Opinion
INDEX NO. 150197/2015
09-11-2019
ZOLJARGAL NYAMBUU, Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., COLITE INTERNATIONAL, LTD., and NORTH SHORE NEON SIGN CO., INC., Defendants.
NYSCEF DOC. NO. 162 PRESENT: HON. KATHRYN E. FREED Justice MOTION DATE 05/25/2019, 05/25/2019, 05/25/2019 MOTION SEQ. NO. 001 002 003
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 6.3, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 156 were read on this motion to/for SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 002) 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 109, 121, 136, 137, 138, 139, 140, 141, 142, 143, 144, 154, 155 were read on this motion to/for SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 003) 9.8, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 118, 119, 120, 145, 146, 147, 148, 149, 150, 151, 152, 153, 158 were read on this motion to/for SUMMARY JUDGMENT.
Motions bearing sequence numbers 001, 002 and 003 are consolidated herein for determination. This action involves a claim for bodily injury allegedly caused when a piece of acrylic covering a sign on a building's façade fell off and struck a pedestrian on the head.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Zoljargal Nyambuu, a resident of the County, City and State of New York (amended verified complaint [complaint], ¶ 1), alleges that, at the time of her accident, defendant Whole Foods Market Group, Inc. (Whole Foods) operated a retail store (Premises) at 4 Union Square South in Manhattan (Building), at which site the exterior sign at issue is located (id. ¶ 5). Plaintiff also alleges, upon information and belief that, at Whole Foods' behest, Colite International, Ltd. (Colite) designed and manufactured the sign (id. ¶¶ 12-14) and North Shore Neon Sign Co., Inc. (North Shore) installed, maintained and serviced it (id. ¶¶ 18-22).
Plaintiff contends that, on February 13, 2014, she was "lawfully at, about, in front of or upon the [Whole Foods] premises or the abutting sidewalk when she was struck by a piece or portion of the sign" (id. ¶ 23), causing her severe injuries.
Plaintiff alleges that the sign spelled out Whole Foods' name in letters about three and a half feet high, and was mounted about 12 to 15 feet above the sidewalk, over a doorway to the store (see amended affirmation of Thomas P. Valet, Esq., in opposition to defendants' motions, executed November 27, 2018 [Valet affirmation], ¶ 4 [NYSCEF Doc No. 135]). Plaintiff also contends that the piece of the sign which struck her was one quarter of the acrylic cover which formed the face of the third letter "O" in Whole Foods' name (id. ¶ 7).
Plaintiff submits this same November 27, 2018 Valet affirmation in opposition to the summary judgment motions of all three defendants.
Plaintiff asserts three causes of action against all three defendants: negligence, breach of warranty and strict products liability. First, plaintiff alleges that defendants were negligent in their design, manufacture, installation, and maintenance of the sign (complaint, ¶ 25).
In her second cause of action for breach of warranty, plaintiff asserts that defendants breached the implied warranties of merchantability and fitness for a particular use. Specifically, plaintiff alleges that defendants knew that the sign had not been properly tested and that the sign "was not free from latent defects in its manufacture, design, production, marketing, supply, sale, installation and/or maintenance," yet defendants still "placed the sign in the stream of commerce in an unsafe and unfit condition" (id. ¶ 32).
In her third cause of action for strict liability, plaintiff alleges that defendants are strictly liable to her, as "a person who will foreseeably and potentially be ultimately exposed to the use or operation of the sign" (id. ¶ 35).
In their answers, defendants generally deny the allegations of the complaint and assert crossclaims against their codefendants.
LEGAL CONCLUSIONS
To prevail on a summary judgment motion, the movant must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; see also Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [proponent of summary judgment "'must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'"]). If the moving party fails to make a prima facie showing of its entitlement to summary judgment, the motion must be denied, regardless of the sufficiency of the opposing papers (William J. Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]).
Once this showing is made, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019, 1020 [1995]).
In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant (Branham v Loews Orpheum Cinemas, 8 NY3d 931, 932 [2007]). Party affidavits and other proof must be examined closely "because summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978] [citation and internal quotation marks omitted]). Still, "only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" (id.).
Motion Sequence Number 001
North Shore seeks summary judgment dismissing the negligence claim against it pursuant to the rule stated by the Court of Appeals in Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]). North Shore also asserts that it is not liable for breach of warranty or strict products liability because it was not part of the sign's manufacturing, selling or distributive chain. In the event plaintiff's causes of action for breach of warranty and strict liability are not dismissed against it, North Shore requests that it be granted prospective indemnification by Colite, the sign's manufacturer, which hired North Shore to perform the installation and which provided the specifications for the sign's installation (affirmation of Renaud T. Bleecker, Esq., executed August 17, 2018 [Bleecker affirmation], ¶¶ 10, 13 and 23).
