DONALD J. TERWILLIGER, ADMINISTRATOR OF THE ESTATE OF DONALD R. TERWILLIGER, DECEASED, PLAINTIFF-RESPONDENT,
BEAZER EAST, INC., THE COMPANY, FORMERLY KNOWN AS KOPPERS COMPANY, INC., ET AL., DEFENDANTS, AND HONEYWELL INTERNATIONAL, INC., SUCCESSOR IN INTEREST TO WILPUTTE COKE OVEN DIVISION OF ALLIED CHEMICAL CORPORATION, DEFENDANT-APPELLANT.
BEACH PLLC, PITTSFORD (A. VINCENT BUZARD OF COUNSEL), FOR
LIPSITZ & PONTERIO, LLC, BUFFALO (DENNIS P. HARLOW OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND
from an order of the Supreme Court, Erie County (Deborah A.
Chimes, J.), dated March 7, 2016. The order denied the motion
of defendant Honeywell International, Inc., successor in
interest to the Wilputte Coke Oven Division of Allied
Chemical Corporation, for summary judgment dismissing the
complaint against it.
hereby ORDERED that the order so appealed from is unanimously
reversed on the law without costs, the motion is granted and
the complaint against defendant Honeywell International,
Inc., successor in interest to Wilputte Coke Oven Division of
Allied Chemical Corporation, is dismissed.
In this products liability and negligence action, plaintiff,
as administrator of the estate of Donald R. Terwilliger
(decedent), seeks damages for injuries sustained by decedent
as a result of his exposure to asbestos and coke oven
emissions while employed at the Bethlehem Steel plant
(Bethlehem) in Lackawanna, New York. Defendant Honeywell
International, Inc. (Honeywell) was sued as the successor in
interest to Wilputte Coke Oven Division of Allied Chemical
Corporation (Wilputte), the designer and builder of five coke
oven batteries, Nos. 5 through 9, at Bethlehem.
moved for summary judgment seeking dismissal of the
complaint, which, as relevant on appeal, alleged products
liability theories in the second and fourth causes of action.
Initially, we note that plaintiff conceded in a postargument
submission that the first, third and sixth causes of action
should be dismissed, and the fifth cause of action is not
asserted against Honeywell. Thus, the only two causes of
action at issue are the second and fourth causes of action.
We further note at the outset that plaintiff does not contend
that Honeywell failed to meet its initial burden, and neither
party contends that there are issues of fact. Thus, we are
presented with a pure question of law on undisputed facts.
support of those parts of its motion for summary judgment
dismissing the second and fourth causes of action, Honeywell
contended that the coke oven batteries are not products for
purposes of products liability theories and that
Wilputte's contract with Bethlehem was one predominantly
for services, not the sale of a product placed into the
stream of commerce. In denying the motion, Supreme Court
rejected those contentions, concluding that the coke ovens
are "products" subject to products liability
theories and that the transaction between Wilputte and
Bethlehem was "more like the sale of goods than a
contract for services." Honeywell appeals, and we
begin our analysis by noting that, in Matter of City of
Lackawanna v State Bd. of Equalization & Assessment of
State of N.Y. (16 N.Y.2d 222, 226-227), the Court of
Appeals concluded, when discussing the nature of these coke
oven batteries, that "[t]here is no doubt that, by
common-law standards, these structures would be deemed real
property. Their magnitude, their mode of physical annexation
to the land and the obvious intention of the owner that such
annexation be permanent would, indeed, compel that
the construction of Battery No. 9 as an example,
Honeywell's submissions established that the construction
of a coke oven battery was a multistage process that took
place over approximately 18 months. The overall construction
of the battery would have taken approximately 1, 460, 000
hours of labor to complete over six phases. Phase One
involved, among other things, the construction of the
foundation and oven deck slab, requiring approximately 15,
000 hours of labor over a 100-day period, and 14, 000 cubic
yards of reinforced concrete and 45, 000 hours involving
operating engineers and trade persons over a 210-day period.
Phase Two was the brick and structural work phase, and
involved the construction of a quench tower and a 300-foot
coal conveyer system, the latter requiring 3, 300 tons of
structural steel and 4, 400 hours involving operating
engineers and ironworkers over a period of 9 to 12 months.
The period of labor for the brick work of Battery No. 9 was
approximately 520, 000 hours over a 180-day period. Phases
Three (involving plumbers, steam fitters and electricians),
Four (involving HVAC installation) and Five (involving
installation of the quench, charging and pusher tracks) would
have, collectively, required 452, 000 hours of labor to
complete. Finally, Phase Six, which involved the construction
of offices, a control room, bathrooms and a locker room,
would have taken 60 to 90 days and 25, 000 to 30, 000 hours
of labor to complete.
light of the foregoing, we conclude that service predominated
the transaction herein and that it was a contract for the
rendition of services, i.e., a work, labor and materials
contract, rather than a contract for the sale of a product
(see Hart v Moray Homes, 158 A.D.2d 890, 891-892;
Ben Constr. Corp. v Ventre, 23 A.D.2d 44, 45;
see generally Perlmutter v Beth David Hosp., 308 NY
100, 104-108, rearg denied 308 NY 812). We further
conclude that a coke oven, installed as part of the
construction of the "great complex of masonry
structures" at Bethlehem (City of Lackawanna,
16 N.Y.2d at 227), permanently affixed to the real property
within a coke oven battery, does not constitute a