Opinion
01-25-2017
Filippo CIARAVINO, et al., appellants, v. BULLDOG NATIONAL LOGISTICS, LLC, et al., defendants, Bushwick Metals, Inc., et al., respondents.
Law Office of Thomas F. Liotti, LLC, Garden City, N.Y., for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Dennis P. Kisyk, Jr., and Judy C. Selmeci of counsel), for respondent Bushwick Metals, Inc. Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondent Design Assistance Construction Systems, Inc.
Law Office of Thomas F. Liotti, LLC, Garden City, N.Y., for appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Dennis P. Kisyk, Jr., and Judy C. Selmeci of counsel), for respondent Bushwick Metals, Inc.
Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondent Design Assistance Construction Systems, Inc.
L. PRISCILLA HALL, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered December 24, 2013, as granted that branch of the motion of the defendant Design Assistance Construction Systems, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, (2) so much of an order of the same court entered September 4, 2014, as denied their motion for leave to renew their opposition to that branch of the motion of the defendant Design Assistance Construction Systems, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and (3) so much of an order of the same court, also entered September 4, 2014, as granted that branch of the motion of the defendant Bushwick Metals, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
The plaintiff Filippo Ciaravino (hereinafter the injured plaintiff) was injured while working for nonparty GCM Steel Products, Inc. (hereinafter GCM), when he allegedly was struck by metal decking that fell from a tractor-trailer delivery truck. The defendant Design Assistance Construction Systems, Inc. (hereinafter DACS), manufactured and shipped the decking to GCM, and the defendant Bushwick Metals, Inc. (hereinafter Bushwick), supplied steel to DACS.
The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages for personal injuries against DACS and Bushwick, among others, alleging liability under theories of common-law negligence and the doctrine of res ipsa loquitur. Following discovery, DACS moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. The plaintiffs opposed the motion. In an order entered December 24, 2013, the Supreme Court granted that branch of DACS's motion. Subsequently, the plaintiffs moved for leave to renew their opposition to DACS's motion, submitting, for the first time, a report from an expert. Separately, Bushwick moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. The plaintiffs opposed the motion, submitting the expert's report. In two orders, both entered September 4, 2014, the court, inter alia, denied the plaintiffs' motion for leave to renew and granted the relevant branch of Bushwick's motion. The plaintiffs appeal from each of the three orders.
The Supreme Court properly granted the branch of DACS's motion which was for summary judgment dismissing the complaint insofar as asserted against it. DACS demonstrated its prima facie entitlement to judgment as a matter of law by submitting the deposition testimony of its plant manager, which established, prima facie, that DACS did not breach a duty of care to the injured plaintiff (see Moncion v. Infra–Metals Corp., Div. of Preussag Intl. Co., 20 A.D.3d 310, 800 N.Y.S.2d 381 ; La Manna v. Colucci, 138 A.D.2d 901, 526 N.Y.S.2d 643, affd. 73 N.Y.2d 898, 539 N.Y.S.2d 291, 536 N.E.2d 620 ; cf. Brownell v. Blue Seal Feeds, Inc., 89 A.D.3d 1425, 932 N.Y.S.2d 623 ; Farrington v. Bovis Lend Lease LMB, Inc., 51 A.D.3d 624, 857 N.Y.S.2d 236 ). The evidence submitted by DACS further established that the doctrine of res ipsa loquitur did not apply (see Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 453, 15 N.Y.S.3d 147 ; cf. Bucsko v. Gordon, 118 A.D.3d 653, 987 N.Y.S.2d 402 ). In opposition, the plaintiffs failed to raise a triable issue of fact (cf. Fontanez v. St. Barnabas Hosp., 38 A.D.3d 293, 830 N.Y.S.2d 657 ). Furthermore, the Supreme Court properly denied the plaintiffs' motion for leave to renew their opposition to DACS's motion, as the newly submitted evidence would not have changed the prior determination (see CPLR 2221[e][2] ; Ginsburg Dev. Cos., LLC v. Carbone, 134 A.D.3d 890, 894, 22 N.Y.S.3d 485 ; Sweeny v. Millbrook Cent. Sch. Dist., 130 A.D.3d 1011, 13 N.Y.S.3d 576 ).
The Supreme Court also properly granted that branch of Bushwick's motion which was for summary judgment dismissing the complaint insofar as asserted against it. Bushwick established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not perform the work that allegedly caused the injured plaintiff's accident, and exercised no control over the parties that allegedly performed that work (see Kleeman v. Rheingold, 81 N.Y.2d 270, 598 N.Y.S.2d 149, 614 N.E.2d 712 ; Chou v. A to Z Vending Serv. Corp., 36 A.D.3d 745, 830 N.Y.S.2d 204 ; Torres v. Allied Tube & Conduit, 281 A.D.2d 243, 721 N.Y.S.2d 655 ). Bushwick also established, prima facie, that the doctrine of res ipsa loquitur did not apply, as it lacked exclusive control over the instrumentality that allegedly caused the injured plaintiff's injury (cf. Assil v. Camba, Inc., 136 A.D.3d 720, 24 N.Y.S.3d 516 ).
In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact as to whether Bushwick was vicariously liable (see Teer v. Queens–Long Is. Med. Group, 303 A.D.2d 488, 755 N.Y.S.2d 430 ; McGrath v. United Hosp., 167 A.D.2d 518, 562 N.Y.S.2d 193 ). The evidence relied upon by the plaintiffs does not show the existence of "special circumstances in which there is sufficient authority and ability to control the conduct of third persons" (Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4 ; see Malave v. Lakeside Manor Homes for Adults, Inc., 105 A.D.3d 914, 962 N.Y.S.2d 716 ; Leifer–Woods v. Edwards, 281 A.D.2d 462, 722 N.Y.S.2d 43 ), nor does it establish the essential elements of a joint venture agreement between Bushwick and DACS (see Clarke v. Sky Express, Inc., 118 A.D.3d 935, 989 N.Y.S.2d 87 ; Maalin Bakodesh Socy. v. Lasher, 301 A.D.2d 634, 754 N.Y.S.2d 331 ; McGrath v. United Hosp., 167 A.D.2d at 519, 562 N.Y.S.2d 193 ). In addition, the plaintiffs failed to raise a triable issue of fact as to whether the instrumentality that allegedly caused the injured plaintiff's injury was in Bushwick's exclusive control (see Kyte v. Mid–Hudson Wendico, 131 A.D.3d at 453, 15 N.Y.S.3d 147 ).