
    [711 NYS2d 290]
    Margaret Nugent, Plaintiff, v Pro-Tek Maintenance System, Inc., Defendant and Third-Party Plaintiff-Respondent. Butcher Polish Co. et al., Third-Party Defendants, and Waldbaum Supermarkets, Inc., Third-Party Defendant-Appellant.
    Supreme Court, Appellate Term, First Department,
    May 9, 2000
    APPEARANCES OF COUNSEL
    
      Boeggeman, George, Hodges & Corde, P. C., White Plains (<Jeanne M. Hurley and George S. Hodges of counsel), for third-party defendant-appellant. Gladstein & Isaac, New York City 
      {Robert L. Boydstun and Brian J. Isaac of counsel), for defendant and third-party plaintiff-respondent.
   OPINION OF THE COURT

Per Curiam.

Order entered December 23, 1998 insofar as appealed from reversed, with $10 costs, and the third-party defendant’s cross motion for summary judgment is granted. The clerk is directed to enter judgment in favor of third-party defendant dismissing the third-party complaint.

The underlying negligence action stems from allegations that plaintiff, while employed as a “front-end” supervisory cashier at a Waldbaum supermarket, became ill upon being exposed to “toxic” fumes from a floor cleaning compound identified in the record as “Speed Track”. Plaintiff alleges that at the time of the occurrence — approximately 2:00 a.m. on April 8, 1988 — she was standing about three or four feet away from two employees of defendant and third-party plaintiff Pro-Tek Maintenance System, Inc. (Pro-Tek), who were in the process of mixing the Speed Track solvent with another (unidentified) liquid. Plaintiff claims that she developed an “instant headache” when she was “hit” by and inhaled fumes from the chemical admixture, which produced a “very strong,” “chemical smelling” odor similar to that of ammonia.

Pro-Tek denied liability for plaintiff’s injuries, and impleaded both the manufacturer and distributor of Speed Track (parties not involved on this appeal), as well as the owner and operator of the store premises, third-party defendant-appellant Waldbaum Supermarkets, Inc. In its third-party action against Waldbaum, Pro-Tek alleged variously that Waldbaum failed to provide plaintiff with a safe place to work; failed to close the supermarket premises “so that [Pro-Tek] could provide * * * janitorial services;” failed to properly ventilate the store premises; and, finally, that Waldbaum itself created “noxious and unwholesome fumes” within the premises. This last allegation apparently was bottomed on Pro-Tek’s claim that Waldbaum failed to timely or properly clean a “large spill” of “laundry detergent and ammonia” observed in one of the supermarket aisles approximately 75 feet away from the area in which plaintiff was stationed, as early as 10:30 p.m. on April 7, 1988, or roughly 3V2 hours before plaintiff became ill.

No basis is shown on the voluminous record presented on appeal to impose liability in the third-party action upon Waldbaum. “Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner pursuant to the common law or section 200 of the Labor Law.” (Dilena v Reisman Irrevocable Trust, 263 AD2d 375, 376.) There is no indication in this record, either in the numerous deposition transcripts submitted or otherwise, that Waldbaum had any supervisory control over Pro-Tek’s selection or use of the Speed Track cleaning agent alleged to have caused the plaintiffs injuries. Nor are genuine triable issues raised by Pro-Tek’s unsupported, conclusory allegations that the store premises was inadequately ventilated, or by its speculative assertion that the real cause of plaintiffs injuries was the vaguely described detergent spill seen elsewhere in the supermarket — a condition remote in time and location to the rapidly developing adverse reaction experienced by plaintiff. Only a genuine issue will defeat summary judgment. “ ‘A shadowy semblance of an issue’ ” will not suffice (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341, quoting Hanrog Distrib. Corp. v Hanioti, 10 Misc 2d 659, 660).

The dissent takes the position that there is a factual issue as to “the source of the fumes.” The plaintiff testified at deposition that she had an immediate reaction to the “chemical smell” when the cleaners mixed the two chemicals three or four feet away, that she left the area and when she returned the “Fumes were still in there, contained in that area. I started coughing, tearing, my throat felt like it was tightening up.” (Record on appeal, at 247.)

