SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1065 

CA 13-02002 

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. 

 

DREW M. VEROST AND KIMBERLY VEROST, 

PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC., 

NUTTALL GEAR, LLC, NUTTALL GEAR CORPORATION, 

DELROYD WORM GEAR, ALTRA HOLDINGS, INC., ALTRA 

INDUSTRIAL MOTION, INC., BUFFALO LIFT TRUCKS, INC., 

MULLEN INDUSTRIAL HANDLING CORP., 

DEFENDANTS-RESPONDENTS, 

ET AL., DEFENDANTS. 

 

THE CAREY FIRM, LLC, GRAND ISLAND, MAXWELL MURPHY, LLC, BUFFALO (ALAN

D. VOOS OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (ROBERT E. SCOTT OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS NUTTALL GEAR, LLC, NUTTALL GEAR

CORPORATION, DELROYD WORM GEAR, ALTRA HOLDINGS, INC., AND ALTRA 

INDUSTRIAL MOTION, INC. 

OSBORN, REED & BURKE, LLP, ROCHESTER (AIMEE LAFEVER KOCH OF COUNSEL),

FOR DEFENDANT-RESPONDENT BUFFALO LIFT TRUCKS, INC. 

GOLDBERG SEGALLA LLP, BUFFALO (DENNIS P. GLASCOTT OF COUNSEL), FOR

DEFENDANT-RESPONDENT MULLEN INDUSTRIAL HANDLING CORP. 

MAGAVERN MAGAVERN GRIMM LLP, NIAGARA FALLS (EDWARD P. PERLMAN OF

COUNSEL), AND WHYTE HIRSCHBOECK DUDEK S.C., MILWAUKEE, WISCONSIN, FOR

DEFENDANT-RESPONDENT MITSUBISHI CATERPILLAR FORKLIFT AMERICA, INC. 

 

Appeal from an order of the Supreme Court, Niagara County (Ralph

A. Boniello, III, J.), entered August 13, 2013. The order granted the

motions of defendants-respondents for summary judgment dismissing the

complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the motion of defendants

Nuttall Gear, LLC, Nuttall Gear Corporation, Delroyd Worm Gear, Altra

Holdings, Inc., and Altra Industrial Motion, Inc. and reinstating the

complaint against them, and as modified the order is affirmed without

costs. 

Memorandum: Drew M. VeRost (plaintiff) and his wife commenced
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CA 13-02002 

this action seeking damages for injuries he sustained while operating

a forklift at a manufacturing facility owned by defendant Nuttall

Gear, LLC (Nuttall Gear). Plaintiff had been assigned to work there

by SPS Temporaries, Inc. (SPS), a temporary employment agency, and the

accident occurred when plaintiff climbed out of the seat of the

forklift and attempted to engage a lever on the mast of the forklift. 

While standing on the front of the forklift and reaching for the lever

with his hand, plaintiff inadvertently stepped on a gear shift near

the steering wheel. The activated gear shift caused the mast of the

forklift to move backward, pinning plaintiff between the mast and the

forklift’s metal roll cage and injuring him in the process. 

The forklift in question was manufactured by defendant Mitsubishi

Caterpillar Forklift America, Inc. (MCFA), and sold new to Nuttall

Gear by defendants Buffalo Lift Trucks, Inc. (Buffalo Lift) and Mullen

Industrial Handling Corp. (Mullen). The forklift as manufactured was

equipped with a seat safety switch that would render the forklift

inoperable if the operator was not in the driver’s seat. At the time

of the accident, however, someone had intentionally disabled the

safety switch by installing a “jumper wire” under the seat of the

forklift. As a result, the forklift still had power when the operator

was not in the driver’s seat. Of the 10 forklifts owned by Nuttall

Gear, seven had “jumper wires” installed that disabled the safety

switches. 

The complaint asserts causes of action against MCFA, Buffalo Lift

and Mullen sounding in strict products liability, alleging, inter

alia, that the forklift was defectively designed and that those

defendants failed to provide adequate “warnings for the safe

operation, maintenance repair and servicing of the forklift.” The

complaint also alleged that Nuttall Gear and its related entities,

defendants Nuttall Gear Corporation, Delroyd Worm Gear, Altra

Holdings, Inc., and Altra Industrial Motion, Inc. (collectively,

Nuttall Gear defendants) were negligent in, among other things,

failing to maintain the forklift in a safe condition. Following

discovery, the strict products liability defendants (MCFA, Buffalo

Lift and Mullen) each moved for summary judgment dismissing the

complaint against them, contending that the forklift was safe when it

was manufactured and delivered to Nuttall Gear, and that it was

thereafter rendered unsafe by a third party who deactivated the safety

switch. The Nuttall Gear defendants also moved for summary judgment,

asserting that plaintiff was Nuttall Gear’s special employee and is

thus barred by Workers’ Compensation Law § 11 from suing them. 

Supreme Court granted the motions and dismissed the complaint in its

entirety, and this appeal ensued. 

