
    First Department,
    August, 2010
    (August 3, 2010)
    Christian Altamirano, Appellant, v Door Automation Corp., Respondent.
    [907 NYS2d 164]
   Judgment, Supreme Court, New York County (Debra A. James, J.), entered August 25, 2008, which, following a jury verdict in defendant’s favor, dismissed the complaint, reversed, on the law, without costs, the judgment vacated, the complaint reinstated and the matter remanded for a new trial.

This personal injury action was brought by a security guard at Lincoln Center, who was operating a large motorized door when part of the mechanism for opening the door—a metal arm—broke off and hit him in the head. The defendant, Door Automation Corp. (DAC), had contracted with Lincoln Center to do repairs, and had repaired the door in question 11 times in the year preceding plaintiff’s accident. Apparently, DAC informed Lincoln Center that the doors were being used to push garbage dumpsters—a practice which put undue force on them, and was causing them to repeatedly break. In its initial repair of the door, DAC manufactured an arm and connector for it. DAC did this by copying the existing components. However, while the connector on the existing door was a shear pin (a device designed to break under excess stress), the manual for this type of door required a “Woodruff key,” which would prevent the arm from falling in the event that the connection was broken.

In a prior appeal denying DAC’s summary judgment motion to dismiss as against it, we found issues of fact as to whether DAC’s repairs brought it “within the exception to the rule normally precluding contractual third-party tort liability” (Altamirano v Door Automation Corp., 48 AD3d 308, 309 [2008]).

At the ensuing trial, the court instructed the jury that plaintiff had the burden of proving: “One, that the defendant [DAC], was negligent in performing repair services under its contract with Lincoln Center and that such negligence launched a force or instrument of harm; and, two, that the force or instrument of harm that was launched was a substantial factor in causing plaintiffs injury.” The charge repeated the phrase “launched a force or instrument of harm” several times, despite the fact that this language is a quotation from Mock Co. v Rensselaer Water Co. (247 NY 160, 168 [1928]), a case addressing the appropriate breadth of the zone of tort liability for third-party contractor defendants. On this appeal, plaintiff contends that by repeating the “launched a force or instrument of harm” language throughout its charge, the court confused and misled the jury, precluding its fair consideration of the facts. We agree.

The court is required to clearly define for the jury what it must find in order to determine whether there was negligence (see Green v Downs, 27 NY2d 205 [1970]). A charge must be precise, specifically related to the claim of liability, and it must state and outline separately the disputed issues of fact as the nature of the case and the evidence require (id. at 208-209). Here the court’s instructions did not concisely explain, in fact-specific terms, what the jury needed to find in order to determine DAC’s liability for alleged negligent repair work. Instead, it was both misleading and confusing, because the charge included instructions regarding third-party contractors’ tort liability. Because the error precluded the jury’s fair interpretation of the evidence, we remand for a new trial (Ortiz v Kinoshita & Co., 30 AD2d 334, 337 [1968]; Placakis v City of New York, 289 AD2d 551, 552 [2001]). Concur—Gonzalez, P.J., Mazzarelli and Acosta, JJ.

Nardelli and Abdus-Salaam, JJ.,

dissent in a memorandum by Nardelli, J., as follows: Inasmuch as I believe that the court’s charge was not confusing and that it did not include extraneous information about tort liability of third-party contractors, I would affirm.

In this Court’s prior decision (Altamirano v Door Automation Corp., 48 AD3d 308 [2008]), it was stated, “Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law because there are factual issues as to whether defendant’s repair of the door created an unreasonable risk of harm to others” (id. at 308). The appeal was from a denial of defendant’s motion for summary judgment. The record in the prior appeal shows that the motion court had found that there were issues of fact as to whether the repair of the door created an unreasonable risk of harm and this court agreed there were issues of fact precluding the grant of the motion. On a motion for summary judgment, “ ‘issue-finding, rather than issue-determination, is the key to the procedure’ ” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], quoting Esteve v Abad, 271 App Div 725, 727 [1947]). “If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment” (Esteve at 727).

Thus, since this Court denied the motion for summary judgment with a finding that there were factual issues, its inquiry was over. Any other observations made in the decision were, at best, explanations in support of its holding that issues of fact were presented, or, at worst, dicta, that contradict this holding.

Nevertheless, at trial, plaintiff erroneously sought to rely on the dicta when he made his requests to charge. For instance, during colloquy with the court at the charge conference, counsel stated, “[B]ecause what the law is, and what was found by the Appellate Division, is that [it] had a duty.” This Court made no such finding as between plaintiff and defendant.

Plaintiff alluded to this Court’s prior decision on several occasions during the colloquy, all the while misinterpreting the import of the decision. At one point counsel said, “[T]hey’re saying there’s a question of fact as to the first [whether defendant’s repair of the door created an unreasonable risk of harm to others], and they’re saying there’s no question of fact as to the second [whether a force or instrument of harm was launched].”

When asked by the court what charge should be offered, counsel said, “I would say that the alternative charge could be that, in undertaking to repair the door, [defendant] had a duty to not create an unreasonable risk of harm.” It is thus evident that the entire premise of plaintiff’s objections to the charge, and his own request, was that it had already been determined that, as a matter of law, defendant owed plaintiff a duty. In essence, plaintiff sought a directed verdict—i.e., a ruling that defendant had launched a dangerous instrument, and left for the jury only the virtually academic question of whether the launching of the dangerous instrument created an unreasonable risk of harm.

In pertinent part, the charge stated:

“Under that contract, the defendant performed repairs to the doors on the garage room belonging to Lincoln Center, and that was on an on-call basis. Now, you heard how defendant Door Automation Corporation would be responsible only to Lincoln Center, the entity with whom it had a contract, and would not be responsible—would have no duty, that is—to the plaintiff, Christian Altamirano, who’s not a party to the contract.
“However, jurors there are three exceptions to that rule; that is, three situations in which a party entering into a contract to render services to another may be liable to third parties. Now, jurors, I will instruct you, happily, only with respect to one of the three exceptions, as the other two are not applicable here.
“Now, that exception that constitutes the law applicable to this case is that a contracting party may be liable in negligence to third parties—that is, again, someone who’s not a party to the contract—where the contracting party, in failing to exercise reasonable care in performing work under that contract, launches a force or instrument of harm that injuries a third person.
“So, in order to recover, jurors, plaintiff Christian Altamirano has the burden of proving: [o]ne, that the defendant, Door Automation Corporation, was negligent in performing repair services under its contract with Lincoln Center and that such negligence launched a force or instrument of harm; and two, that the force or instrument of harm that was launched was a substantial factor in causing plaintiffs injury.
“So, jurors, you must first consider whether defendant Door Automation Corporation was negligent in performing the repair services under the contract that thereby launched a force or instrument of harm.
“If you find that the defendant Door Automation Corporation was negligent in performing the repair services under the contract and thereby launched a force or instrument of harm, you must then consider whether such force or instrument of harm was a substantial factor in bringing about injury to the plaintiff.”

This charge accurately tracked the law with regard to when a third-party contractor may have tort liability (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]), and explained to the jurors the circumstances under which they could find applicable the exception to the general proscription against liability for such contractors. Nothing in the charge was incorrect or confusing—defendant could only be liable to plaintiff if the jury found that it had “launched a force or instrument of harm.”

Consequently, since the charge was clear and accurate, as given, I would affirm.  