North Shore argues that it owes no duty of care to Ms. Nyambuu or other third parties with respect to the condition of the Premises. It contends that it is an independent contractor which was hired to install Whole Foods' storefront sign and was occasionally asked to repair the sign, but only on an "on call" basis (id. ¶¶ 10, 13).
In Espinal, the Court of Appeals stated that "a finding of negligence must be based on a breach of a duty" and that "a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party" (98 NY2d at 138 [citations omitted]). "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (id. [citation omitted]).
The Court of Appeals notes three exceptions to this rule
"in which a party who enters into a contract to render services may be said to have assumed a duty of care - and thus be potentially liable in tort - to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely"(id. at 140 [citations, internal quotation marks and alterations omitted]).
North Shore contends that it cannot be held liable because none of Espinal's exceptions apply. First, North Shore asserts that none of its work, from its installation of the sign in 2005 to its occasional service calls to repair the sign (see affidavit of Larry Brown, North Shore's Secretary and Treasurer [Brown aff], annexed to the Bleecker affirmation as exhibit AA, ¶¶ 2, 4), "created or exacerbated a dangerous condition" (Espinal, 98 NY2d at 142).
North Shore also alleges that plaintiff cannot claim that she relied to her detriment on North Shore's continuing performance of duties under contract because there is no evidence that she knew of the existence of North Shore, or its role in installing and repairing the sign, before she was injured (see Bleecker affirmation, ¶ 16). North Shore also avers that it never entered into any contract requiring its continuous performance at the Premises (see Brown aff, ¶ 4). Finally, North Shore alleges that it never assumed exclusive control over the sign's maintenance and so could not have displaced either Whole Foods or Colite as a party responsible for maintaining the sign (Bleecker affirmation, ¶ 17).
Plaintiff fails to allege any facts to counter North Shore's allegations. She asserts that defendants' motions, collectively, must be denied because they fail to show defendants' prima facie entitlement to summary judgment, as they do not show that their conduct in designing, manufacturing, installing and maintaining the sign over the entrance to the Premises "was in accordance with good and accepted standards for sign manufacturers and installers" (Valet affirmation, ¶ 16).
Plaintiff submits the Valet affirmation in opposition to North Shore's motion in motion sequence number 001, and in opposition to the summary judgment motions of defendants Whole Foods and Colite, in motion sequence numbers 002 and 003, respectively.
Plaintiff misstates defendants' burdens on their motions. To prevail at summary judgment, the movant must "establish a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (William J. Jenack Estate Appraisers and Auctioneers, Inc., 22 NY3d at 475 [citation and internal quotation marks omitted]). Where summary judgment is sought to dismiss a plaintiff's causes of action, the movant must submit proof which shows plaintiff's causes have no merit (CPLR 3212 [b]).
"Once the movant makes the proper showing, 'the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'" (Stonehill Capital Mgt. LLC, 28 NY3d at 448, quoting Alvarez, 68 NY2d at 324).
Generally, to recover on a cause of action for negligence, "a plaintiff must establish that the defendant owed him a duty to use reasonable care, and that it breached that duty" (Turcotte v Fell, 68 NY2d 432, 437 [1986] [citations omitted]).
Neither plaintiff nor any of the other defendants dispute North Shore's assertion that it is an independent contractor which had no role in the ownership, occupancy, or control of the Premises. Under Espinal, its contractual relationship with Colite, standing alone, will not give rise to tort liability to Ms. Nyambuu. There is no evidence that its limited work at the Premises transformed the sign into a force or instrument of harm, or that North Shore assumed a continuing contractual duty to maintain the sign, or that plaintiff ever had cause to rely on North Shore's continuing contractual performance (see Espinal, 98 NY2d at 140).
North Shore submitted sworn statements by its representative, in the form of deposition testimony, to show that its work at the Premises was limited to its installation of the exterior sign and to several service calls, at which North Shore performed specific repairs to the sign, at the request of Colite (see Bleecker affirmation, ¶ 10). North Shore states that it entered no contract requiring it to perform continuing inspection and maintenance of the sign (see id.). North Shore admits that it was once called upon to repair the sign's letters before Ms. Nyambuu was injured, but its business records indicate that the repair became necessary due to ice damage (see Valet affirmation, exhibit B at 31-32), and did not arise from faulty construction, installation or repair of the sign.
