Inverso v. Whitestone Transit Mix Corp.

30 A.D.2d 565, 290 N.Y.S.2d 953, 1968 N.Y. App. Div. LEXIS 3856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1968
• Status: Published

Opinions

In an action to recover damages for wrongful death, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated February 3, 1967, in favor of defendants, upon the trial court’s dismissal of the complaint at the end of plaintiff’s case upon a jury trial. Judgment reversed, on the law, and new trial granted, with costs to appellant to abide the event. No questions of fact were considered on this appeal. On August 6, 1964, before 8:00 a.m., plaintiff’s intestate (a laborer employed by Lawrence Concrete Corporation) was assisting in loading a truck with stone from twin hoppers, when the hoppers collapsed, causing the stone to strike and bury him under it, as a result of which he sustained fatal injuries. The hoppers had been installed in 1960 by placing the legs of the hoppers on wooden timbers and spiking them down to the timbers. The timbers were not anchored, but merely rested on the ground and not on concrete footings. The hoppers were described by plaintiff’s witnesses as portable and movable. In 1961 defendant Whitestone purchased the real property on which the hoppers in question were located as pant of a ready-mix concrete plant. On July 1, 1964 Whitestone leased the premises, together with the equipment thereon (which included the hoppers), to defendant Hickey for two years for use as a plant for the manufacture, sale and distribution of ready-mix concrete. Hickey was required by the lease to make all repairs to the premises and equipment and to hold Whitestone harmless from damage or liability resulting from any accident on the premises. The premises were leased in an “as is” condition and Hickey represented that he had inspected same prior to the signing of the lease. On August 3, 1964 Hickey assigned the lease to Lawrence Concrete Corporation (of which corporation Hickey was president). Lawrence Concrete assumed all the obligations of the lease, but Hickey was not released from his obligations thereunder. The plant went into operation that day. The accident happened three days later. Plaintiff’s proof was sufficient to enable a jury to find that the hoppers had been improperly and insecurely installed in that the legs of the hoppers were not anchored to concrete foundations by means of bolts and that defendants continued to maintain these hoppers in this patently dangerous and defective condition. In our opinion, plaintiff proved a prima facie case of liability against both defendants on several theories: (1) If the hoppers were in fact personal property, as plaintiff claims and as the testimony indicates, then, since the hoppers were leased as part of a ready-mix concrete plant, both defendants impliedly warranted that the hoppers were fit and suitable for the purpose intended (Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30). The use by plaintiff’s intestate of the hoppers was within the reasonable contemplation of defendants and, therefore, plaintiff was entitled to sue for breach of the implied warranty (Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432; Thomas v. Leary, 15 A D 2d 438). Whether the hoppers were personalty, in which case (as plaintiff claims) there was a warranty of fitness for use, or part of the real property, in which case (as defendants claim) there was no warranty, was a question of fact to be determined by the jury. The test is whether the hoppers were annexed to the realty in such manner as to become an integral and permanent part of the realty or whether they were temporarily installed for the use and convenience of a tenant (Sigrol Realty Corp. v. Valcich, 12 A D 2d 430, affd. 11 N Y 2d 668). (2) Defendant Hickey was under a continuing duty to make repairs under the terms of the lease and was in sufficient control of the premises to fasten liability on him for his negligence, even after the assignment of the lease to the corporation of which he was president. The original lease was made by Whitestone to Hickey in order to have Hickey’s personal liability on the lease. The fact that Hickey thereafter assigned the lease to a corporation of which he was president did not relieve Hickey of his obligations thereunder. Even after the assignment of the lease by Hickey to his corporation, Hickey had the right, in his independent discretion, to enter the premises at any and all times and make repairs upon his own responsibility. He kept and retained a general supervision over the premises. He had the right to come and go upon the leased premises as he pleased for the purpose of inspection and repair and was at liberty to correct any defect as soon as it was found. Therefore, Hickey reserved a privilege of ownership sufficient to give rise to liability in tort (De Clara v. Barber S. S. Lines, 309 N. Y. 620). In any event, Hickey’s liability continued even after the assignment of the lease until the assignee had a reasonable opportunity to make the necessary repairs (Pharm v. Lituchy, 283 N. Y. 130). (3) The evidence is not clear whether the premises were intended for use, or had been used, by a large number of persons who visited the premises as patrons. If such were the case, defendants would be liable to this plaintiff if the hoppers were defective, to the knowledge of defendants, at the time the lease was made (as to Whitestone) and at the time the assignment of the lease was made (as to Hickey), even though they did not create the nuisance (Timlin v. Standard Oil Co., 126 N. Y. 514; Warner v. Lucey, 207 App. Div. 241, affd. 238 N. Y. 638; Campbell v. Holding Co., 251 N. Y. 446). The evidence is sufficient to show prima facie that each defendant knew or should have known, at the said time referable to it or him, of the improper and inadequate installation of the hoppers. The fact that the “premises” were leased by Whitestone to Hickey in an “ as is ” condition does not mean that the equipment on the premises in the nature of personal property was also leased in an “as is” condition. But even if the “as is” provision extended to the equipment as well as to the premises, that covenant in the lease was binding only as between the parties to the lease and may have had the effect of preventing Hickey from claiming over as against Whitestone. However, it had no effect on the liability of defendants to plaintiff. In a death case, the plaintiff is not to be held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence (Noseworthy v. City of New York, 298 N. Y. 76, 80).