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Martha Almonte DE PICHARDO and Maximo Pichardo, Plaintiff(s), v. CENTRAL LAUNDRY SERVICE CORP., Lavatech Laundry Technology, Inc., and Lavatech Laundry Technoloy Gmbh, Defendant(s). Central Laundry Service Corp., Third-Party Plaintiff(s), North Shore Linen, Inc., Third-Party Defendant(s). Lavatech Laundry Technology, Inc., Second Third-Party Plaintiff(s), North Shore Linen, Inc., Second Third-Party Defendant(s).
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by defendant third-party plaintiff Central Laundry Service Corp. (hereinafter CLS) on August 23, 2021, under motion sequence seven, for an order, pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the verified complaint. This motion is opposed by plaintiffs Martha Almonte De Pichardo (hereinafter the injured plaintiff) and Maximo Pichardo (hereinafter collectively as plaintiffs) and defendant second third-party plaintiff Lavatech Laundry Technology, Inc. (hereinafter Lavatech USA).
Notice of Motion
Affirmation in Support
Exhibit A to Q
CLS Memorandum of Law in Support
CLS Statement of Material Facts
Lavatech USA Statement of Material Facts
Lavatech USA Memorandum of Law in Opposition
CLS Reply Memorandum
CLS Reply Affirmation
Exhibit A to E
Plaintiffs’ Affirmation in Opposition
Plaintiffs’ Counterstatement of Material Facts
Plaintiffs’ Statement of Material Facts
CLS Reply to Plaintiffs’ Opposition
On December 15, 2015, the injured plaintiff and Maximo Pichardo, suing derivatively, commenced the instant action to recover damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office (hereinafter KCCO).
The verified complaint contains one hundred and eighty-three numbered paragraphs in support of five causes of action. The first cause of action is for Breach of Warranty. The second cause of action is for Strict Products Liability. The third cause of action is for Negligence. The fourth cause of action is for Failure to Warn. The fifth cause of action is for Loss of Services asserted by Maximo Pichardo for the loss of services of Martha Almonte Pichardo, his wife.
The verified complaint alleges that on September 16, 2015, the date of the accident, the injured plaintiff was employed by the third-party defendant/second third-party defendant North Shore Linen (hereinafter NSL). On that day, while at work, the injured plaintiff sustained serious injuries while attempting to clear a jam from a Masterfold folding machine, model number E222, serial number E222L1193316 (hereinafter the subject folding machine).
The complaint further alleges that the subject folding machine was sold to NLS by defendant third-party plaintiff Central Laundry Service Corp. (hereinafter CLS), an alleged distributor of commercial laundry folding machines to the general public. Defendant second third-party plaintiff Lavatech Laundry Technology, Inc. (hereinafter Lavatech USA) and defendant Lavatech Laundry Technology GMBH (Lavatech Germany) are alleged to have, among other things, designed, manufactured, and sold the subject folding machine.
On August 17, 2016, CLS interposed a verified answer with a cross claim asserted against Lavatech USA and Lavatech Germany.
On that same day, CLS commenced a third-party action against NLS by filing a third-party summons, verified amended complaint and three annexed exhibits labeled A through C with the KCCO.
On September 7, 2016, Lavatech USA interposed a verified answer including a cross claim against CLS.
On September 20, 2016, NSL interposed a verified answer to the third-party complaint including a cross claim against Lavatech USA and Lavatech Germany and counter claims against CLS.
On October 19, 2016, CLS filed a reply to the counter claims asserted by NSL.
On October 26, 2021, Lavatech USA commenced a second third-party action against NSL by filing a second third-party summons and complaint with the KCCO.
On December 28, 2021, NSL interposed an answer to the second third-party complaint with a counter claim asserted against Lavatech USA.
