Smith v. Man Ho Rope Manufacturing Co.

233 A.D.2d 942, 649 N.Y.S.2d 880, 1996 N.Y. App. Div. LEXIS 13501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1996
• Status: Published

Opinion

Order unanimously affirmed with costs. Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained while unloading grain at a grain elevator owned by his employer, third-party defendant, Con Agra, Inc. (Con Agra). His injuries were sustained when the cable snapped on a car puller, a device used to move rail cars along the tracks adjacent to the elevator. Defendant T. H. Green Electrical Co., Inc. (Green), was hired by Con Agra to repair the car puller’s electric motor on four occasions in the two months preceding plaintiff’s accident. Plaintiff alleges that Green’s negligence in performing those repairs caused the failure of the car puller, which produced his injuries. Green moved for summary judgment to dismiss the complaint and cross claims against it.

Supreme Court properly denied Green’s motion. In repairing the car puller, Green owed a duty to exercise reasonable care and diligence (see, Wagner v Kenific, 161 AD2d 1092, 1093; Galarza v Pacific Steel Boiler Corp., 147 AD2d 527, 529; PJI 2:127 [1996 Supp]). Although Green met its initial burden, plaintiff in response presented expert proof that Green departed from accepted standards of electrical repair and that the accident resulted from that departure. That proof was sufficient to raise triable issues of fact with respect to Green’s negligence and the proximate cause of the accident (see, Wagner v Kenific, supra, at 1093-1094). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Summary Judgment.) Present—Denman, P. J., Green, Wesley and Boehm, JJ.