North Shore raises two additional points in opposition to plaintiff's negligence allegations. Citing Gordon v American Museum of Natural History (67 NY2d 836 [1986]), North Shore contends that it cannot be held liable because it had no notice of any defective or dangerous condition at the Premises (see Bleecker affirmation, ¶ 19). North Shore, citing James v Wormuth, also argues that the doctrine of res ipsa loquitur cannot be applied against it because there is no reason to conclude that the "failure" of the sign was the type of accident which does not normally occur in the absence of negligence (21 NY3d 540, 546 [2013]) (see Bleecker affirmation, ¶ 21).
It appears that North Shore had no notice of any defect or danger at the Premises, but this Court need not address this issue since
"Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises. The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present, a party cannot be held liable for injury caused by the defective or dangerous condition of the property"(Balsam v Delma Eng'g Corp., 139 AD2d 292, 296-97 [1st Dept 1988] [citations omitted]).
North Shore meets none of these criteria. Plaintiff makes no allegation that North Shore ever occupied, owned or controlled the Premises and so North Shore cannot be liable for any dangerous or defective condition there (Santos v Daniello Carting Co., LLC, 148 AD3d 463, 464 [1st Dept 2017] [contractor that installed metal plate which plaintiff allegedly tripped over, causing his injury, could not be liable for dangerous or defective condition because contractor did not own or manage property, and so had no duty to maintain property in safe condition]).
The "special use" exception does not apply either because North Shore is not the owner of an abutting parcel of land.
"The principle of special use. . . imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part used in a reasonably safe condition to avoid injury to others"(Balsam, 139 AD2d at 298 [citations omitted]).
With respect to the doctrine of res ipsa loquitur, North Shore raises another potential issue of fact, which is whether the sign's "failure" was the sort of accident which could occur in the absence of negligence. However, this Court need not reach that question either. North Shore's lack of ownership in, and control over, the Premises also makes it improper to impose liability for negligence upon it under the doctrine of res ipsa loquitur (see, e.g., Tora v GPV AG, 31 AD3d 341, 342 [1st Dept 2006] [for finding of liability on the theory of res ipsa loquitur, plaintiff must establish, among other things, that her injury was "caused by an agency or instrumentality within the exclusive control of the defendants"], citing Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]).
North Shore argues that breach of warranty and products liability claims cannot be maintained against it, as "a party that is outside the manufacturing, selling or distributive chain" (Watford v Jack LaLanne Long Is., 151 AD2d 742, 744 [2d Dept 1989] [internal quotation marks and citations omitted) (see Bleecker affirmation, ¶¶ 22-24). Installers are outside this chain (Casella v Ajay Glass & Mirror Co., 147 AD3d 1307 [4th Dept 2017] [subcontractor which did not buy windows from manufacturer to sell to general contractor, but only installed windows, held not part of distribution chain]), as are companies which provide repair services (Nickel v Hyster Co., 97 Misc 2d 770, 773 [Sup Ct, Suffolk County 1978] [fork lift repairer]).
Plaintiff makes no argument to oppose North Shore's motion, other than to assert that defendants are liable because the sign, by breaking and causing her injury, proved that it "was not fit for its intended purpose and/or . . . was defective at the time that it was designed, manufactured, sold and/or installed by defendants" (Valet affirmation, ¶ 50). This assertion does not raise a material issue of fact requiring trial and so plaintiff's second and third causes of action must also be dismissed against North Shore.
Neither Whole Foods nor Colite have submitted opposition to North Shore's motion, and so North Shore's motion for summary judgment is granted, dismissing all of plaintiff's causes of action against North Shore, and all cross claims against North Shore by Whole Foods and Colite.
Motion Sequence Number 002
Whole Foods moves for summary judgment dismissing the complaint under CPLR 3212. It contends, among other things, that it cannot be held liable because plaintiff cannot show that Whole Foods caused the "failure" of the sign or had actual or constructive notice of a defect or dangerous condition before plaintiff's injury (citing, inter alia, Trujillo v Riverbay Corp., 153 AD2d 793, 794 [1st Dept 1989]). Whole Foods repair records, however, show that it was aware of a dangerous condition involving the sign which previously arose when snow or ice accumulated.
Lawrence Brown, the North Shore principal deposed on June 9, 2017, has worked for more than 30 years in the business of fabricating, installing and servicing signs (Brown tr 6: 9-17 [NYSCEF Doc No. 138]). He averred that the type of sign installed at Whole Foods did not require preventive maintenance and was designed to withstand weather extremes in the New York City area (id. 54:4-8). Mr. Brown further states that, in all his years in the industry, he has never seen vinyl-coated acrylic letters like the ones used in the Whole Foods sign break unless they were struck by something (id. 54:9-16).