The motion papers of CLS consist of a notice of motion, an affirmation of counsel, a memorandum of law, an affidavit by Michael Buccieri, a statement of material facts and seventeen annexed exhibits labeled A through Q. Exhibit A is a copy of the plaintiffs’ verified complaint. Exhibit B is a copy of CLS's verified answer and cross claim. Exhibit C is a copy of CLS's verified third-party complaint against NSL. Exhibit D is a copy of CLS's verified amended complaint third-party complaint against NSL. Exhibit E is a copy of NSL's verified answer with counter claims. Exhibit F is a copy of CLS's verified reply to NSL's counter claims. Exhibit G is a described as a copy of NYS Division of Corporations Entity Information concerning CLS, retrieved on July 30, 2018. Exhibit H is a copy of Affidavit of Harold Elrich, plaintiffs’ expert, dated June 10, 2016. Exhibit I is described as excerpts of from the Examination Before Trial (hereinafter EBT) of Stanley Olan, held on August 1, 2018. It includes the certification page. Exhibit J is described as excerpts of from the EBT of the injured plaintiff, Martha Almonte De Pichardo, held on April 23, 2018. It includes the certification page. Exhibit K is described as excerpts of from the continued EBT of the injured plaintiff, Martha Almonte De Pichardo, held on May 16, 2018. It includes the certification page. Exhibit L is described as a collection of exhibits, A through G, marked for identification at the EBT of the injured plaintiff on April 23, 2018. Exhibit M is described as a letter dated July 6, 2018, from David Bamberger, Esq., counsel to CLS, to Finz & Finz, P.C., prior counsel to CLS regarding the certified transcripts of the injured plaintiff's EBT conducted on April 23, 2018, and May 16, 2018. Exhibit N is described as Exhibit 1 marked for identification and authenticated at Stanley Olan's EBT. It includes thirty-six pages of various documents regarding 2014 sale invoices for used equipment. Exhibit O is described as Exhibit 2 marked for identification and authenticated at the Stanley Olan EBT. It includes invoices regarding the subject folding machine. Exhibit P is described as Exhibit 3 marked for identification and authenticated at Stanley Olan's EBT. It includes eight pages including an invoice from CLS to NSL dated February 4, 2014. Exhibit Q is described as Exhibit 11 marked for identification and authenticated at Stanley Olan's EBT. It includes a letter dated August 8, 2013, addressed to Stanley Olan from the LaundryList.com, Inc.
Lavatech USA's opposition papers consist of a statement of material facts and a memorandum of law.
Plaintiffs’ opposition papers consist of an affirmation of counsel, a counter statement of material facts, a statement of material facts and one annexed exhibit labeled A. Exhibit A is a copy of the Expert Affidavit of Harold Ehrlich.
CLS’ reply to Lavatech USA's opposition consists of an affirmation of counsel, a memorandum of law and five annexed exhibits labeled A through E. Exhibit A is a copy of an email document dated April 7, 2021. Exhibit B is a copy of an email document dated July 7, 2021. Exhibit C is a copy of excerpts from the EBT of Stanley Olan on November 30, 2018.
Exhibit D is a copy of a CLS’ response to discovery demands for OSHA citations. Exhibit E is a copy of excerpts from the EBT of Stanley Olan on August 1, 2018.
CLS’ reply to the plaintiffs’ opposition consists of an affirmation of counsel.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 ). The burden is upon the moving party to make prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 ).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).
A party opposing a motion for summary judgment is obligated to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 ).
CLS submitted, inter alia, part of the deposition testimony of the injured plaintiff and of its chief functioning executive officer. The injured plaintiff's deposition established the following facts. On September 16, 2015, the injured plaintiff was employed by NSL as a receiver. While she was doing her job on the day in question, a jam occurred in the subject folding machine. She pressed the red button on the subject folding machine thereby placing the machine on pause. She then crawled into the crawlspace between the subject folding machine and the attached commercial ironer to try to pull the jammed laundry out of the machine. As she was clearing the jam, another NSL employee, who did not realize that she was in the crawlspace, turned the machine back on, pulling the injured plaintiff's arms into the exposed belts and rollers.
