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

898
CA 13-02211
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


LUZ M. HOUSTON, AS ADMINISTRATRIX OF THE ESTATE
OF ROBERT M. HOUSTON, SR., DECEASED,
PLAINTIFF-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MCNEILUS TRUCK AND MANUFACTURING, INC., ET AL.,
DEFENDANTS,
AND H LEASING COMPANY, LLC, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


MARCUS & CINELLI, LLP, WILLIAMSVILLE (DAVID PAUL MARCUS OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (James H.
Dillon, J.), entered December 12, 2013. The order, insofar as
appealed from, denied that part of the motion of defendant H Leasing
Company, LLC, for summary judgment dismissing plaintiff’s negligence
cause of action against it.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Plaintiff commenced this action against various
defendants, seeking damages arising from the death of decedent during
a garbage truck accident. As relevant to this appeal, plaintiff
sought damages for negligence against defendant H Leasing Company, LLC
(H Leasing), which owned the truck and leased it to decedent’s
employer, which was H Leasing’s corporate sibling. H Leasing moved
for summary judgment dismissing the complaint and cross claims against
it and, after initially reserving decision on that part of the motion
with respect to the negligence cause of action, Supreme Court denied
that part of the motion. We affirm.

     As a general matter, a finance lessor such as H Leasing that
never possesses a product due to its direct shipment to the lessee—and
thus has no ability to inspect the product for defects—may not be
liable in negligence for failure to inspect or warn of a dangerous
condition (see Pimm v Graybar Elec. Co., 27 AD2d 309, 311; see also
Gonzalez v Rutherford Corp., 881 F Supp 829, 847). Nevertheless, it
is well settled that a party seeking summary judgment bears “the
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                                                         CA 13-02211

initial burden ‘to make a prima facie showing of entitlement to
judgment as a matter of law by coming forward with competent proof
refuting the allegations of the complaint as amplified by the bill of
particulars’ ” (Reisch v Amadori Constr. Co., 273 AD2d 855, 857; see
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Here, in the
amended complaint as amplified by the bill of particulars, plaintiff
alleged that H Leasing, “by its agents, servants and/or employees,”
was negligent in, inter alia, failing to inspect the garbage truck for
any defects before leasing it; failing to place a warning or notice of
dangerous condition on the garbage truck; failing to inspect the
garbage truck to determine if all mechanical equipment and devices
were safe and functioning properly; and failing to inspect the garbage
truck as to the proper method for using the cable winch (emphasis
added). Thus, to meet its initial burden on the motion, H Leasing was
required to refute, inter alia, the allegation that it was liable in
negligence for its agents’ failure to inspect and warn. We conclude
that H Leasing did not meet that burden.

     “ ‘When faced with a motion for summary judgment, a court’s task
is issue finding rather than issue determination . . . and it must
view the evidence in the light most favorable to the party opposing
the motion, giving that party the benefit of every reasonable
inference and ascertaining whether there exists any triable issue of
fact’ ” (Esposito v Wright, 28 AD3d 1142, 1143; see Sillman v
Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, rearg denied 3 NY2d
941). Here, the lease for the garbage truck, which was submitted in
support of H Leasing’s motion for summary judgment, stated in relevant
part that H Leasing appointed decedent’s employer as its agent for
purposes of inspection and acceptance of the garbage truck from the
supplier. Moreover, a vice-president of H Leasing, who was decedent’s
employer, acknowledged at his deposition, that the lessees inspected
the equipment upon delivery in their capacities as H Leasing’s agents
as “laid out in the lease agreement,” and that deposition testimony
was also submitted in support of H Leasing’s motion. Viewing those
submissions in the light most favorable to plaintiff and affording her
the benefit of every reasonable inference, we conclude that H
Leasing’s own submissions raise a triable issue of fact whether it was
liable in negligence for the failure of one of its agents, decedent’s
employer, to inspect and warn of a dangerous condition. Despite H
Leasing’s contentions that the lessee is appointed the lessor’s agent
solely for purposes of inspecting and accepting delivery of equipment
in order to execute a Certificate of Acceptance and that nothing in
the lease or the record suggests that the garbage truck was inspected
or evaluated for design defects, we conclude that the language of the
lease presents issues of fact with respect to the nature and extent of
the principal-agent relationship regarding the duty to inspect and
warn. Thus, the court properly denied that part of H Leasing’s motion
for summary judgment dismissing the negligence cause of action (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).

