        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

305
CA 15-01554
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


ANGELA ROSS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ALEXANDER MITCHELL AND SON, INC., BASIC
INSTALLATIONS, INC., AND THE MILLS COMPANY,
A SUBSIDIARY OF BRADLEY CORPORATION,
DEFENDANTS-APPELLANTS-RESPONDENTS.
---------------------------------------------
ALEXANDER MITCHELL AND SON, INC., THIRD-PARTY
PLAINTIFF-APPELLANT,

                    V

BASIC INSTALLATIONS, INC., AND THE MILLS
COMPANY, A SUBSIDIARY OF BRADLEY CORPORATION,
THIRD-PARTY DEFENDANTS-RESPONDENTS.


GOERGEN, MANSON & MCCARTHY, BUFFALO (KELLY J. PHILIPS OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT ALEXANDER MITCHELL AND SON, INC. AND
THIRD-PARTY PLAINTIFF-APPELLANT.

SANTACROSE & FRARY, ALBANY (KEITH M. FRARY OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT AND THIRD-PARTY DEFENDANT-RESPONDENT
BASIC INSTALLATIONS, INC.

SUGARMAN LAW FIRM LLP, SYRACUSE (KATHLEEN C. SASSANI OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT AND THIRD-PARTY DEFENDANT-RESPONDENT
THE MILLS COMPANY, A SUBSIDIARY OF BRADLEY CORPORATION.

STANLEY LAW OFFICE, SYRACUSE (JON COOPER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Onondaga County
(Donald A. Greenwood, J.), entered November 26, 2014 in a personal
injury action. The order, among other things, denied defendants’
motions for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motions of defendant-
third-party plaintiff and defendant-third-party defendant The Mills
Company, a Subsidiary of Bradley Corporation, in part and dismissing
the claims and cross claims alleging strict products liability based
on a manufacturing defect against them, and as modified the order is
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                                                         CA 15-01554

affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when a bathroom stall door in the
women’s bathroom at her place of employment fell and struck her. The
accident occurred approximately four months after new bathroom stalls
were installed as part of a bathroom renovation project undertaken by
plaintiff’s employer. The bathroom stalls, including the doors and
related hardware, were manufactured by defendant-third-party defendant
The Mills Company, a Subsidiary of Bradley Corporation (Mills). The
general contractor for the renovation project hired defendant-third-
party plaintiff Alexander Mitchell and Son, Inc. (Mitchell) to provide
the materials for the bathroom stalls and to perform the installation.
Mitchell subcontracted the installation work to defendant-third-party
defendant Basic Installations, Inc. (Basic). Following plaintiff’s
accident, Mitchell stored the door in its garage, where it remained
for a period of up to six months, after which it inexplicably
disappeared.

     Mills, Mitchell and Basic appeal from an order that denied their
respective motions seeking, inter alia, summary judgment dismissing
the amended complaint and cross claims against them. We conclude that
Supreme Court properly denied that part of the motion of Mills seeking
summary judgment dismissing plaintiff’s claims that Mills breached
express and implied warranties of merchantability and fitness for use.
We reject the contention of Mills that, absent privity, it cannot be
liable to plaintiff for breach of warranty. “Privity is not required
in a personal injury action for breach of express or implied warranty”
(Cereo v Takigawa Kogyo Co., 252 AD2d 963, 964).

     The court also properly denied those parts of the motions of
Mills and Mitchell seeking summary judgment dismissing plaintiff’s
strict products liability claims against them to the extent that those
claims are based upon an alleged design defect. Mills and Mitchell
met their initial burdens by presenting evidence that the bathroom
stall door complied with applicable industry standards (see Wesp v
Carl Zeiss, Inc., 11 AD3d 965, 967). In response, however, plaintiff
submitted evidence that the door and hinges were “not reasonably safe
and that it was feasible to design the product in a safer manner,”
thereby raising triable issues of fact (Banks v Makita, U.S.A., 226
AD2d 659, 661, lv denied 89 NY2d 805).

     We reach a different conclusion with respect to plaintiff’s
strict products liability claims against Mills and Mitchell to the
extent that they are based upon an alleged manufacturing defect.
Mills and Mitchell met their initial burdens by submitting evidence
that the stall door and hinges were “manufactured under state of the
art conditions according to [Mills’s] specifications and that its
manufacturing process complied with applicable industry standards.
The evidence further demonstrated that each [door and hinge] was
individually tested before leaving [Mills’s] plant and that[,] in
light of such testing and inspection,” the door and hinges would have
conformed to Mills’s specifications when they left the plant (Ramos v
Howard Indus., Inc., 10 NY3d 218, 223-224). In response, plaintiff
                                 -3-                           305
                                                         CA 15-01554

failed to raise a triable issue of fact. We therefore modify the
order by granting those parts of the motions of Mills and Mitchell
seeking summary judgment dismissing the strict products liability
claims and cross claims based on a manufacturing defect against them.

     The court properly denied that part of the motion of Mitchell
seeking summary judgment dismissing the negligence claim against it.
Mitchell failed to establish as a matter of law that it had no duty to
inspect or supervise the installation work, or that it was not
negligent in performing such inspection or supervision (see Troll v
Schoonmaker Bros., 34 AD2d 1030, 1030-1031). It is well established
that “a party does not carry its burden in moving for summary judgment
by pointing to gaps in its opponent’s proof” (George Larkin Trucking
Co. v Lisbon Tire Mart, 185 AD2d 614, 615).

     In any event, we agree with plaintiff that, as an alternative
basis for affirmance (see Town of Massena v Niagara Mohawk Power
Corp., 45 NY2d 482, 488), Mitchell’s loss or destruction of the door
further supports the denial of that part of Mitchell’s motion seeking
summary judgment dismissing plaintiff’s negligence claim against it
(see Simmons v Pierce, 39 AD3d 1252, 1253). The court also properly
denied that part of Mitchell’s motion seeking conditional
indemnification from Mills inasmuch as Mitchell failed to establish as
a matter of law that it was not negligent (see Cook v Orchard Park
Estates, Inc., 73 AD3d 1263, 1266), and in view of the fact that
Mills’s inability to inspect the door prejudiced it in opposing that
part of Mitchell’s motion (see Scherer v North Shore Car Wash Corp.,
32 AD3d 426, 428).

     The court properly denied Basic’s motion inasmuch as Basic failed
to establish as a matter of law that it did not “ ‘launch[ ] a force
or instrument of harm’ ” by negligently performing its installation
work (Espinal v Melville Snow Contrs., 98 NY2d 136, 140; see Bharat v
RPI Indus., Inc., 100 AD3d 491, 491). Finally, we reject Basic’s
contention that it is entitled to dismissal of the amended complaint
against it based upon Mitchell’s loss or destruction of the door (see
generally Denn v Hardwick, 97 AD3d 629, 630; Matter of Landrigen v
Landrigen, 173 AD2d 1011, 1012).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