BREACH Of WARRANTY
CLS contends that the subject folding machine was sold to NSL in 2014, with clear, unequivocal, and written disclaimer of express and implied warranties. Stanley Olan, the functioning chief executive officer of CLS, testified at his deposition that in January or February of 2014, CLS sold the subject folder to NSL pursuant to an invoice which he authenticated at his deposition. On the second page of the invoice, where the terms of the sale were stated, the invoice stated: “2. Central Laundry Service Corp. makes no warranties, express or implied, including but not limited to any warranty of merchantability or fitness for a particular purpose or use, which shall apply to the items purchased.”
The invoice contained clear and unmistakable language disclaiming any express or implied warranties. There is no dispute that CSL sold the folder to NSL and that it took possession of same more than one and half years prior to the accident. There is no dispute that CLS sold the folder to NSL, as described on the invoice, “Used, As Is and Where Is” and expressly disclaimed all warranties express and implied. CLS contends that the breach of implied warranty cause of action against it must fail because the sale was made on an “as is” basis and the disclaimer was conspicuously stated on the subject invoice received by NSL (Meyer v Alex Lyon & Son Sales Managers & Auctioneers, Inc.,67 AD3d 547, 548 [1st Dept 2009], citing Sky Acres Aviation Servs. v Styles Aviation, 210 AD2d 393 [2nd Dept 1994]). In light of the foregoing, CLS made a prima facie showing of entitlement to dismissal on the first cause of action for breach of warranty.
STRICT PRODUCTS LIABILITY
CLS's evidentiary submissions also demonstrated the following facts, among others. From 1985 onward, CLS operated its entire commercial linen supply and laundering business under the name Sea Crest Linen Inc. Since 1985 this was the only line of business CLS operated. Stanley Olan and his brother Bernard Olan each own 50% of the issued and outstanding shares of CLS. In 1993 CLS purchased the subject folding machine from Lavatec, the manufacturer, for use in its commercial linen supply and laundering business for $35,643.00.
In 2013, the Owen brothers decided to get out of the commercial linen business. In January or February of 2014, CLS then sold the used subject folding machine to NSL for salvage value in the amount of $4.000.00. As previously indicated, the sale of the subject folding machine was “as is” with a conspicuous disclaimer of express and implied warranties set forth in the invoice of the sale.
CLS contends that it was not a manufacturer of the subject folding machine and that it was not in the business of buying such a product for the purposes of resale. Rather, CLS contends that it was a casual or occasional seller of the subject folding machine and is therefore, not subject to strict products liability for the injured plaintiff's injuries caused by the subject folding machine.
Manufacturers may be held strictly liable for injuries caused by their products because of a mistake in the manufacturing process, because of a defective design or because of inadequate warnings regarding use of the product (Wass v Cnty. of Nassau, 153 AD3d 887, 888 [2nd Dept 2017]).
Strict products liability rests on several public policy considerations. In light of the increased complexity of modern products and manufacturing methods, often only the manufacturer “can fairly be said to know and to understand when an article is suitably designed and safely made for its intended purpose” (Codling v Paglia, 32 NY2d 330, 340 ). Relatedly, the manufacturer alone “has the practical opportunity, as well as considerable incentive, to turn out useful, attractive, but safe products (Sprung v. MTR Ravensburg Inc., 99 NY2d 468, 472—73 ).
In the matter of Sukljian v. Charles Ross & Son Co. (69 NY2d 89 ), the New York State Court of Appeals determined that the corporation that was initial purchaser and remote seller of equipment was not liable to remote purchasers under either strict products liability or negligence theories. In Sukljian (69 NY2d at 89), the Court of Appeals concluded that third-party defendant's sale of a surplus 11—year—old mill on an “as-is” basis was a casual or occasional sale, not subject to a claim of strict products liability, because it was wholly incidental to the seller's regular business. The “casual or occasional seller of a product does not undertake the special responsibility for public safety assumed by those in the business of regularly supplying those products” (Sukljian, 69 NY2d at 95). Moreover, as a practical matter, the occasional seller “has neither the opportunity, nor the incentive, nor the protection of the manufacturer or seller who puts that product into the stream of commerce as a normal part of its business, and the public consumer does not have the same expectation when it buys from such a seller” (id.). In light of the foregoing, CLS made a prima facie showing of entitlement to dismissal on the second cause of action for strict products liability.
