Rosa v. Clarklift

269 A.D.2d 266, 703 N.Y.S.2d 122, 2000 N.Y. App. Div. LEXIS 1564

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Lottie Wilkins, J.), entered July 10, 1998, which granted the motion of defendant Mid Hudson Clarklift for summary judgment dismissing the complaint, and granted the cross motion by third-party defendant Hillside Bedding Company for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

In the absence of evidence of a routine or systematic maintenance contract between defendant, an independent repairer/ contractor, and plaintiffs employer, third-party defendant Hillside, plaintiff has failed to establish that defendant had any duty to install the safety devices at issue, or to inspect, or to warn plaintiffs employer of any purported defect (see, Giustino v Hollymatic Corp., 202 AD2d 161). It follows that there exists no basis to find such a duty running from defendant to plaintiff. Nor do we perceive sufficient basis for plaintiffs claim that defendant abused the discovery process and/or withheld evidence. Concur — Rosenberger, J. P., Nardelli, Mazzarelli, Wallach and Rubin, JJ.