Opinion
2014-05349, Index No. 2634/11.
05-04-2016
UTICA MUTUAL INSURANCE COMPANY, etc., et al., appellants, v. FORD MOTOR COMPANY, et al., defendants, Hassett Lincoln–Mercury Sales, Inc., respondent.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York, N.Y. (Chris Christofides of counsel), for appellants. Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York, N.Y. (Chris Christofides of counsel), for appellants.
Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.
Opinion In an action to recover damages for injury to property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Marber, J.), dated April 10, 2014, which granted the motion of the defendant Hassett Lincoln–Mercury Sales, Inc., for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Hassett Lincoln–Mercury Sales, Inc., for summary judgment dismissing the complaint insofar as asserted against it is denied.
In 1996, the plaintiff Halina Darrow purchased a new Lincoln Town Car (hereinafter the vehicle) from the defendant Hassett Lincoln–Mercury Sales, Inc. (hereinafter Hassett). In 2007, Darrow received a recall notice from the defendant Ford Motor Company (hereinafter Ford) for a component of the vehicle's cruise control system. The recall notice said that Ford was concerned that a malfunction could cause an underhood fire, even when the vehicle was not being operated. The recall notice directed Darrow to promptly contact her dealer to have a recall service performed on the vehicle. Thereafter, in September 2007 and February 2008, Hassett performed the recall service on the vehicle. Despite this service, in October 2009, a fire ignited in the engine compartment of the vehicle while it was parked in Darrow's garage, causing extensive damage to Darrow's home, the garage, and the vehicle itself.
The plaintiffs commenced the instant action against, among others, Hassett, alleging that Hassett negligently performed the recall service on the vehicle, and that Hassett was strictly liable for the sale of a defective product. Hassett moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court granted Hassett's motion, and the plaintiffs appeal.
Initially, we reject Hassett's contention that a prior order of the Supreme Court, Nassau County, dated May 9, 2013, constitutes the law of the case. That order did not address the precise question raised on Hassett's motion for summary judgment, and, in any event, this Court is not bound by the Supreme Court's prior order (see Martin v. City of Cohoes, 37 N.Y.2d 162, 371 N.Y.S.2d 687, 332 N.E.2d 867 ; Hampton Val. Farms, Inc. v. Flower & Medalie, 40 A.D.3d 699, 701, 835 N.Y.S.2d 678 ; Itamari
v. Giordan Dev. Corp., 298 A.D.2d 559, 748 N.Y.S.2d 678 ).
On the merits, the Supreme Court properly determined that Hassett established, prima facie, that its mechanics did not negligently perform the recall service on the vehicle and that its service on the vehicle was not a proximate cause of the fire (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). However, contrary to the determination of the Supreme Court, in opposition, the plaintiffs raised triable issues of fact as to whether Hassett negligently performed the recall service on the vehicle under a theory of res ipsa loquitur (see Scordo v. Costco Wholesale Corp., 77 A.D.3d 725, 728, 910 N.Y.S.2d 440 ; Banca Di Roma v. Mutual of Am. Life Ins. Co., Inc., 17 A.D.3d 119, 121, 793 N.Y.S.2d 341 ; see also Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200 ), and whether Hassett's alleged negligence was a proximate cause of the fire (see Schneider v. Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 744, 500 N.Y.S.2d 95, 490 N.E.2d 1221 ; Collins v. City of New York, 305 A.D.2d 529, 530, 759 N.Y.S.2d 349 ).
Further, contrary to the determination of the Supreme Court, the plaintiffs raised a triable issue of fact as to whether Hassett may be held strictly liable for the sale of a defective product (see Sprung v. MTR Ravensburg, 99 N.Y.2d 468, 473, 758 N.Y.S.2d 271, 788 N.E.2d 620 ; Nickel v. Hyster Co., 97 Misc.2d 770, 412 N.Y.S.2d 273 [Sup.Ct., Suffolk County] ; cf. Levine v. Sears Roebuck & Co. Inc., 200 F.Supp.2d 180, 191–192 [E.D.N.Y.] ).
Accordingly, the Supreme Court should have denied Hassett's motion for summary judgment dismissing the complaint insofar as asserted against it.