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

1065
CA 13-02002
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


DREW M. VEROST AND KIMBERLY VEROST,
PLAINTIFFS-APPELLANTS,

                     V                             MEMORANDUM AND ORDER

MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC.,
NUTTALL GEAR, LLC, NUTTALL GEAR CORPORATION,
DELROYD WORM GEAR, ALTRA HOLDINGS, INC., ALTRA
INDUSTRIAL MOTION, INC., BUFFALO LIFT TRUCKS, INC.,
MULLEN INDUSTRIAL HANDLING CORP.,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


THE CAREY FIRM, LLC, GRAND ISLAND, MAXWELL MURPHY, LLC, BUFFALO (ALAN
D. VOOS OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ROBERT E. SCOTT OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS NUTTALL GEAR, LLC, NUTTALL GEAR
CORPORATION, DELROYD WORM GEAR, ALTRA HOLDINGS, INC., AND ALTRA
INDUSTRIAL MOTION, INC.

OSBORN, REED & BURKE, LLP, ROCHESTER (AIMEE LAFEVER KOCH OF COUNSEL),
FOR DEFENDANT-RESPONDENT BUFFALO LIFT TRUCKS, INC.

GOLDBERG SEGALLA LLP, BUFFALO (DENNIS P. GLASCOTT OF COUNSEL), FOR
DEFENDANT-RESPONDENT MULLEN INDUSTRIAL HANDLING CORP.

MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (EDWARD P. PERLMAN OF
COUNSEL), AND WHYTE HIRSCHBOECK DUDEK S.C., MILWAUKEE, WISCONSIN, FOR
DEFENDANT-RESPONDENT MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC.


     Appeal from an order of the Supreme Court, Niagara County (Ralph
A. Boniello, III, J.), entered August 13, 2013. The order granted the
motions of defendants-respondents for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion of defendants
Nuttall Gear, LLC, Nuttall Gear Corporation, Delroyd Worm Gear, Altra
Holdings, Inc., and Altra Industrial Motion, Inc. and reinstating the
complaint against them, and as modified the order is affirmed without
costs.

     Memorandum:   Drew M. VeRost (plaintiff) and his wife commenced
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                                                         CA 13-02002

this action seeking damages for injuries he sustained while operating
a forklift at a manufacturing facility owned by defendant Nuttall
Gear, LLC (Nuttall Gear). Plaintiff had been assigned to work there
by SPS Temporaries, Inc. (SPS), a temporary employment agency, and the
accident occurred when plaintiff climbed out of the seat of the
forklift and attempted to engage a lever on the mast of the forklift.
While standing on the front of the forklift and reaching for the lever
with his hand, plaintiff inadvertently stepped on a gear shift near
the steering wheel. The activated gear shift caused the mast of the
forklift to move backward, pinning plaintiff between the mast and the
forklift’s metal roll cage and injuring him in the process.

     The forklift in question was manufactured by defendant Mitsubishi
Caterpillar Forklift America, Inc. (MCFA), and sold new to Nuttall
Gear by defendants Buffalo Lift Trucks, Inc. (Buffalo Lift) and Mullen
Industrial Handling Corp. (Mullen). The forklift as manufactured was
equipped with a seat safety switch that would render the forklift
inoperable if the operator was not in the driver’s seat. At the time
of the accident, however, someone had intentionally disabled the
safety switch by installing a “jumper wire” under the seat of the
forklift. As a result, the forklift still had power when the operator
was not in the driver’s seat. Of the 10 forklifts owned by Nuttall
Gear, seven had “jumper wires” installed that disabled the safety
switches.

     The complaint asserts causes of action against MCFA, Buffalo Lift
and Mullen sounding in strict products liability, alleging, inter
alia, that the forklift was defectively designed and that those
defendants failed to provide adequate “warnings for the safe
operation, maintenance repair and servicing of the forklift.” The
complaint also alleged that Nuttall Gear and its related entities,
defendants Nuttall Gear Corporation, Delroyd Worm Gear, Altra
Holdings, Inc., and Altra Industrial Motion, Inc. (collectively,
Nuttall Gear defendants) were negligent in, among other things,
failing to maintain the forklift in a safe condition. Following
discovery, the strict products liability defendants (MCFA, Buffalo
Lift and Mullen) each moved for summary judgment dismissing the
complaint against them, contending that the forklift was safe when it
was manufactured and delivered to Nuttall Gear, and that it was
thereafter rendered unsafe by a third party who deactivated the safety
switch. The Nuttall Gear defendants also moved for summary judgment,
asserting that plaintiff was Nuttall Gear’s special employee and is
thus barred by Workers’ Compensation Law § 11 from suing them.
Supreme Court granted the motions and dismissed the complaint in its
entirety, and this appeal ensued.