NEGLIGENCE & DUTY TO WARN
CLS contends that it cannot be held liable to the plaintiff in negligence because it has no duty to the plaintiff. There is no dispute that CLS sold the subject folding machine to NSL “as is”, sometime in January and February of 2014. There is no dispute that NSL had possession of the subject folding machine which it used in its own commercial linen supply and laundering business. There is no dispute that the injured plaintiff was injured on September 16, 2015, while employed as a receiver by NSL and while working with the subject folding machine.
Since CLS did not sell the subject folding machine to the plaintiff, it owed no duty to the plaintiff (Hernandez v Biro Mfg. Co., 251 AD2d 375, 377 [2nd Dept 1998], citing Clute v Paquin, 219 AD2d 783 [3rd Dept 1995]).
Even if CLS did owe a duty to the plaintiff, it was only obligated to warn against dangers that were not obvious or discernible (see Hernandez v. Biro Mfg. Co., 251 AD2d 375, 377 [2nd Dept 1998], citing Sukljian, 69 NY2d 89). At most, the duty of a casual or occasional seller would be to warn the person to whom the product is supplied of known defects that are not obvious or readily discernible (Sukljian, 69 NY2d at 97, citing Copp v Corning Glass Works, 114 AD2d 144 [4th Dept 1984]). In the case at bar, the hazards of entering into a crawlspace between a commercial folder and ironer while the machine is on pause is inherently and obviously dangerous (see Ruggiero v Braun & Sons, 141 AD2d 528 2nd Dept 1988]). In light of the foregoing, CLS made a prima facie showing of entitlement to dismissal on the third cause of action in negligence.
LAVATEC USA's OPPOSITION TO CLS'S MOTION
Lavatec USA incorrectly assumed that CLS's motion for summary judgment in its favor sought dismissal of the verified complaint and also sought dismissal of Lavatec USA's cross claims asserted against it. In reply to Lavatec USA's opposition papers, CLS's has emphasized that instant motion for summary judgment only seeks dismissal of the plaintiff's verified complaint.
Consequently, all of Lavatec USA's arguments made in opposition to dismissal of its cross claims are inapplicable to the instant motion and are disregarded.
PLAINTIFFS’ OPPOSITION TO CLS'S MOTION
The plaintiffs have made several arguments in opposition to CLS's motion. First, they claimed that the motion was unsupported because CLS submitted only partial and incomplete excerpts of the depositions of the parties. Second, they claimed that CLS failed to establish that they were not a proximate cause of the accident. Third, they claim that CLS failed to establish that the subject folder had no hidden or latent defects and that CLS had no duty to warn. Fourth, they claim CLS fails to establish that it was a casual or occasional seller of industrial laundry equipment. Fifth, they claim that CLS's motion is premature.
The plaintiffs’ claim that the motion is unsupported because CLS relied on only excerpts and not complete deposition transcript is unavailing. First, every transcript CLS submitted contained the certification of the court reporter who conducted the deposition (see Tsai Chung Chao v Chao, 161 AD3d 564 [2nd Dept 2018], citing Franco v Rolling Frito—Lay Sales, Ltd., 103 AD3d 543 [1st Dept 2013]; CPLR 3116 [a]). They are therefore all in admissible form Second, the transcript of Stanley Olan is also independently admissible pursuant to CPLR 3116 (a) because by submitting its own functioning chief executive officer's depositions to the motion, CLS adopted his deposition as accurate (E.W. v City of New York, 179 AD3d 747, 747—48 [2nd Dept 2020], citing David v Chong Sun Lee, 106 AD3d 1044, 1045 [2nd Dept 2013]). Third, there is nothing improper about submitting only excerpts of deposition transcripts in support of a motion, so long as they are not misleading (Castano v Wygand, 122 AD3d 476, 477 [1st Dept 2014]). Finally, the plaintiffs were fully able to submit the entire transcript or any portion that they deemed relevant to their argument in opposition to the motion.
