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Steinberg v. D. Waldner Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 12, 2003
305 A.D.2d 492 (N.Y. App. Div. 2003)

Opinion

2002-03320

Argued March 11, 2003.

May 12, 2003.

In an action to recover damages for personal injuries, etc., the defendants D. Waldner Co., Inc., and Steelcase, Inc., separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated February 5, 2002, as denied those branches of their respective cross motions which were for summary judgment dismissing the complaint insofar as asserted against them.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Garden City, N.Y. (Kathleen D. Foley of counsel), for appellant D. Waldner Co., Inc.

Mulholland, Minion Roe, Williston Park, N.Y. (Brian R. Davey and Catherine M. Gray of counsel), for appellant Steelcase, Inc.

Tierney Tierney, Port Jefferson Station, N.Y. (George W. Clarke of counsel), for respondents.

Before: A. GAIL PRUDENTI, P.J., DAVID S. RITTER, SANDRA J. FEUERSTEIN, THOMAS A. ADAMS, JJ.


DECISION ORDER

ORDERED that the order is reversed insofar as separately appealed from, on the law, with one bill of costs, the cross motions are granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the the remaining defendant is severed.

The plaintiffs commenced this action to recover damages for injuries sustained by the plaintiff Ellyn Steinberg on December 11, 1992, when the top drawer of a three-drawer lateral file cabinet detached from its suspension brackets and fell to the ground, striking her. The cabinet allegedly was manufactured by the defendant Steelcase, Inc. (hereinafter Steelcase) and sold to the injured plaintiff's employer by the defendant D. Waldner Co., Inc. (hereinafter Waldner). The plaintiffs commenced this action against, among others, Steelcase and Waldner, alleging causes of action sounding in negligence, strict products liability, and breach of implied and express warranties. Steelcase and Waldner separately moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied their respective motions and these appeals ensued.

There is nothing in the record from which it can reasonably be inferred that the file cabinet was defective when it left the possession of Steelcase (see James v. Harry Weinstein, Inc., 258 A.D.2d 562; Brown v. Elm Plumbing Supply, 271 A.D.2d 469; Nichols v. Agway, Inc., 280 A.D.2d 889; see generally Rosado v. Proctor Schwartz, 66 N.Y.2d 21, 25).

Nor did the plaintiffs present admissible evidence sufficient to raise a question of fact as to their conclusory and speculative allegations that Waldner negligently installed and/or repaired the allegedly defective cabinet (see Sullivan v. Main Line Elec. Co., 295 A.D.2d 497; Pierre v. City of New York, 273 A.D.2d 368, Krouner v. Travis, 290 A.D.2d 917). A representative from Steelcase stated in a deposition, inter alia, that the drawers were installed and tested prior to shipping, while two of Waldner's employees stated in depositions that Waldner merely delivered the cabinet and placed it at a location specified by the customer. The injured plaintiff also acknowledged that she had used the cabinet, without difficulty, on a daily basis for several years before the accident (cf. Crump v. Times Square Stores, 157 A.D.2d 768). The plaintiffs' reliance upon work orders related to separate cabinets and an invoice for post-accident repairs to the subject cabinet is misplaced (see Angerome v. City of New York, 237 A.D.2d 551; Sosa v. City of New York, 281 A.D.2d 469).

Finally, the Supreme Court correctly held that the doctrine of res ipsa loquitur is inapplicable since the cabinet, which may have been moved when the office was reconfigured, was not in the appellants' exclusive control (see Base v. Otis El. Co., 255 A.D.2d 284).

PRUDENTI, P.J., RITTER, FEUERSTEIN and ADAMS, JJ., concur.


Summaries of

Steinberg v. D. Waldner Co., Inc.

Appellate Division of the Supreme Court of New York, Second Department
May 12, 2003
305 A.D.2d 492 (N.Y. App. Div. 2003)
Case details for

Steinberg v. D. Waldner Co., Inc.

Case Details

Full title:ELLYN STEINBERG, ET AL., respondents, v. D. WALDNER CO., INC., ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 12, 2003

Citations

305 A.D.2d 492 (N.Y. App. Div. 2003)
758 N.Y.S.2d 827

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