Plaintiff, James Bloomer, commenced this action against defendant to recover for injuries he sustained to his lower lumbar spine allegedly on December 20, 2001, when the seat of the forklift he had grabbed in order to mount the fork lift broke free and he fell. Defendant, Empire Forklift, Inc., moves pursuant to CPLR 3212 for an order granting summary judgment in its favor and dismissing the complaint. Plaintiff opposes the motion. Plaintiff had also moved pursuant to CPLR 5519 for a stay of the action on the ground that he had an appeal pending of a substantive prior decision of this Court. However, plaintiff withdrew its appeal and therefore withdrew his motion for a stay.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v. NY Univ. Meld. Cr., supra. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman v. City of NY, 49 NY2d 557, 562 (1980). All competent evidence must be viewed in the light most favorable to the party opposing the motion. Foresite Properties Inc. v. Halsdorf, 172 AD2d 929 (3rd Dep't 1991).

The Court notes first that this case concerns the defendant's provision of forklift maintenance services pursuant to a contract made with plaintiff's employer. New York does not recognize a [*2]cause of action based upon breach of warranties arising out of the performance of services and the record does not indicate that the parties contracted for a standard of performance beyond traditional negligence. As such, plaintiff's second and third causes of action for breach of express and implied warranties must be dismissed. Capital Wireless Corp, v. Deloitte & Touche, 216 AD2d 663, 665 (3rd Dep't 1995); Aegis Productions, Inc. v. Arriflex Corp. of America, 25 AD2d 639 (1st Dept 1966).

Similarly, because this case concerns the defendant's provision of forklift maintenance services pursuant to a contract made with plaintiff's employer, plaintiff's fourth cause of action sounding in strict products liability also cannot stand. See Trustees of Columbia Univ. v. Gwathmey, Siegel & Assocs. Architects, 192 AD2d 151, 155 ( 1st Dep't 1993).

Next, in regards to plaintiff's first cause of action for negligence, the Court finds that in viewing defendant's proof in the light most favorable to plaintiff, such proof compels the conclusion that no material triable issues of fact exist that would allow plaintiff to sustain this cause of action. In deed, defendant's proof satisfies the prima facie showing required to warrant judgment as a matter of law if not rebutted by plaintiff. Such a showing shifted the burden to plaintiff to lay bare his proof and demonstrate the existence of a triable issue of fact. See Alvarez: v. Prospect Hosp., 68 NY2d 320, 326-327 (1986). The Court finds, however, that plaintiff has not met his burden.

In particular, in getting to the bottom line, plaintiff has failed to establish that his alleged back injuries were proximately caused by the incident complained of More specifically, plaintiff's only proof that the forklift seat came off on December 20, 2001, is his own testimony. No other proof whatsoever has been submitted to substantiate his claim. Nevertheless, even if the Court were to assume that the defendant was negligent when it serviced the forklift on December 6, 2001, two weeks prior to the plaintiff's alleged accident, and loosened or removed the bolts that affixed the seat to the forklift, even though the plaintiff testified that he used the forklift without incident for the two weeks thereafter and never noticed during that time that the seat was loose, there is still no proof in this record that plaintiff's back injuries were in anyway proximately caused when he grabbed onto the forklift seat and the seat allegedly gave way.

First, plaintiff testified that after this incident allegedly occurred, he put the seat back on the forklift and continued working. In fact, the record shows that plaintiff did not lose any time from work that day or after this incident. The record then shows that the first time plaintiff officially complained of being injured in the December 20, 2001 incident was on January 17, 2002, almost a month later. A report made by plaintiff's employer states that plaintiff reported only that the forklift seat moved, he lost his balance and fell against the hydraulic tank bruising his left ribs and right hip. Plaintiff did not report anything, however, about his back.

Nothing further occurred until February 20, 2002, two months after the incident. Plaintiff's employer made another report which stated that plaintiff injured his lower back, but that the cause of the injury Was "unknown". The report stated specifically that: [*3]

"Employee worked a full day on Friday 2/8/02, he did not report or even mention any pain or injury to co-workers or his supervisors. James [plaintiff] called Jacques Donovan on Mon 2/1 1 and told him his back locked up and he was going to the emergency room. On 2/20, B. Cicero [the person making the report] spoke with James directly, he claims that he does not know what caused back pain. He admits working a full day of Fri 2/8 without injury. He claims that he just 'hung around' on Saturday and woke up on Sun 2/10 with his back locked."

The Court notes further that the record is devoid of any deposition testimony, affidavits, medical records or any other evidentiary proof that causally relates plaintiff's alleged back injuries to the December 20, 2001 forklift seat incident. Rather, the defendant has submitted some medical records for the plaintiff which show only that the onset of plaintiff's alleged back injuries occurred on February 8, 2002, when he was getting out of bed and his back locked up. In short, without any proof of a causal connection, plaintiff cannot raise an issue of fact as to proximate cause in order to allow his negligence claim to withstand summary judgment. See Brown v County of Albany, 271 AD2d 819 (3rd Dep't 2000); Couse v. La Torre Orthopedic Lab. Inc., 221 AD2d 709 (3' Dep't 1995). In fact, even if plaintiff's causes of action for breach of express and implied warranties and strict liability had not already been dismissed, they too would have to be dismissed anyway for the plaintiff's failure to establish any causal connection between the December 20, 2001 incident and his alleged back injuries. See e.g. Clarke v. Helene Curtis, Inc. 293 AD2d 701 (2nd Dep't 2002).

Finally, to the extent that plaintiff wanted to rely on the doctrine of res ipsa loquitur, the record shows that the defendant did not have exclusive control over the fork lift between December 6, 2001 and December 20, 2001, Rather, plaintiff's employer had exclusive control over the forklift during that time. Therefore, the doctrine of res ipsa loquitor cannot apply to this case. See DeSanctis v. Montgomery Elevator Company, Inc., 304 AD2d 936 (3rd Dep't 2003).

Accordingly, for all of the foregoing reasons, defendant's motion for summary judgment is granted and the complaint is dismissed in its entirety.

This memorandum shall constitute both the decision and the order of the Court. All papers, including this decision and order, are being returned to defendant's counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

IT IS SO ORDERED.

Dated: February 26, 2007.

Albany, New York

<> [*4]

JOHN C. EGAN, JR, J.S.C.

The Court considered the following papers:

By Plain tiff:

Order to Show Cause dated October 19, 2006;

Affirmation in Support of Lawrence H. Katz, Esq., undated, with exhibits A-J;

Affidavit of Kenneth Heffran sworn to October 17, 2006

Letter of Herbert William Fischman dated November 6, 2006;

By Defendant;

Notice of Motion dated August 2, 2006;

Affirmation in Support of Victor A. Vincenzi, Esq., dated August 2, 2006, with exhibits A-I;

Affidavit of Larry McDowell sworn to May 12, 2006;

Affidavit of Bruce Goodall sworn to April 10, 2006;

Affidavit of David R. Rice sworn to April 5, 2006, with attachments;

Reply Affirmation of Victor A. Vincenzi, Esq., dated October 26, 2006.

Reply Affirmation of Victor A. Vincenzi, Esq., dated May 16, 2006.

NCAS

Bloomer v. Empire Forklift, Inc.