SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

237 

CA 14-01446 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ. 

 

MICHAEL D. FILER, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

KEYSTONE CORPORATION, ABS MACHINING, LTD., 

ARTHUR SIMMONS AND SUPERIOR TECHNICAL 

RESOURCES, INC., DEFENDANTS-APPELLANTS. 

 

GOLDBERG SEGALLA LLP, BUFFALO (ALBERT J. D’AQUINO OF COUNSEL), FOR

DEFENDANT-APPELLANT KEYSTONE CORPORATION. 

DAMON MOREY LLP, BUFFALO (HEDWIG M. AULETTA OF COUNSEL), FOR

DEFENDANTS-APPELLANTS ARTHUR SIMMONS AND SUPERIOR TECHNICAL RESOURCES,

INC. 

HURWITZ & FINE, P.C., BUFFALO (DAVID R. ADAMS OF COUNSEL), FOR

DEFENDANT-APPELLANT ABS MACHINING, LTD.

PROVOST UMPHREY LAW FIRM, L.L.P., BEAUMONT, TEXAS (JENNIFER J. SEALE,

OF THE TEXAS BAR, ADMITTED PRO HAC VICE, OF COUNSEL), DELDUCHETTO &

POTTER, SYRACUSE, FOR PLAINTIFF-RESPONDENT. 

 

Appeals from an order and judgment (one paper) of the Supreme

Court, Erie County (John L. Michalski, A.J.), entered February 7,

2014. The order and judgment denied the motions of defendants for

summary judgment. 

It is hereby ORDERED that the order and judgment so appealed from

is unanimously modified on the law by granting the motion of

defendants Arthur Simmons and Superior Technical Resources, Inc. and

dismissing the third amended complaint against them, and as modified

the order and judgment is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries he sustained while employed by nonparty Dresser-Rand Company

(Dresser), which manufacturers compressors used in oil and gas

production. Plaintiff was unloading a crate containing industrial

diaphragm sections when the crate collapsed and the diaphragms spilled

out, knocking him to the ground. The diaphragms were manufactured by

defendant ABS Machining, Ltd. (ABS) pursuant to a contract with

Dresser, which required that the diaphragms be nickel-plated. ABS

contracted with defendant Keystone Corporation (Keystone), an

industrial metal finisher, to perform that portion of the work.
-2- 237 

CA 14-01446 

Both ABS and Keystone contend that Supreme Court erred in denying

their respective motions for summary judgment dismissing the third

amended complaint against them because they did not owe a duty of care

to plaintiff. We reject those contentions. ABS and Keystone were

part of the manufacturing and distribution of the diaphragms and thus

owed a duty to plaintiff based on common-law negligence and strict

products liability principles (see Hoover v New Holland N. Am., Inc.,

23 NY3d 41, 53; Codling v Paglia, 32 NY2d 330, 339; MacPherson v Buick

Motor Co., 217 NY 382, 388). ABS manufactured the diaphragms, and

designed and provided the crate, blocking and banding used for

packaging and shipping the diaphragms to Keystone. After nickelplating the diaphragms, Keystone repackaged the product and shipped it

directly to the end user, Dresser, in the crate provided by ABS. Both

ABS and Keystone had duties to comply with standard industry practices

with respect to packaging and shipping of the product, and neither

placed any instructions or warnings on or with the crate regarding

safe methods of uncrating the product. ABS failed to establish as a

matter of law that it used reasonable care in the design and testing

of the packaging for its product, i.e., the crate, and that it

provided adequate warnings with the product regarding the safe

uncrating of it. Keystone, likewise, failed to establish as a matter

of law that it used reasonable care in repackaging the product after

performing its nickel-plating process, or that it provided adequate

warnings regarding safe methods of uncrating the product. 

ABS and Keystone also failed to establish as a matter of law that

they had no duty to plaintiff arising out of the subject contracts. 

It is well established that “ ‘a contractual obligation . . .

impose[s] a duty . . . in favor of the promisee and intended

third-party beneficiaries’ ” of the contract (Espinal v Melville Snow

Contrs., 98 NY2d 136, 140) and, contrary to the contention of ABS, we

conclude that plaintiff was an intended third-party beneficiary of the

contract between ABS and Dresser (see id.; cf. Hughey v RHM-88, LLC,

77 AD3d 520, 522; Betancourt v Trump Empire State Partners, 27 AD3d

604, 605-606). The contract required that “all packaging materials be

of sufficient construction to ensure that the integrity and stability

of the entire package provides for safe handling upon delivery to

[Dresser]” (emphasis added). It therefore “clearly appear[s]” from

the language of the contract that Dresser and ABS “intended to confer

a direct benefit” on Dresser employees such as plaintiff who would be

unloading the crates “to protect [them] from physical injury” (Bernal

v Pinkerton’s, Inc., 52 AD2d 760, 760, affd 41 NY2d 938; see All Am.

