been pumped from the reservoir into the hydraulic system. He states that when this occurs, there can be an increased vibration in the pump unit; and if the fluid in the feeder line is low, there can be a mixture of air and fluid in the hydraulic system which would increase the vibration of the pump unit. Dover argues that this alone precludes summary judgment. The court agrees.
The plaintiffs, however, argue that Dr. Drucker's opinion is directly contradicted by the accident report, which states: "Elevator found below bottom landing with forklift on. Found oil line had separated from fitting and pushed power unit back . . . ." Dr. Drucker opines that the line separated because the hydraulic unit vibrated - an opinion not inconsistent with the accident report. The issue to be decided by the trier of fact is whether the hydraulic unit vibrated and moved causing the feeder line to separate, or whether the couplings of the feeder line failed, causing the hydraulic fluid to leak out of the line.
The question of liability then will rest on the Agreement which was in effect at the time of the accident. The Workshop and the plaintiffs argue that regardless of the extent to which the Agreement may or may not impose liability, Dover had a duty to repair and replace these parts in a safe manner, and that the failure to do so would constitute negligence. See St. Vincent's Medical Center v. Vincent E. Iorio, Inc., 78 Misc.2d 968, 970, 358 N.Y.S.2d 993, 995 (Sup. Ct. Richmond Co. 1974). Dover, however, alleges that the Workshop is a "factory" as defined by Section 2(9) of N.Y. Labor Law, and that, therefore, it is the Workshop which has a nondelegable duty to insure that its elevator is maintained and operated so as to be safe for all purposes. N.Y.S. Labor Law §§ 255, 316; Lachowicz v. 34 Beaver Realty, Inc., 1 A.D.2d 738, 146 N.Y.S.2d 920 (3rd Dep't 1955). In addition, Dover claims that pursuant to the Agreement, it did not, and was not obligated to, inspect the elevator as required by N.Y. Comp. Codes R. & Regs. Tit. 12, part 8. Consequently, the cause of the accident will obviously play a significant part in determining which party is responsible for plaintiff's injuries. Dover, therefore, has raised material issues of fact precluding summary judgment.
Dover also argues that the Workshop violated N.Y.S. Industrial Board Regulations regarding elevators, and that these violations are "some evidence of negligence." Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 176 N.E.2d 53, 217 N.Y.S.2d 25 (1961). That is, Dover claims that if the elevator was a "freight" elevator, passengers were not allowed on it except under certain conditions as approved by the Board. If, however, the elevator was for passengers, then the forklift should not have been on the elevator. The Workshop argues that no violation of any state or federal regulation has been shown by Dover, and that even if a violation was proved, it would not relieve Dover from its own negligence in selecting an inadequate replacement part or improperly installing the part. In addition, the Workshop states that it has never been cited by the State of New York Department of Labor or U.S. Occupational Safety and Health Administration for being out of compliance with elevator regulations. Such determinations, however, are not for the court to resolve on a motion for summary judgment.
Finally, plaintiffs argue that in the elevator's thirty-three year history, there was never an accident because the pump unit had moved. In addition, although Dover states that after the accident it had to secure the pump unit to the floor, Robert Lee, an employee of Dover, testified that it was not normal practice to anchor the pump unit to the floor. Also, plaintiffs argue that even if the pump unit should have been anchored to the floor, Dover had many years, upon inspection, to discover that the pump unit was not anchored. Mr. Lee testified that during annual inspections, Dover personnel look at the pump unit itself and actually go in the pump unit area. Again, however, such a resolution is not proper on a summary judgment motion.
Therefore, the court concludes that there exists issues of fact precluding summary judgment in favor of the third-party defendant, Sheltered Workshop for the Disabled, Inc.
Accordingly, it is
ORDERED, that the third-party defendant's motion for summary judgment be and the same is hereby denied.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: April 30, 1993
Utica, New York.
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