We conclude that the court properly granted the motions of the

products liability defendants. As the Court of Appeals has recently

made clear, “ ‘a manufacturer, who has designed and produced a safe

product, will not be liable for injuries resulting from substantial

alterations or modifications of the product by a third party which

render the product defective or otherwise unsafe’ ” (Hoover v New

Holland N. Am., Inc., 23 NY3d 41, 54). Here, the products liability

defendants established as a matter of law that the forklift was not
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CA 13-02002 

defectively designed by establishing that, when it was manufactured

and delivered to Nuttall Gear, it had a safety switch that would have

prevented plaintiff’s accident, and a third party thereafter made a

substantial modification to the forklift by disabling the safety

switch. The burden thus shifted to plaintiffs to raise an issue of

fact, and they failed to meet that burden (see generally Zuckerman v

City of New York, 49 NY2d 557, 562). Contrary to plaintiffs’

contention, the affidavit of their expert, a professional engineer,

does not raise a triable issue of fact.

We agree with plaintiffs, however, that the court erred in

granting the motion of the Nuttall Gear defendants for summary

judgment dismissing the complaint against them, and we therefore

modify the order accordingly. It is well settled that “a general

employee of one employer may also be in the special employ of another,

notwithstanding the general employer’s responsibility for payment of

wages and for maintaining workers’ compensation and other employee

benefits” (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557). “A

special employee is described as one who is transferred for a limited

time of whatever duration to the service of another . . . General

employment is presumed to continue, but this presumption is overcome

upon clear demonstration of surrender of control by the general

employer and assumption of control by the special employer” (id.; see

Abreu v Wel-Made Enters., Inc., 105 AD3d 878, 879). Although the

determination of special employment status is “usually a question of

fact,” such a determination “may be made as a matter of law where the

particular, undisputed critical facts compel that conclusion and

present no triable issue of fact” (Thompson, 78 NY2d at 557-558; see

Bounds v State of New York, 24 AD3d 1212, 1213-1214; Short v Durez

Div.-Hooker Chems. & Plastic Corp., 280 AD2d 972, 972). 

Here, in support of their motion, the Nuttall Gear defendants

relied on an affidavit from an accountant who works in Nuttall Gear’s

human resources department. Although the accountant stated that

Nuttall Gear supervised plaintiff and controlled his work, she did not

identify any specific Nuttall Gear employees who did so, nor did she

state her basis of knowledge. In fact, there is no indication in the

record that the accountant ever witnessed plaintiff working or

observed anyone directing or supervising him, and it is well settled

that an affidavit is without evidentiary value if the affiant has no

personal knowledge of the facts asserted therein (see King’s Ct.

Rest., Inc. v Hurondel I, Inc., 87 AD3d 1361, 1363). 

In any event, even assuming, arguendo, that the Nuttall Gear

defendants met their initial burden of establishing as a matter of law

that plaintiff was a special employee, we conclude that plaintiffs

raised an issue of fact by submitting an affidavit from SPS’s

president, who stated that SPS never relinquished control or

supervision of plaintiff to Nuttall Gear or anyone else. According to

SPS’s president, its temporary employees are required to check in with

SPS at least one hour before showing up for work, and SPS retains the

exclusive authority to discipline those employees. Plaintiffs also

submitted the deposition testimony of two Nuttall Gear supervisors who

were working at the facility with plaintiff at the time of the
-4- 1065 

CA 13-02002 

accident, both of whom testified that they had no contact with

plaintiff. It appears from the record that the only person who had

contact with plaintiff at Nuttall Gear was Mark Moscato, who himself

was a general employee of SPS. The Nuttall Gear defendants have not

identified a single person, other than Moscato, who told plaintiff

what to do or how to do it. 

The motion court’s reliance on Thompson (78 NY2d 553) was

misplaced. In Thompson, the plaintiff worked for the defendant for

approximately one year, and reported daily to one of defendant’s

supervisors, “who assigned, supervised, instructed, oversaw, monitored

and directed his work duties on a daily basis” (id. at 556). Here, in

contrast, plaintiff worked at Nuttall Gear for only 9.5 hours, and

there is no evidence that he had any contact with a Nuttall Gear

supervisor. The other cases cited by the motion court — Rucci v

Cooper Indus. (300 AD2d 1078) and Davis v Butler (262 AD2d 1039) — are

similarly distinguishable. For example, in Rucci, the record on

appeal shows that the plaintiff admitted that he reported daily to the

superintendent of defendant Lehigh Construction Group, Inc. (Lehigh)

and received his work assignments from the superintendent. The

plaintiff also admitted that Lehigh controlled his work. There are no

such admissions from plaintiff in this case. We thus conclude that an

issue of fact exists whether plaintiff was a special employee of

Nuttall Gear (see e.g. Lee v ServiceMaster Co., 37 AD3d 1163, 1164-

1165; Evans v P.C.I. Paper Conversions, Inc., 32 AD3d 1310, 1310-1311;

Bounds, 24 AD3d at 1213-1214; cf. Majewicz v Malecki, 9 AD3d 860,

861). 

Entered: January 2, 2015 Frances E. Cafarell

Clerk of the Court