CORDELLA v. RAYMOND OF NEW JERSEY LLC

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Supreme Court, Appellate Division, Second Department, New York.

Eric CORDELLA, respondent, v. RAYMOND OF NEW JERSEY, LLC, appellant.

2015–06431

Decided: March 28, 2018

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Patrick J. Lawless, Phillip A. Tumbarello, and Joseph Wodarski of counsel), for appellant. Kevin L. Mosley, New York, NY, for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated April 29, 2015, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when a forklift operated by a coworker ran over his foot.  Thereafter, the plaintiff commenced this action against the defendant, alleging strict products liability and negligent repair and maintenance of the forklift.

The Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as alleged strict products liability.  The defendant failed to establish, prima facie, that it had no role in the design, distribution, marketing, or sale of the forklift (see Tompkins v. Trailer Stake Co., 131 A.D.3d 1163, 1163, 16 N.Y.S.3d 761;  Stokes v. Komatsu Am. Corp., 117 A.D.3d 1152, 1154–1155, 984 N.Y.S.2d 657;  Abele Tractor & Equip. Co., Inc. v. RJ Valente, Inc., 94 A.D.3d 1270, 1272, 942 N.Y.S.2d 668;  Ebenezer Baptist Church v. Little Giant Mfg. Co., Inc., 28 A.D.3d 1173, 1174, 814 N.Y.S.2d 471;  cf. Ito v. Marvin Windows of N.Y., Inc., 54 A.D.3d 1002, 1003–1004, 865 N.Y.S.2d 119;  Park v. Bay Crane, Inc., 49 A.D.3d 617, 618, 854 N.Y.S.2d 154;  Passaretti v. Aurora Pump Co., 201 A.D.2d 475, 475, 607 N.Y.S.2d 688).  Additionally, the defendant's submissions did not demonstrate, prima facie, that the plaintiff's actions constituted the sole proximate cause of his injuries (see Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29, 34, 926 N.Y.S.2d 377, 950 N.E.2d 113;  Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 534, 569 N.Y.S.2d 337, 571 N.E.2d 645;  Cecere v. Zep Mfg. Co., 116 A.D.3d 901, 902, 983 N.Y.S.2d 846;  cf. Gorbatov v. Matfer Group, 136 A.D.3d 745, 746, 26 N.Y.S.3d 92;  Isselbacher v. Larry Lopez Truck Equip. Mfg. Co., 66 A.D.3d 840, 841, 887 N.Y.S.2d 232;  Bruno v. Thermo King Corp., 66 A.D.3d 727, 729, 888 N.Y.S.2d 523).  As the defendant failed to meet its initial burden, the court properly denied that branch of its motion which was for summary judgment dismissing so much of the complaint as alleged strict products liability, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Miele Auto Parts, Inc. v. Automotive Capital, LLC, 109 A.D.3d 883, 885, 972 N.Y.S.2d 579).

Additionally, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint as alleged negligent repair and maintenance.  The defendant's evidentiary submissions were insufficient to eliminate triable issues of fact as to whether it created or was aware of the alleged braking problems of the forklift at the time of the accident (see Parker v. Crown Equip. Corp., 39 A.D.3d 347, 347–348, 835 N.Y.S.2d 46;  Brady v. Biotech Corp., 283 A.D.2d 452, 452, 724 N.Y.S.2d 480).  Since the defendant's submissions revealed the existence of triable issues of fact, it failed to demonstrate its prima facie entitlement to judgment as a matter of law and, accordingly, the court properly denied that branch of its motion which was for summary judgment dismissing so much of the complaint as alleged negligent repair and maintenance, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Farruggio v. Lavender, 123 A.D.3d 875, 876, 999 N.Y.S.2d 452).

MASTRO, J.P., BALKIN, CONNOLLY and CHRISTOPHER, JJ., concur.