Opinion
2001-03072
Argued May 28, 2002.
September 24, 2002.
In an action to recover damages for personal injuries, etc., the defendant Dutchess Overhead Doors, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated March 1, 2001, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiffs separately appeal from so much of the same order as granted that branch of the cross motion of the defendant Albany International Corp. which was for partial summary judgment dismissing the cause of action alleging improper design and manufacture insofar as asserted against it.
Lubinsky Kessler, New Hampton, N.Y. (Judith L. Lubinsky of counsel), for appellant.
Steven M. Melley, Rhinebeck, N.Y., for appellants-respondents.
Henderson Brennan, White Plains, N.Y. (John T. Brennan and Lauren DeMase of counsel), for respondent.
Before: DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, NANCY E. SMITH, GLORIA GOLDSTEIN, JJ.
ORDERED that the order is reversed insofar as appealed from by the defendant Dutchess Overhead Doors, Inc., on the law, the motion is granted, the complaint insofar as asserted against that defendant is dismissed, and the action against the remaining defendants is severed; and it is further,
ORDERED that the order is affirmed insofar as appealed from by the plaintiffs; and it is further,
ORDERED that one bill of costs is awarded to Albany International Corporation and Dutchess Overhead Doors, Inc., payable by the plaintiffs.
The plaintiff Ronald Brodbeck was injured at an IBM facility when, during the course of his employment with IBM, an open overhead door began to close and struck him on the head. The defendant Albany International Corp. (hereinafter Albany) manufactured the door and sold it to the defendant Dutchess Overhead Doors, Inc. (hereinafter Dutchess), which installed it. The door, which measured eight feet by eight feet, included a photocell, a standard safety feature, which was a stationary device mounted in the door frame six inches from the bottom of the door. If the photocell beam was broken, the door would not close or would reopen.
Dutchess installed the door frame and its component parts, including the photocell, but did not connect the wiring for the photocell. However, after an electrical contractor installed the electrical components and wired them, a Dutchess representative and an IBM safety engineer inspected the door, including the safety photocell, to ensure that it was fully operational.
IBM contracted with Axiom Real Estate Management, Inc. (hereinafter Axiom), to manage its real estate and facilities. In turn, Dutchess entered into an agreement with Axiom to repair the IBM door on an as-needed basis. Axiom provided all routine door maintenance and inspections. Between September 1990, when it installed the door, and April 17, 1997, the date of the accident, Dutchess returned to IBM three times to repair the door, most recently on December 17, 1996. In conjunction with the door repairs, Dutchess inspected the photocell.
Axiom employees performed preventive door maintenance and inspected it on April 10, 1997, one week before the plaintiff's accident. After the accident, Dutchess repaired the door and determined that the photocell was not connected when the accident took place, as the electric wire had been disconnected. After Dutchess reconnected the wire, the photocell operated properly.
The plaintiffs commenced this action against Albany alleging, among other things, improper design and manufacture of the door, against Dutchess, alleging negligent installation and maintenance of the door, and against Axiom, alleging negligent maintenance of the door. Following discovery, Albany, Dutchess, and Axiom moved for summary judgment dismissing the complaint. The Supreme Court granted partial summary judgment to Albany on the cause of action alleging improper manufacture and design, granted partial summary judgment to Axiom on the cause of action alleging breach of warranty, and denied the motion as to Dutchess in its entirety. Dutchess appeals, and the plaintiffs separately appeal regarding the grant of partial summary judgment to Albany. Axiom is not a party to this appeal.
Dutchess established its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Contrary to the Supreme Court's determination, the plaintiffs, in response, failed to raise an issue of fact that Dutchess had a duty to inspect the door or had negligently repaired it (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136; Zuckerman v. City of New York, 49 N.Y.2d 557; Vergara v. Tides Constr. Corp., 280 A.D.2d 665).
The Supreme Court properly determined that Albany was entitled to summary judgment dismissing the cause of action alleging improper manufacture and design. The fact that the photocell needed to be wired by an electrician did not constitute a design defect (see Robinson v. Reed-Prentice Division of Package Machinery Co., 49 N.Y.2d 471). Here, the door worked properly and safely until some party, other than Albany, disconnected the wire. Albany established, as the manufacturer, that it was not liable because of a modification by a third party (see Robinson v. Reed-Prentice Division of Package Machinery Co., supra). In response, the plaintiff failed to raise an issue of fact that the door, when installed and maintained properly, was nonetheless defectively designed or manufactured (see generally Alvarez v. Prospect Hosp., supra). Accordingly, the Supreme Court properly granted Albany's motion for summary judgment dismissing that cause of action insofar as asserted against it.
RITTER, J.P., ALTMAN, SMITH and GOLDSTEIN, JJ., concur.