Whole Foods knew that lettering on its sign had been broken once before due to ice damage. That fact was memorialized by an invoice that North Shore sent to Colite, dated April 26, 2007, for the repair and replacement of the lens caps for the "WH" and "D" characters in the Whole Foods sign, which were "DAMAGED BY ICE" (Bleecker affirmation, exhibit X). Those repairs cost Whole Foods $1,865.00 (id.).
Plaintiff states that, upon leaving the Premises, she received a staggering blow on the back of her head, then turned and saw snow, ice and shattered pieces of the Whole Foods sign on the pavement behind her (see Nyambuu January 17, 2017 deposition transcript, 43:4-20, 61:6-25] [NYSCEF Doc No. 91]). From this, Ms. Nyambuu concluded that she had been hit on the head by part of the sign's lettering.
James Draughn, the Whole Foods manager plaintiff deposed on April 6, 2017, provides a narrative largely in accord with Ms. Nyambuu's but does not draw the same conclusion. He states that a Whole Foods coworker known as "Shines" told him that he had seen videotape of Ms. Nyambuu, taken by the Building's camera as she left the Premises, which shows that Ms. Nyambuu had been struck by snow [Draughn tr. 63:23 to 65:5] [NYSCEF Doc No. 92]).
It appears that a significant amount of snow fell on the day of plaintiff's incident. Specifically, Mr. Draughn stated that he arrived at the store at 6:30 a.m. that day, at which time it was snowing steadily. Building porters had already shoveled the pavement around the store but approximately an inch of new snow had already accumulated by the time he had arrived (Draughn tr, 12:2 to 13:9). The "Incident Report Form" Mr. Draughn prepared after his contact with Plaintiff indicates that the "Time of Incident" was "10:50 AM" (annexed as part of exhibit D to the affirmation of Cesar O. Bilbao, Esq. affirmation, sworn to September 10, 2018, in support of Colite's summary judgment motion).
Mr. Draughn left the witness information section of that incident report form blank (id.), even though plaintiff was accompanied into the Whole Foods store, and into Mr. Draughn's presence, by a bystander who had witnessed the incident, and who had encouraged plaintiff to take photos of the site of the accident immediately after it occurred (see Nyambuu tr, 55:21 to 59:12, Draughn tr, 25:16 to 26:9). Mr. Draughn purposely moved plaintiff away from this person so he could "actually like hear [what Ms. Nyambuu] was saying and see if she needed help" (Draughn tr, 26:10-14). Mr. Draughn did not ask the bystander to provide any information or ascertain that bystander's name (id. 27:23 to 28:9). Mr. Draughn would not state whether this bystander was a man or a woman (id.).
"[I]n order for a landowner or lessee to be held liable to a plaintiff for an allegedly defective condition upon the property, 'it must be established that a defective condition existed, and that the defendant landowner or lessee affirmatively created the condition or had actual or constructive notice of its existence'"(Zuniga-Iscoa v Pasta La Vista, Inc., 2017 NY Slip Op 30467[U], ** 2 [Sup Ct, NY County 2017], quoting Zamor v Dirtbusters Laundromat, Inc., 138 AD3d 1114, 1114 [2d Dept 2016]).
"A showing that the owner or occupant of premises had notice of a dangerous condition is sufficient to raise a question of fact as to the negligence of the owner or occupant in failing to correct such dangerous condition" (85 NY Jur 2d Premises Liability § 204, citing, inter alia, Ramos v HSBC Bank, 29 AD3d 435, 436 [1st Dept 2006]). The occurrence of a previous accident may provide such notice, by making the owner or occupant aware of the dangerous condition and giving it reason to expect that the condition would cause injuries in the future (85 NY Jur 2d Premises Liability § 205, citing, inter alia, Mesnick v State of New York, 118 AD2d 214, 217 [3d Dept 1986] [previous accident at swimming hole]; see also Klepper v Seymour House Corp., 246 NY 85 [1927] [annual accumulations of ice and snow falling from building]).
A defendant may be "charged with constructive notice of each specific re-occurrence of the hazardous condition" (Simoni v 2095 Cruger Assoc., 285 AD2d 431, 432 [1st Dept 2001], citing, inter alia, Osorio v Wendell Terrace Owners Corp., 276 AD2d 540, 540 [2d Dept 2000]). Accordingly, to avoid liability, a defendant must show it cannot be charged with constructive notice because the dangerous condition was not "frequent, ongoing, and customary, and that [it] did not have actual notice of this allegedly recurring condition" (Osorio, 276 AD2d at 540).
