushing it, causing him to injure his back.

The Supreme Court properly denied that branch of Angelica's motion which was for summary judgment dismissing the fifth cause of action alleging negligence insofar as asserted against it.   In opposition to Angelica's prima facie showing of its entitlement to judgment as a matter of law with respect to that cause of action, the plaintiff raised triable issues of fact as to whether Angelica created or had constructive notice of an allegedly dangerous condition relating to the bin (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562;  Currado v. Waldbaum, Inc., 303 A.D.2d 442, 443;  Albergo v. Deer Park Meat Farms, 138 A.D.2d 656, 656–657).

However, as correctly conceded on appeal by the plaintiff, the first, second, third, and fourth causes of action relating to products liability cannot be sustained against Angelica since it did not manufacture, distribute, or sell the bin (see Sukljian v. Ross & Son Co., 69 N.Y.2d 89, 94–95).   Therefore, the Supreme Court should have granted that branch of Angelica's motion which was for summary judgment dismissing those causes of action insofar as asserted against it.

ANGIOLILLO, J.P., DICKERSON, CHAMBERS and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court