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Chase v Circle Auto. Equip. Specialists, Inc. 2011 NY Slip Op 33063(U) November 16, 2011 Sup Ct, Suffolk County Docket Number: 1614/2009 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Shott Form Order

SUPREME COURT - STATE OF NEW YORK CALENDAR CONTROL PART - SUFFOLK COUNTY

PRESENT:
HON. PAUL J. BAISLEY, JR., J.S.c.

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JOV AN CHASE, Plaintiff, -againstCIRCLE AUTOMOllVE EQUIPMENT SPECIALISTS, INC., C.A.E.S.I. d/bla CIRCLE AUTOMOTIVE EQUIPMENT SPECIALISTS, L'IC., SNAP-ON lNCORPORA TED and SNAP-ON TOOLS COMPANY, LLC, Defendants.

lNDE)( NO.: 1614/2009 CALENDAR NO.: 20100250lOT MOTION DATE: 6/21120 II MOTION SEQ. NO.: 003 MD; 004 MG PLAINTIFF'S ATTORNEY: EDELMAN, KRASIN & JA YE, PLLC One Old Conntry Road Carle Place, New York 11514 DEFENDANTS' ATTORNEYS: LAW OFFICE OF ANDREA G. SAWYERS 3 Hnntington Quad., Suite 102S Melville, New York 11747 BIEDERMANN, REIFF, HOENIG &RUFF,P.C. 885 Third Ave., 16lh Floor New York, New York 10022 HAMMILL, O'BRlEN, CROUTlER, DEMPSEY, PENDER & KOEHLER, P.c. 6851 Jericho Tpke., Suite 250 Syosset, New York 11791

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Upon (he following papers numbered 1 to 46 read OIlthese motions for summary judgment: Notice of Motion! Order to Show Calise and SUppol1ing p<lp~rs 1-28: 29-40 ; Nbtiee of I O~~Mol;ol, ~lId Stll'pOIliit~ paper~ , Answering Affidavits and ~llpr()rling p:lper~ 41-42 , Replying Affidavits and suppon;ng papers 43-44: 45-46 ; 6ttter-_ , (midlIftel 1"111 illg eOtlll:le! ill ,101'1'(1 t <llIdoppo.~ed to tlie IIiOlioll) it is,

OR.DERED that the motion (#003) by defendant Circle Automotive Equipment Specialists, Inc., and the motion (#004) by defendants Snap-On Incorporated and Snap-On Tools Company, 1,LC, are consolidated for purposes of this determination; and it is ORDERED that the motion by defendant Circle Automotive Equipment Specialists, lnc., for summary judgment dismissing the complaint and the cross claim against it is denied; and it is ORDERED that the motion by defendants Snap-On Incorporated and Snap-On Tools Company, LLC. for summary judgment dismissing the complaint and the cross claims against them is granted. In January 2009, plaintiff Jovan Chase commenced this personal injury action seeking damages for injuries allegedly sustained while at an automotive service and repair shop located on Sumise Highway in Islip Terrace, New York. Plaintiffs injuries allegedly occurred on September 5, 2006, when a hydraulic car lift was lowered onto his foot as he was in the repair area of the shop,

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javal! Chw;f! v Cird~ Alltomotive el (11. index No. f614/2009

speaking with an employee. The automotive shop, a franchise of Meineke Car Care Centers, Inc" is operated by the franchisee, John Grasselino, through a New York corporation, defendant Ammograss, Inc. Meineke Car Care Centers owns the property and leases it to Grasselino under the tenns of the franchise agreement. The lill at issue, known as a four-post car lift, had previously been used at another repair shop and allegedly was purchased by Grasselino from the previous owner in May 2005. Prior to its purchase, Martin Gross, the owner of defendant Circle Automotive Equipment Specialists, Inc., inspected the four-post car lift, as well as two other car lifts purchased for the automotive shop, on behalf of Grasselino. Gross allegedly arranged for the delivery to and the installation of the used car lifts at the subject automotive shop, and arranged financing for the cost orthe installation. Although it is undisputed that the subject car lift was installed in June 2005 by non parties Joe Green and Mike Bushemi, a dispute exists as to whether Green and Bushemi were working for Circle Automotive Equipment Specialists or for an independent subcontractor, Tri-Sate Automotive. It is undisputed, however, that Gross returned to the shop and inspected the lifts to make sure they were level and fully functional after the installation job was complete. Subsequently, in 2006, repairs were made to the four-post car lift, and defendant Snap-On, Inc. allegedly sold equipment to Amrnograss, Inc. that was added onto the lift. The complaint alleges, in part, that Circle Automotive Equipment Specialists (hereinafter Circle Automotive), Snap-On, Inc., and Snap-On Tools Company, LLC, were negligent in the instaltation, construction, maintenance, inspection and/or repair of the subject car lift, that they caused or permitted a dangerous and defective condition to exist on the subject premises, and that they failed to "reasonably anticipate that persons lawfuHy adjacent to said auto lift could sustain physical injuries by reason orthe unsafe, dangerous and defective condition that existed." By his bill of particulars, plaintiff further alleges that Circle Automotive negligently maintained and repaired the car Jill, and that it negligently trained and instructed employees and franchise owners as to the safe operation of the car lift. It is noted that prior to the commencement of this action, plaintiff brought two other personal injury actions seeking damages for the injuries to his foot. One action, assigned index number 27769/2006, was brought against !mmograss, Inc., weeks after the accident (hereinafter referred to as Action No.1). The second action, assigned index number 1510/2008, was brought against Meincke Car Care Centers and Driven Brands, Inc., a holding company which owns Meincke Car Care Centers (hereinafter Action NO.2). Circle Automotive now moves for an order granting summary judgment dismissing the complaint and the cross claim against it, arguing that it had no notice that the car Iift at issue was in a dangerous or defective condition, and that it cannot be held liable for the alleged negligent work performcd by a subcontractor. In support, Circle Automotive submits, among other things, copies of the pleadings in this action, as well as copies of the summonses and complaints served in Action No. t and Action NO.2. It also submits an unsigned copy of the transcript of plaintiffs deposiiion testimony in Action No. l, which was taken in April 2007; an unsigned and uncertified copy of the transcript of the deposition testimony of Edward Lindley, who appeared in April 2007 on behalf of Ammograss, Inc.; an unsigned and uncertified copy of the transcript of Grasse Iino's deposition testimony, which was taken in February and April 2010; and the unsigned and uncertified deposition transcript of Phil Sepulveda, a nonparty witness. In addition, Circle Automotive submits the Signed and certified transcript of the deposition testimony of Gross, who tcstified on its behalf. -2-

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jOWlI1 Clime v Circla !lulOmofi,'c el al

Index No. 1614/]009

Snap-On, Inc., and Snap-On Tools Company (hereinafter collectively referred to as Snap-On) also move for summary judgment dismissing the complaint and all cross claims against them on the grounds that they did not design, manufacture, sell or maintain the subject car lift; that the automotive products sold to Amrnograss, Inc., would not have affected the operation of the lift; and that there is no evidence Snap-On products, employees or agents caused or contributed to plaintiff's accident. Snap-On's submissions in support of the motion include copies of the pleadings, a copy of plaintiffs response to interrogatories, unsigned copies of deposition transcripts, and an affidavit of Michael Macomber, Snap-On's Operations Manager for North America. In opposition, plaintiff submits an affirmation by his counsel. As to Circle Automotive's motion, plaintiff asserts that triable issues exist as to whether employees of Circle Automotive negligently installed, or negligently repaired, the four-post car lift and, ifso, whether such negligence

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