Considering the 2007 incident, the trier of fact could possibly find that Whole Foods had actual notice that the roof and ledges of the Premises are prone to accumulate snow or ice and that such accumulation could fall off and cause harm to persons or property below. A tenant with such knowledge may be held liable (Sanchez v 1710 Broadway, Inc., 79 AD3d 845, 846 [2d Dept 2010]), and so Whole Foods' motion for summary judgment, with respect to plaintiff's first cause of action for negligence, must be denied.
Whole Foods, citing Goldberg v Village of Mt. Kisco (125 AD3d 929, 930 [2d Dept 2015]), also asserts that plaintiff's cause of action for negligence fails because she cannot show what caused her alleged injuries without engaging in speculation. Goldberg, however, is inapposite. In that case, the plaintiff claimed that he tripped over an exposed tree root in a village park and fell, injuring himself. The defendant Village, however, prevailed because plaintiff stated that he did not "feel anything that caused him to fall" and did not see the root immediately before or after he fell (id. at 930). The court determined that plaintiff's claim failed because it was "just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, [and so] any determination by the trier of fact as to causation would be based upon sheer speculation" (id. at 929-30 [internal quotation marks and citations omitted]).
Whole Foods does not contend that plaintiff is being untruthful about being struck on the head and so has accepted that blow as the cause of her alleged injury. The possible causes of that blow arise from the dangerous condition posed by accumulated snow or ice, of which Whole Foods apparently had actual notice. Unlike the plaintiff in Goldberg, Ms. Nyambuu turned immediately after she was hit and saw the broken pieces of the sign behind her, together with snow and ice. The trier of fact could thus determine, based on this evidence, that plaintiff was hit by the sign, or by snow or ice, or by some combination of the three. Indeed, as shown by the photos taken at the site, the pieces of sign that fell that day were green on one side but white on the other (see exhibit F to Valet affirmation), and so may have appeared like chunks of snow oh the videotape as they fell on or around Ms. Nyambuu, if their green side faced away from the camera. Accordingly, on this record, determination of causation would not be an exercise in "sheer speculation."
Curiously, Whole Foods argues that res ipsa loquitur cannot apply because the sign is designed to last for decades, withstand snow, sleet and rain, and not to break easily. Whole Foods appears to misunderstand the purpose of the doctrine. Res ipsa loquitur is often applied in cases like this for the very reason that objects normally do not fall from buildings onto pedestrians in the absence of someone's negligence (see, e.g., Corcoran v Banner Super Mkt., 19 NY2d 425, 430 [1967] ["A board's propulsion upon a pedestrian walking down a street is the sort of occurrence which does not usually happen unless someone was negligent"]).
Whole Foods also argues that res ipsa loquitur should not apply because it was not in "exclusive control and possession" of the "injury-producing agency," i.e., the sign. It asserts that it lacks such exclusive control and possession because it is only one of the Building's several commercial tenants and that it is not responsible for maintenance of the outside of the Building. Still, indicia of control and possession point to Whole Foods. The sign is its property, which it bought and paid for, had mounted above a doorway to its leasehold, and which it pays to maintain and repair. It is true that Colite orders North Shore to perform such repairs, but it is up to Whole Foods to determine when repairs are needed and to order the repairs through Colite (deposition transcript of Roger Stallings, Executive Vice President of Colite, 42:24 to 43:17 [NYSCEF Doc No. 93]). Further, Whole Foods does not assert any claims against its landlord or cotenants, much less explain how they ever exercised possession or control over the sign, which hangs from the Building's façade some 12 feet or more above the sidewalk.
Besides, the party arguing in favor of applying res ipsa loquitur need not show that the defendant's control was absolute. "The concept of exclusive control does not require rigid application since the general purpose of this element is to indicate from the circumstances that it probably was the defendant's negligence which caused the accident" (Payless Discount Ctrs., Inc. v 25-29 N. Broadway Corp., 83 AD2d 960, 961 [2d Dept 1981, citing Corcoran, 19 NY2d at 431-32). Proof that Whole Foods' landlord or other tenants had accessed Whole Foods' sign could preclude the inference of liability under res ipsa loquitur (Payless Discount Ctrs., Inc., 83 AD2d at 961, citing De Witt Props. v City of New York, 44 NY2d 417 [1978]), but Whole Foods offers no such proof. Thus, this record presents triable issues of fact as to whether the sign, from which broken pieces allegedly struck plaintiff, was within Whole Foods' exclusive control (Spearin v Linmar, L.P., 137 AD3d 571, 572 [1st Dept 2016] [citations omitted]).