     All concur except SMITH, J.P., and LINDLEY, J., who dissent and
vote to reverse the order insofar as appealed from in accordance with
the following Memorandum: We respectfully dissent because we agree
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                                                         CA 13-02211

with defendant H Leasing Company, LLC (H Leasing) that Supreme Court
erred in denying that part of its motion seeking summary judgment
dismissing the negligence cause of action and all related cross claims
against it. We would therefore reverse the order insofar as appealed
from. It is well settled that a defendant that has no ability to
inspect an item for defects may not be held liable for negligently
inspecting, or failing to inspect, the item (see Peris v Western
Regional Off-Track Betting Corp., 255 AD2d 899, 900; Gonzalez v
Rutherford Corp., 881 F Supp 829, 847; Bickram v Case I.H., 712 F Supp
18, 22-23). In support of its motion for summary judgment on this
issue, H Leasing submitted evidence establishing that another
defendant arranged to purchase the item, a garbage truck, directly
from the manufacturer, and that H Leasing never possessed the vehicle.
“[W]e do not perceive how [H Leasing] could be held liable for the
breach of such a duty when, by the purchaser’s own specification, the
. . . product was routed from a reputable manufacturer . . . directly
to the buyer so as to preclude the opportunity for any inspection. By
its selection of the [product, including specifying the manner of its
construction,] and by its request for direct shipment, the purchaser
took from [H Leasing] the power to make any choice in the item
furnished and waived any inspection by it. In these circumstances,
there could be no recovery against [H Leasing] for its failure to
inspect the” truck (Pimm v Graybar Elec. Co., 27 AD2d 309, 311; see
Peris, 255 AD2d at 900; Gonzalez, 881 F Supp at 847). Inasmuch as H
Leasing established as a matter of law that it had no duty or ability
to inspect the truck or warn of any defects in the truck because it
never had the ability to possess or inspect it, it may not be held
liable in negligence.

     Contrary to the majority’s conclusion, the evidence submitted by
H Leasing was sufficient to eliminate all questions of fact (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). Unlike the
majority, we conclude that plaintiff failed to raise in the motion
court her present contention that the truck’s lessee was the agent of
H Leasing and thus that H Leasing may be held liable in negligence
because the contract provided for inspections by that lessee.
Consequently, that contention is not before us on appeal (see
Ciesinski v Town of Aurora, 202 AD2d 984, 985). Plaintiff’s
contention in this Court highlights the reason for the Ciesinski rule,
to wit, “[i]t is well settled that ‘[a]n appellate court should not,
and will not, consider different theories or new questions, if proof
might have been offered to refute or overcome them had those theories
or questions been presented in the court of first instance’ ” (id.;
see Telaro v Telaro, 25 NY2d 433, 439, rearg denied 26 NY2d 751; Rew v
County of Niagara, 115 AD3d 1316, 1317; Ring v Jones, 13 AD3d 1078,
1079). Plaintiff contends for the first time on appeal that H Leasing
failed to eliminate a triable issue of fact whether it had the ability
to inspect the truck, and thus may be held liable under a negligence
theory, because a boilerplate provision in the truck’s lease appoints
the lessee as the agent of H Leasing to inspect the subject truck, “to
the extent [that the truck] has not been previously inspected pursuant
to the Existing Agreement.” By its terms, the lease upon which
plaintiff relies became effective in 2007. Evidence submitted in
support of H Leasing’s motion, however, established that the truck was
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                                                         CA 13-02211

purchased by invoice dated March 23, 2001, and delivery was confirmed
as of May 24, 2001. There is no evidence establishing whether a
similar provision may have existed when the truck was delivered.
Thus, due to plaintiff’s failure to raise her present contention in
the motion court, H Leasing was deprived of the ability to submit
“ ‘proof . . . to refute or overcome’ ” that contention (Ciesinski,
202 AD2d at 985).

     More importantly, due to the date on which the truck was
delivered and the date on which the lease became applicable, there is
no issue of fact that would preclude summary judgment. H Leasing
submitted evidence establishing that it had no ability to inspect the
truck at any time, and there is no lease, purchase order, or other
document indicating that it had designated any other corporate entity
as its agent for inspection purposes at the time of the purchase.
Consequently, the issue of fact upon which the majority relies does
not exist.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