     We conclude that the court properly granted the motions of the
products liability defendants. As the Court of Appeals has recently
made clear, “ ‘a manufacturer, who has designed and produced a safe
product, will not be liable for injuries resulting from substantial
alterations or modifications of the product by a third party which
render the product defective or otherwise unsafe’ ” (Hoover v New
Holland N. Am., Inc., 23 NY3d 41, 54). Here, the products liability
defendants established as a matter of law that the forklift was not
                                 -3-                          1065
                                                         CA 13-02002

defectively designed by establishing that, when it was manufactured
and delivered to Nuttall Gear, it had a safety switch that would have
prevented plaintiff’s accident, and a third party thereafter made a
substantial modification to the forklift by disabling the safety
switch. The burden thus shifted to plaintiffs to raise an issue of
fact, and they failed to meet that burden (see generally Zuckerman v
City of New York, 49 NY2d 557, 562). Contrary to plaintiffs’
contention, the affidavit of their expert, a professional engineer,
does not raise a triable issue of fact.

     We agree with plaintiffs, however, that the court erred in
granting the motion of the Nuttall Gear defendants for summary
judgment dismissing the complaint against them, and we therefore
modify the order accordingly. It is well settled that “a general
employee of one employer may also be in the special employ of another,
notwithstanding the general employer’s responsibility for payment of
wages and for maintaining workers’ compensation and other employee
benefits” (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557). “A
special employee is described as one who is transferred for a limited
time of whatever duration to the service of another . . . General
employment is presumed to continue, but this presumption is overcome
upon clear demonstration of surrender of control by the general
employer and assumption of control by the special employer” (id.; see
Abreu v Wel-Made Enters., Inc., 105 AD3d 878, 879). Although the
determination of special employment status is “usually a question of
fact,” such a determination “may be made as a matter of law where the
particular, undisputed critical facts compel that conclusion and
present no triable issue of fact” (Thompson, 78 NY2d at 557-558; see
Bounds v State of New York, 24 AD3d 1212, 1213-1214; Short v Durez
Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 972).

     Here, in support of their motion, the Nuttall Gear defendants
relied on an affidavit from an accountant who works in Nuttall Gear’s
human resources department. Although the accountant stated that
Nuttall Gear supervised plaintiff and controlled his work, she did not
identify any specific Nuttall Gear employees who did so, nor did she
state her basis of knowledge. In fact, there is no indication in the
record that the accountant ever witnessed plaintiff working or
observed anyone directing or supervising him, and it is well settled
that an affidavit is without evidentiary value if the affiant has no
personal knowledge of the facts asserted therein (see King’s Ct.
Rest., Inc. v Hurondel I, Inc., 87 AD3d 1361, 1363).

     In any event, even assuming, arguendo, that the Nuttall Gear
defendants met their initial burden of establishing as a matter of law
that plaintiff was a special employee, we conclude that plaintiffs
raised an issue of fact by submitting an affidavit from SPS’s
president, who stated that SPS never relinquished control or
supervision of plaintiff to Nuttall Gear or anyone else. According to
SPS’s president, its temporary employees are required to check in with
SPS at least one hour before showing up for work, and SPS retains the
exclusive authority to discipline those employees. Plaintiffs also
submitted the deposition testimony of two Nuttall Gear supervisors who
were working at the facility with plaintiff at the time of the
                                 -4-                          1065
                                                         CA 13-02002

accident, both of whom testified that they had no contact with
plaintiff. It appears from the record that the only person who had
contact with plaintiff at Nuttall Gear was Mark Moscato, who himself
was a general employee of SPS. The Nuttall Gear defendants have not
identified a single person, other than Moscato, who told plaintiff
what to do or how to do it.

      The motion court’s reliance on Thompson (78 NY2d 553) was
misplaced. In Thompson, the plaintiff worked for the defendant for
approximately one year, and reported daily to one of defendant’s
supervisors, “who assigned, supervised, instructed, oversaw, monitored
and directed his work duties on a daily basis” (id. at 556). Here, in
contrast, plaintiff worked at Nuttall Gear for only 9.5 hours, and
there is no evidence that he had any contact with a Nuttall Gear
supervisor. The other cases cited by the motion court — Rucci v
Cooper Indus. (300 AD2d 1078) and Davis v Butler (262 AD2d 1039) — are
similarly distinguishable. For example, in Rucci, the record on
appeal shows that the plaintiff admitted that he reported daily to the
superintendent of defendant Lehigh Construction Group, Inc. (Lehigh)
and received his work assignments from the superintendent. The
plaintiff also admitted that Lehigh controlled his work. There are no
such admissions from plaintiff in this case. We thus conclude that an
issue of fact exists whether plaintiff was a special employee of
Nuttall Gear (see e.g. Lee v ServiceMaster Co., 37 AD3d 1163, 1164-
1165; Evans v P.C.I. Paper Conversions, Inc., 32 AD3d 1310, 1310-1311;
Bounds, 24 AD3d at 1213-1214; cf. Majewicz v Malecki, 9 AD3d 860,
861).




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