Whole Foods would not fare any better if it were determined that the agency or instrumentality which caused Ms. Nyambuu's injury was the accumulation of snow or ice. In those circumstances, the trier of fact could still find that Whole Foods' negligence was the probable cause of plaintiff's accident (Payless Discount Ctrs., Inc., 83 AD2d at 961). From the 2007 incident, the trier of fact could determine that Whole Foods had actual notice that snow or ice accumulations could fall off the Building and strike its sign or, by the same token, people standing below. Even if it did not have access to the Building's roof or ledges to remove snow or ice, or to erect a barrier to hold it back until it melted (see Klepper, 246 NY at 95), Whole Foods controls the doorway under the sign and could have taken simple precautions to protect customers and pedestrians from harm. A photo of those doors shows they are clearly marked with multiple stickers stating that it is "Not an Entrance" (Valet affirmation, exhibit E), and so the Premises must have at least one other doorway for customers' use. Those other doors could have been used as both an entrance and an exit. Whole Foods could have locked the doorway under the sign and "rope[d] off the sidewalk or in some other way [] warn[ed] pedestrians not to walk on the sidewalk adjoining the building until the condition had been eliminated" (Taylor v Bankers Trust Co., 80 AD2d 483, 488 [1st Dept 1981]).
Finally, Whole Foods argues it cannot be held liable for breach of warranty or strict products liability because, as the purchaser of the sign, it is outside the manufacturing, selling and distributive chain that placed it in the stream of commerce. Whole Foods is correct on this point. As the sign's owner, it is "a party that is outside the manufacturing, selling or distributive chain" (Watford v Jack LaLanne Long Is., 151 AD2d at 742), and so claims of breach of warranty and strict products liability cannot be maintained against it. Further, plaintiff presents no factual or legal argument in opposition, and so plaintiff's causes of action for breach of warranty and strict products liability must be dismissed against Whole Foods.
Motion Sequence No. 003
Defendant Colite moves for summary judgment seeking dismissal of Whole Foods' and North Shore's cross-claims and dismissal of plaintiff's complaint, under CPLR 3212 (b). Colite argues that it cannot be held liable in negligence for any dangerous condition at the Premises because it did not own, occupy or control the Premises and it had no notice of any dangerous condition. Colite also argues that it cannot be held liable because it did not create the alleged defective condition.
North Shore opposes Colite's motion to strike North Shore's cross claims and seeks conditional indemnity against Colite on any of plaintiff's products liability claims that survive, premised on the fact that Colite supplied the sign and specifications for its installation to North Shore (reply affirmation in opposition of Renaud T. Bleecker, executed December 3, 2018, ¶ 2).
Whole Foods does not oppose the motions of Colite or North Shore and so is deemed to consent to the dismissal of its cross-claims against them. Plaintiff's causes of action against North Shore are dismissed in their entirety and so the cross claims between it and its codefendants are also dismissed.
Colite asserts that the sign was designed to be safe for use outdoors in New York City and that it performed quality control checks on the sign after its manufacture to ensure that it would work properly (affirmation of Cesar O. Bilbao, Esq. [Bilbao affirmation] [NYSCEF Doc No. 99], ¶ 26). Roger Stallings, Colite's Executive Vice President, testified at his deposition that, as a first step in making a sign, Colite's in-house design department prepares mechanical shop drawings in accordance with customer specifications and branding guidelines (id. exhibit H [Stallings tr 8:24 to 9:3, 57:11 to 58:9]). For Whole Foods, Colite relied on its manufacturing shop drawings to fabricate the sign's aluminum "can" body and to cut its acrylic facings (id. 26:2 to 27:14). After fabrication, Colite performed quality control inspections to ensure that the sign was properly assembled, free from flaws and lighting properly (id. 29:23 to 30:10). Mr. Stallings attests that, for years, Colite has worked with design engineers and followed industry practices, in the design and manufacturing of its signs (id. 33:7 to 34:2). He also asserts that the sign and its lettering could not have failed because of some defect, as plaintiff claims, but only because it had been struck in some way (id. 92:18 to 93:22 and 96:18 to 97:8).
Negligence
Plaintiff's first cause of action against Colite is for negligence (see complaint, ¶¶ 25-27). To the extent that her negligence claim is based on premises liability it must be dismissed, because Colite was never an owner, occupant or in control of the Premises (Balsam, 139 AD2d at 296-97).
Plaintiff's negligence claim, insofar as it is premised on the design and manufacture of the sign, also fails. Relying principally on the testimony of Roger Stallings, its Executive Vice President, Colite denies causing or creating the alleged defective condition. Plaintiff, relying on the testimony of its putative expert, Richard B. Crawford, argues that Colite was negligent in its design and construction of the sign, positing that the plastic trim cap affixing the letter faces to the sign exerted stress on the letters, causing them to break. In reply, Colite asserts Mr. Crawford's opinion about the negligent design and manufacture of the sign is not supported by any evidentiary foundation and is based on speculation intended to create an issue of fact in order to avoid summary judgment.
