GLASS COMPANY'S THIRD-PARTY CLAIM AGAINST BUILDING OWNER FOR ACCIDENT AND INJURY; SUMMARY JUDGMENT GRANTED

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Mercer v. Hellas Glass Works Corp.

Date: Sept. 13, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens injury attorney)

Comment: Plaintiff/accident victim was hurt when wind a door blew open and into another door, shattering the glass in the transom, the top part of the door. Plaintiff sued a glass company that had worked on the moving door. The glass company used a procedural trick that New York law allows. It brought a third-party claim against the building owner.

The glass company's argument was that if it was found liable for the injury to the plaintiff, this was the fault of the building owner, which should then have to repay the glass company. The basis of the glass company's claim against the building owner was that the transom didn't have shatter-proof glass and it should have. The appeals court found that there was no requirement for shatterproof glass and granted the third-part defendant/building owner's motion for summary judgment.

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In an action to recover damages for personal injuries, the third‑party defendant appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated September 11, 2009, as amended by an order of the same court dated October 16, 2009, which denied its motion for summary judgment dismissing the third‑party complaint.

ORDERED that the order dated September 11, 2009, as amended, is reversed, on the law, with costs, and the third‑party defendant's motion for summary judgment dismissing the third‑party complaint is granted.

The plaintiff allegedly was injured while attempting to exit a retail store located in a building owned by the third‑party defendant, AVR-East Massapequa, LLC (hereinafter AVR). The plaintiff testified at his deposition that he was struck by glass when an outer vestibule door (hereinafter the door) was thrown open by wind and struck an adjacent door, causing glass in a transom window above the door to shatter. The plaintiff commenced this personal injury action against Hellas Glass Works Corp. (hereinafter Hellas), alleging that his injuries had been caused by Hellas's negligent repair of the door approximately one week before his accident. Hellas commenced a third‑party action against AVR, seeking indemnification and/or contribution. AVR moved for summary judgment dismissing the third‑party complaint. In opposition, Hellas argued that the transom window glass which had shattered was not safety glazing material (i.e., "safety glass"), in violation of certain provisions of the General Business Law and the New York State Industrial Code, and that AVR's liability for the accident arose from its breach of the duty imposed by those statutory provisions. The Supreme Court denied AVR's motion. We reverse.

An out‑of‑possession landlord's duty to repair a dangerous condition on leased premises is imposed by statute or regulation, by contract, or by a course of conduct (see Rivera v. Nelson Realty, LLC, 7 NY3d 530, 534; Chapman v. Silber, 97 N.Y.2d 9, 19-20; Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 642; Ritto v. Goldberg, 27 N.Y.2d 887, 889; Alnashmi v. Certified Analytical Group, Inc., [decided herewith] ). Here, AVR made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that its failure to install safety glass in the transom window above the door did not constitute a breach of any duty imposed by statute or regulation, contract, or course of conduct (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). In opposition, Hellas failed to raise a triable issue of fact as to whether AVR's failure to install safety glass in the transom window violated a duty imposed by statute or regulation, the only source of duty alleged in its opposition papers (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562). The plain language of the provisions of the General Business Law and the New York State Industrial Code cited by Hellas did not require the installation of safety glass in the transom window above the door (see General Business Law '' 389_m, 389_o; 12 NYCRR 47.5[g]; 12 NYCRR 47.6, 47.11). Accordingly, the Supreme Court should have granted AVR's motion for summary judgment dismissing the third‑party complaint.

In light of the foregoing, we need not reach AVR's remaining contentions.

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