Present: HON. ALLAN L. WINICK, Justice. Defendant(s). Third-Party Plaintiff,

Transcription

1 ?HORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ALLAN L. WINICK, Justice ROBERT WALKER, JR., Plaintiff, TRIAUIAS, PART 7 NASSAU COUNTY MOTION DATE: May II,2001 MOTION SEQUENCE: 003,004 INDEX NO /94 CALDOR, INC., TIBBETS ASSOCIATES and JEFFREY M. BROWN ASSOCIATES, INC., Defendant(s). JEFFREY M. BROWN ASSOCIATES, INC., Plaintiff, ECONOMY PLUMBING AND HEATING, CO., INC. Defendant. Third-Party Plaintiff, CMC ELECTRICAL CONTRACTING MAINTENANCE CORPORATION, & Defendants ROBERT WALKER, JR.,.

2 The following papers read on this motion: Notice of Motion/ Order to Show Cause Answering Affidavits Replying Affidavits Briefs: Plaintiffs/Petitioners Defendants/Respondent s Motion by defendant Tibbets Associates pursuant to CPLR 3212 for summary judgment is denied. Cross-motion by defendant Economy Plumbing and Heating Co., Inc. pursuant to CPLR 3212 for summary judgment is denied. In this action for damages for personal injury, plaintiff Robert Walker Jr. seeks to. recover from various contractors and subcontractors who contracted to perform work renovating a Caldor store in the Bronx, New York for injuries sustained on September 2, Walker, an employee of subcontractor CMC Electrical Contracting & Maintenance Corp. (CMC), was going to a subbasement where he was performing switching work. As he descended an open metal staircase similar to a fire escape, which was attached to the wall on only one side, the third step collapsed under his foot causing him to fall. It is claimed, inter alia, that on the same day and prior to plaintiff s fall, certain steamfitters had bounced a hot water heater weighing over five hundred pounds down the stairs. Defendant Tibbets Associates (Tibbets) seeks summary judgment averring that it was not responsible for the staircase or the hot water heater, did not own the premises, or create the dangerous condition. Neither, Tibbets claims, did it have a duty to maintain the staircase or hot water heater. Defendant Economy Plumbing and Heating Co. (Economy) seeks summary judgment averring that although its employees transported the hot water heater down the staircase which later collapsed under plaintiff, a jury would have to speculate to reach a conclusion that such act caused plaintiff s injury. 2

3 Plaintiff opposes both motions, and with respect to the main motion avers that Tibbets admitted at deposition that its employees and agents carried heavy equipment and material down the staircase. Plaintiff alleges that Tibbets also subcontracted demolition work consisting of breaking down walls, breaking down ceilings, concrete supports, bases... in the subbasement. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case * * * Failure to makesuch a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853). Tibbets has failed to meet its burden of proof that it had no part in carrying heavy equipment down the stairs which eventually collapsed under plaintiff. William Tibbet owner of Tibbet Associates testified at deposition that he hired several subcontractors to work on the Caldor project including [rliggers, plumbers, electricians, demolition service, [and] oil burners. Tibbet was asked about his employees use of heavy equipment on the staircase where plaintiff fell. He testified as follows: Q. Did you at any time in your visits to the job site view either the employees who were subcontractors ofyours orjeffrey Brown s carrying items up and down the stairs? A. Yes. Q. How did they do that; in what manner? A. If it was heavy, it was on dollies. If it wasn t heavy, they could carry it. 3.

4 Q. Wha t ite m s did they carry on the dollies? Large valves, mechanical pipes, boxes of materials, things of that nature. Things that were too heavy to carry. Q. Do you know from what compan ies those employees were? Q. No, I do not. None of them were from your - - They could have been... Con trary to defendant Tibbets contentions on this motion, it has not established as a ma tter of law that its e mp loyees or agents had nothing to do with the stairs where plaintiff fell. W hile the quoted testi mony indicates that W illia m T ibbets did not know which emp loyees specifically carried which pieces of heavy equip ment, the italicized portion of his testi mony does provide evidence that Tibbets saw his employees and those of defendant Jeffrey M. Brown Associates carrying equipment up and down the stairs, and that his e mp loyees could have been connected with the use of dollies and heavy equ ip ment on those stairs. Accordingly Tibbets cannot establish as a ma tter of law that the conduct of its e mp loyees and agents was not culpable, or that it did not contribute to the happening of the accident. W ith respect to defendant Economy Plumbing and Heating Co., Inc., plaintiff deposition testi mony indicates that Econo m y s emp loyees bounced a twelve foot long hot water heater in excess of five hundred pounds down the stairs the same day plaintiff fell. Economy avers that a jury would have to speculate to conclude that the hot water heater had anything to do with plaintiff s accident. Such contention approaches the frivolous. The evidence per m its a fair inference that the heavy equip ment, large valves, 4

5 mechanical pipes, boxes of materials needing dollies to be moved, and a five hundred pound water heater, all contributed to weakening the joints of the metal staircase leading to the eventual collapse of the third step. Whether defendants use of the stairs in this manner was negligent or a proximate cause of plaintiff s accident presents a factual issue not susceptible to summary judgment. The motion and cross-motion are denied. This constitutes the order of the court. Dated: June 26,200l Allan L. Winick J.S.C. 'JUN 28 NASSAU COUNT Y CQUNTY CLERKS OFFICE 5,