To maintain a cause of action for negligent design, plaintiff must show that the defendant knew, or reasonably should have known, of the defect that allegedly makes the product dangerous (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 480 [1980] [manufacturer "bear[s] the responsibility if its purposeful design choice presents an unreasonable danger to users. A cause of action in negligence will lie where it can be shown that a manufacturer was responsible for a defect that caused injury, and . . . could have foreseen the injury"]). Similarly, to establish a cause of action for negligent manufacture, plaintiff must show that the defendant knew or should have known of the manufacturing defect or was otherwise negligent in causing the defect (Capara v Chrysler Corp., 52 NY2d 114, 123-24 [1981]).
Plaintiff makes neither of these showings. The only evidence plaintiff offers in opposition to Colite's motion for summary judgment seeking dismissal of plaintiff's negligence claim, as well as its other causes of action, is its expert's affidavit. Under New York law, "an expert's affidavit proffered as the sole evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor" (Romano v Stanley, 90 NY2d 444, 451-52 [1997]).
As Colite notes in its reply, Mr. Crawford's opinion is premised on his assumption that "the face [of the sign] inevitably cracked" because the acrylic plastic lettering, bordered with flexible plastic trim cap "permanently screwed" to the aluminum body of the sign, contracted in the cold (Valet affirmation, exhibit G, at 3). Mr. Crawford concludes that the contraction of the sign's plastic face at the time of the accident caused it to break (id.), but he offers no evidentiary facts to support that conclusion. Furthermore, Mr. Crawford did not examine the sign itself, but only reviewed photographs taken after the incident. He also does not state the methodology he used to identify Colite's use of a flexible trim cap, instead of metal retainers or other measures, as the defect in the sign's design and manufacture.
Here, the "personal professional background" of plaintiffs' expert (see Valet affirmation, exhibit G) is insufficient to lend credence to his opinions since lawyers whose experience is apparently limited to legislative and zoning issues would ordinarily lack the expertise to make technical judgments about the design and fabrication processes of sign manufacturers (see Romano, 90 NY2d at 452).
Even if Mr. Crawford's conclusions were not otherwise speculative and conclusory, the value of his opinion is questionable. Mr. Crawford states that he is an attorney licensed to practice in Pennsylvania and that he has been "directly involved in the design, manufacture and installation of on-premises signs" since 1983, but he provides no support for this assertion other than to note his involvement and affiliation with several sign industry groups, in which he focused on legislative and zoning issues (id. at 1). He claims to have attached a "complete CV" to his opinion but presents no such document to this Court. More importantly, he does not claim to have any technical, mechanical, industrial or scientific expertise (id.). Thus, this Court cannot conclude that Mr. Crawford has the requisite training and experience to qualify as an expert on the design and manufacture of illuminated exterior signs (People v Leung, 272 AD2d 88, 89 [1st Dept 2000]).
Additionally, Mr. Crawford's affidavit "is devoid of any reference to a foundational scientific basis for its conclusions" (id.), and fails to describe how his personal knowledge, acquired through practice or study or industry literature, might have provided technical support for his opinions (id.). "Simply put, his conclusions about the cause of the accident are purely speculative" (Kalish v HEI Hosp., LLC, 114 AD3d 444, 446 [1st Dept 2014] [citation omitted]). Thus, Mr. Crawford's affidavit is insufficient to defeat Colite's motion for summary judgment (id.), and so Colite's motion for summary judgment, insofar as it seeks dismissal of plaintiff's first cause of action for negligence, is granted.
Breach of Warranty
In her second cause of action, plaintiff asserts that Colite breached the implied warranty of merchantability by placing a product upon the market in an unsafe and unfit condition (complaint, ¶ 32). In her third cause of action, plaintiff asserts that, under the doctrine of strict products liability, Colite is liable to plaintiff as a person who was foreseeably exposed to danger from this defective sign (complaint, ¶ 35).
Through the testimony of Mr. Stallings discussed above, Colite met its prima facie burden by showing that the sign was fit for use as an exterior sign in New York. Upon this showing, the burden shifted to plaintiff, obliging her to maintain her breach of warranty claim by producing evidentiary facts to show that the sign was not reasonably "fit for the ordinary purposes for which such goods are used" (UCC 2-314 [2][c], quoted in Denny v Ford Motor Co., 87 NY2d 248, 258 [1995]; see also Tardella v RJR Nabisco, Inc., 178 AD2d 737, 737 [3d Dept 1991] [plaintiff's burden pleading strict products liability, breach of warranty or negligence is "to show that a defect in the product was a substantial factor in causing the injury and . . . that the defect complained of existed at the time the product left the manufacturer"], citing, inter alia, Heller v U.S. Suzuki Motor Corp., 64 NY2d 407 [1985]).