The plaintiffs also claim that CLS did not establish as a matter of law that they were not the proximate cause of the injured plaintiff's accident. That contention, however, is premised on the assumption that CLS had a duty to the plaintiff. CLS, however, had made a prima facie showing that as a casual or occasional seller of industrial laundry equipment it had no duty of care to the injured plaintiff.
The plaintiffs contend that Olan's testimony created a issue of fact regarding CLS's claim that it was a casual or occasional seller. In particular, they point to Olan's deposition testimony in which he stated that, between 1966 and 1985, CLS sold ironers, wash reels, dryers, and other machinery.
Olan, however, also testified that from 1985 onward, CLS operated its entire commercial linen supply and laundering business under the name Sea Crest Linen Inc and that since 1985 this was the only line of business CLS operated.
The fact that CLS may have been in the business of the sale of commercial laundry equipment over thirty-seven years ago and that it changed and maintained it business to a commercial linen supply and laundering since 1985 does not raise a triable issue of fact.
Plaintiffs claim that CLS failed to establish that the subject folder had no hidden or latent defects and that CLS had no duty to warn. At most, the duty of a casual or occasional seller would be to warn the person to whom the product is supplied of known defects that are not obvious or readily discernible (Sukljian, 69 NY2d at 97, citing Copp, 114 AD2d at 144).
The plaintiffs submitted the affidavit of Harold Ehrlich, a forensic engineer, to support this contention. However, Ehrlich admitted that subject folding machine contained the following warning: “Caution. Keep hands out of moving machinery.” Ehrlich opined that this warning was clearly inadequate. In the case at bar, however, the mechanism of injury was the injured plaintiff's act of entering into a crawlspace between a commercial folder and ironer while the machine was on pause. Inasmuch as this conduct was inherently and obviously dangerous CLS breached no duty by not giving a warning of this hazard (see Ruggiero, 141 AD2d at 528). As a casual or occasional seller, CLS's only duty was to warn of hidden or latent defects in the subject folding machine.
The plaintiffs also contend that CLS's motion is premature. In order to establish that a summary judgment motion is premature, the nonmoving party must offer an evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the moving party. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion (Lazarre v Gragston, 164 AD3d 574, 575 [2nd Dept 2018]).
The plaintiffs contend that due to the outstanding discovery, namely NSL's deposition, questions of fact still exist regarding the sale of the subject folder, its condition at the time of the sale, and the specifies of what CLS disclosed or failed to disclose. This argument would have some merit if it was offered in opposition to a summary judgment motion by NSL. However, CLS and the injured plaintiff were both deposed. The plaintiffs’ mere hope that the deposition of NSL may lead to evidence sufficient to defeat CLS's motion is insufficient.
In sum, CLS has made a prima facie showing of entitlement to summary judgment dismissing the plaintiffs’ claims for breach of warranty, strict products liability, and negligence. Furthermore, Maximo Pichardo's derivative claims must follow the dismissal of Martha Almonte Pichardo's claims that it is dependent upon. Accordingly, the motion by CLS for summary judgment dismissing the verified complaint is granted.
The motion by defendant third-party plaintiff Central Laundry Service Corp. of an order, pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the verified complaint is granted.
The foregoing constitutes the decision and order of this Court.
Francois A. Rivera, J.
Response sent, thank you
Docket No: Index No. 14608/2015
Decided: May 25, 2022
Court: Supreme Court, Kings County, New York.
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