It is sheer speculation to argue that an alleged ammonia spill 75 feet away caused plaintiffs condition, particularly when the condition recurred when she returned to the area of the fumes caused by the cleaners. Even assuming that Pro-Tek could establish notice of the alleged ammonia which might come from a container which fell from a store shelf, it is unexplained how a common household product would suddenly cause such a reaction from 75 feet away to the plaintiff and not to other employees, and why it recurred at the accident site when the plaintiff returned. The instantaneous reaction of the plaintiff to the cleaners mixing the commercial cleaning substance at most four feet away and her seeing the fumes rules out any other cause as a matter of law and common experience.

The theory of plaintiffs case is that only Pro-Tek caused her condition. Pro-Tek can be relieved of liability at the trial by proving that it was the ammonia spill and. not its chemicals that caused the plaintiffs reaction. Stated differently, if plaintiff proves its case against Pro-Tek there could be no claim over. If plaintiff cannot prove its case against Pro-Tek the same result would follow.

Davis, J.

(dissenting). I respectfully dissent. The majority ignores the central guideline governing summary judgment, that “ ‘issue-finding, rather than issue-determination is the key to the procedure’ ” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).

The majority summarily determines that the large ammonia/ detergent spillage, left unattended by Waldbaum for several hours, could not have been a cause of plaintiffs injury. The court reasons that this spillage of a “common household product” was “remote in time and location” to plaintiffs reaction, which only occurred when she was near the Speed Track. In making this determination, the majority exceeds its role by discounting relevant conflicting facts (see, Nestlerode v Federal Ins. Co., 66 AD2d 504, 508). Contrary to the majority’s assertion, a triable issue of fact is raised as to whether this spillage was a cause of plaintiffs injury.

The evidence in the record establishes that the detergent/ ammonia spillage existed at least 30 minutes prior to the time plaintiff began her shift and was not cleaned until she left the store by ambulance several hours later. Plaintiff testified that the odor she detected prior to her reaction resembled ammonia and that this odor was different from that which she usually associated with Pro-Tek’s work. A witness testified that an ammonia and detergent mixture could emit a toxic vapor. In contrast, Speed Track contained no toxic chemicals and its manufacturer testified that it received no prior complaints about this compound. Furthermore, while the majority stresses that plaintiffs reaction occurred in proximity to the Speed Track, and approximately 75 feet from the spillage, the majority fails to note that plaintiff suffered from asthma, was allergic to cleansers, and that her physician testified that as her illness progressed over the years preceding this incident, it took “less and less of the allergens” to trigger a reaction.

It has been repeatedly held that the remedy of summary judgment is a drastic one, which should not be granted where there is any doubt as to the existence of a triable issue, or where the issue is even arguable, since it serves to deprive a party of his day in court (Gibson v American Export Isbrandt sen Lines, 125 AD2d 65, 74). Drawing all reasonable inferences in favor of the nonmoving party (Robinson v Strong Mem. Hosp., 98 AD2d 976), relief should only be granted where no genuine, triable issue of fact exists (Gibson v American Export Isbrandtsen Lines, supra). Viewed in this framework, Civil Court properly denied Waldbaum’s motion for summary judgment.

Finally, contrary to the majority’s assertion, it is irrelevant that the theory of plaintiffs case is that only the actions of ProTek caused her injury. Under the liberal construction of impleader practice urged by the Court of Appeals (Cohen Agency v Perlman Agency, 51 NY2d 358), impleader is proper since a jury may find that plaintiffs injury was caused by the negligence of both Pro-Tek and Waldbaum, and that Waldbaum might be liable over to Pro-Tek for a part of plaintiffs claim against Pro-Tek (CPLR 1007).

Parness, P. J., and McCooe, J., concur; Davis, J., dissents in a separate memorandum.  