Plaintiff does not make this showing. Instead, she merely asserts that, because a piece of the sign fell and struck her, the sign obviously failed to perform in the manner it was intended to and thus proved to be defective (Valet affirmation, ¶ 50). Colite's motion for summary judgment, dismissing plaintiff's second cause of action for breach of warranty, must therefore be granted.
Strict Products Liability
Plaintiff's third cause of action, for strict products liability, also fails. A manufacturer which places a defective product on the market may face strict products liability for any resulting injuries. A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product (Denny, 87 NY2d at 256).
"Under New York law, a design defect may be actionable under a strict products liability theory if the product is not reasonably safe. Since this Court's decision in Voss v Black & Decker Mfg. Co. (59 NY2d 102, 108 [1983]), the New York standard for determining the existence of a design defect has required an assessment of whether 'if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner'"(id. at 256-57).
Colite makes its prima facie showing by demonstrating that its design of the sign was reasonably safe (Bilbao affirmation, exhibit H [Stallings tr] 8:24 to 9:3, 26:2 to 27:14, 29:23 to 30:10, 33:7 to 34:2, 57:11 to 58:9, 92:18 to 93:22 and 96:18 to 97:8). To meet her burden in opposition, plaintiff must show that Colite "marketed a product which was not reasonably safe in its design, that it was feasible to design the product in a safer manner, and that the defective design was a substantial factor in causing the plaintiff's injury" (Gonzalez v Delta Intl. Mach. Corp., 307 AD2d 1020, 1021 [2d Dept 2003], citing Voss, supra).
Plaintiff does not meet any of these criteria. The only evidence plaintiff presents to support her allegation that the sign was defectively designed is the opinion of her putative expert, a lawyer with no demonstrated technical experience or expertise in the design or manufacture of signs. His opinion lacks probative value and is thus insufficient to defeat Colite's motion for summary judgment (see Romano, 90 NY2d at 452).
"To establish a prima facie case of strict products liability predicated on manufacturing defect, a plaintiff must prove that the product did not perform as intended and that the product was defective when it left the manufacturer's control" (Wesp v Carl Zeiss, Inc., 11 AD3d 965, 968 [4th Dept 2004]).
At his deposition, Mr. Stallings testified that the sign was built to Whole Foods' specifications, was inspected for defects and was found to be in proper order when it was shipped to North Shore for installation, meeting Colite's prima facie burden. In opposition, plaintiff failed to meet its burden by submitting direct evidence that the defect that allegedly caused her injuries existed at the time that the sign left Colite's shop, or by "'exclud[ing] all other causes for the product's failure that are not attributable to defendant[ ]'" (Rabon-Willimack v Robert Mondavi Corp., 73 AD3d 1007, 1009 [2d Dept 2010], quoting Speller v Sears, Roebuck & Co., 100 NY2d 38, 41 [2003]). Specifically, plaintiff offers no direct evidence that the defect she describes ever existed. She also ignores Whole Foods' admission that she was struck by snow as she exited the Premises, as noted by Colite's counsel in their moving papers (Bilbao affirmation, ¶ 22 [citing Draughn tr at 64-65]), which shows that there is another cause for the sign's failure not attributable to Colite. Accordingly, Colite's motion for summary judgment, dismissing plaintiff's third cause of action for strict products liability, must be granted.
Therefore, in light of the foregoing, it is hereby:
ORDERED that, in motion sequence number 001, North Shore's motion for summary judgment dismissing the causes of action asserted against it by plaintiff and the cross claims asserted against it by Whole Foods and Colite is granted, and those claims are severed and dismissed; and it is further
ORDERED that, in motion sequence number 002, Whole Foods' motion for summary judgment dismissing the causes of action asserted against it by plaintiff is granted, in part, with respect to plaintiff's second cause of action for breach of warranty and third cause of action for strict products liability, and those claims are severed and dismissed, but the motion is denied with respect to plaintiff's first cause of action against Whole Foods for negligence; and it is further
ORDERED that, in motion sequence number 003, Colite's motion for summary judgment dismissing the causes of action asserted against it by plaintiff and the cross claims asserted against it by North Shore and Whole Foods is granted, and those claims are severed and dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that counsel for the remaining parties are directed to appear at a previously scheduled mandatory settlement conference before Hon. Miles Vigilante at 80 Centre Street, Room 106, New York, New York on September 16, 2019 at 11 a.m.; and it is further
ORDERED that this constitutes the decision and order of the court. 9/11/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.