Moving & Stor., Inc. v Andrews, 96 AD3d 674, 674-675). 

With respect to Keystone, although plaintiff was neither a party

to the contract between Keystone and ABS nor an intended third-party

beneficiary thereof (see Aiello v Burns Intl. Sec. Servs. Corp., 110

AD3d 234, 241-242; Hughey, 77 AD3d at 522; Gerbino v Tinseltown USA,

13 AD3d 1068, 1070), we conclude that Keystone failed to establish as

a matter of law that it did not assume a duty of care to plaintiff by

“ ‘launch[ing] a force or instrument of harm’ ” (Church v Callanan

Indus., 99 NY2d 104, 111; see Espinal, 98 NY2d at 139; Dunleavy v

Tuttle, 83 AD3d 995, 996). It is undisputed that diaphragm sections
-3- 237 

CA 14-01446 

were typically shipped flat on pallets. Here, however, Keystone

required ABS to ship the diaphragms in an upright position, curvedside down, for Keystone’s convenience. Keystone then repackaged the

diaphragms vertically in the crates provided by ABS for pickup by

Dresser, even though Dresser did not ask Keystone to do so and

Keystone’s production manager testified at his deposition that he knew

of no reason why Keystone had to ship the diaphragms to Dresser

upright in a crate as opposed to flat on pallets. There is also an

issue of fact whether Keystone repackaged the crates in the same

manner as the crates were received from ABS. Although Keystone’s vice

president of operations and production manager testified at his

deposition that Keystone “returns all parts in the packaging or

containers supplied by the customer,” plaintiff’s coworker testified

that there was no wood “blocking” in the crate that broke open and

injured plaintiff. We therefore conclude that there is an issue of

fact whether Keystone “create[d] an unreasonable risk of harm to

others, or increase[d] that risk,” by packaging the diaphragms in a

vertical position without adequate stabilization (Church, 99 NY2d at

111; see Meyers-Kraft v Keem, 64 AD3d 1172, 1173). Finally, we

conclude that ABS and Keystone failed to meet their initial burden of

establishing as a matter of law that any acts or omissions on their

part were not a proximate cause of the accident (see Malamas v Toys

“R” Us-Delaware, Inc., 94 AD3d 1438, 1438-1439).

We agree with defendants Arthur Simmons and Superior Technical

Resources, Inc. (Superior), however, that the court erred in denying

their motion for summary judgment dismissing the third amended

complaint against them, and we therefore modify the order and judgment

accordingly. Simmons and Superior established as a matter of law that

Simmons was a special employee of Dresser at the time of his alleged

negligence, and plaintiff failed to raise a triable issue of fact in

opposition (see Munion v Trustees of Columbia Univ. in City of N.Y.,

120 AD3d 779, 780-781; Davis v Butler, 262 AD2d 1039, 1039-1040). 

Simmons had been employed by Dresser for over 30 years until his

retirement in 2004. In 2006, he returned to work for Dresser pursuant

to a contract with Superior, an employment agency. Simmons testified

at his deposition that he “never . . . met anybody from Superior,” and

that his entire relationship with Superior consisted of sending

timesheets to Superior and receiving a paycheck in return. At all

times relevant to the instant action, Simmons worked exclusively at

Dresser under Dresser’s supervision, with all training, assignments,

instruction, evaluation, and oversight coming from Dresser. Those

facts, which are undisputed, “ ‘establish surrender of complete

control by the general employer [Superior] and assumption of control

by the special employer [Dresser]’ ” (Cobb v AMF Bowling Prods., Inc.,

19 AD3d 1162, 1163). In opposition to the motion, plaintiff relied

solely on language in the Superior-Dresser contract stating that

Simmons was an employee of Superior, not Dresser, which is

insufficient to raise an issue of fact under the circumstances of this

case (see generally Thompson v Grumman Aerospace Corp., 78 NY2d 553,

559-560). 

Entered: May 1, 2015 Frances E. Cafarell

Clerk of the Court