Plaintiff in this negligence action seeks damages for personal injuries sustained in an electrical accident while connecting a power cord from the refrigerated box portion of a Squeeze Play Citrus Inc., truck to a Tropicana electrical outlet located on Tropicana's premises at 702 154th Street, in Whitestone, New York (facility). The incident occurred in Bay 17. Squeeze was an independent trucking contractor which operated a distribution truck route to deliver and distribute Tropicana products. Squeeze rented bay space from Tropicana for loading purposes and overnight parking of the vehicles, with access to electrical receptacles for the trucks to be plugged into overnight. Tropicana was the owner, operator and manager of the facility. Tropicana provided and oversaw the maintenance of the electrical receptacle located in each of the bays. Frank H. Truck Corp. (Frank Corp), is a "truck business" which repairs trucks and sometimes sells truck; it is an exclusive repair facility located on Tropicana's premises for independent trucking contractors which delivered Tropicana products. Frank Corp. provided maintenance and services to the companies that rented space from Tropicana. Frank Corp. was owned by plaintiff's parents Youeng Sook Hwang and Gyundock Hwang. Although allegedly not an employee of Frank Corp., plaintiff assisted his parents with customers as his parents spoke Korean and limited English. Plaintiff would obtain business orders, receive telephone calls, handle customers but would not make repairs to vehicles. On the date in question, the refrigeration portion of the Squeeze truck was not working properly and Frank Corp. was under contract to repair it. Squeeze moves for partial summary judgment on the issue of liability on the ground that there was no evidence that the truck itself was faulty or dangerous at the time in [*2]question. Plaintiff moves for partial summary judgment in his favor on the issue of liability as against Tropicana on the ground that the evidence points to liability solely on the part of Tropicana, and Tropicana moves to dismiss the complaint and cross complaint as against it on the ground that there is no evidence that the outlet which plaintiff used on the date in question was faulty in any way. The motions and cross motion are opposed by the respective parties.

Frank Corp. is a company that is licensed to repair trucks. It initially operated in Flushing and later moved to the Tropicana facility. Frank Corp. paid rent to Tropicana and is independent from Tropicana. Individual truck owners contracted with and paid Frank Corp. directly for repairs. Yeoung Hwang is the President of Frank Corp., and Gyundock (Frank) Hwang is a mechanic for the company. Plaintiff is the son of Yeoung and Gyundock Hwang. Plaintiff claimed in his deposition that he was not "employed" at the time of the incident but was just "helping" his father. However, in his Bill of Particulars, plaintiff stated that he lost income and that at the time of the subject accident he was a "general manager for Frank H. Truck Corp.", and "working for Frank H. Truck Corp".

Squeeze is a wholesaler of orange juice routes and a customer of Tropicana. Squeeze purchases orange juice from Tropicana. Paul Ach is the President of Squeeze. Michael Schoendorf is the driver of the Squeeze truck that is the subject of this action. The Squeeze truck that is the subject of this action is a 1993 Mack straight box single axle truck with a refrigeration unit that usually parks at Bay 17 at the Tropicana facility. The subject truck is titled to Squeeze.

Tropicana maintains a warehouse facility at 7-02 154th Street, Whitestone, New York. Tropicana sells juice to independent contractors such as Squeeze. James Shaw was the maintenance mechanic for Tropicana at the time of the accident and has been employed by Tropicana for a little over 10 years. Shaw has an associates degree in Aeronautics technology, and holds licenses in air frame and power plants, a license from the Fire Department of New York for refrigeration and air conditioning, fire sprinkler systems, electric and gas welding and the handling of LPG gases, propane for the forklift. Anthony Nelson was a forklift driver/loader for Tropicana and was employed for approximately 22 years. Nelson has a propane license and a high-low certification license. His job as a loader is to load juice on the customer's trucks, which as owned by independent operators such as Squeeze. Nelson was an eyewitness to the accident.

Nelson testified that there are three separate "fingers" (platforms) in the warehouse. There are Bays on each of the "fingers" where the trucks back in. Nelson was assigned to work the "first finger". Many route drivers have specific assigned Bays at the warehouse. The Squeeze truck at issue was assigned to Bay 17, and that was the location of the accident. Bay 17 shares the same electrical outlet with the neighboring Bay 16. There are two separate receptacles for two separate truck plugs in the electrical outlet that is the subject of this action.

The accident occurred on May 18, 2005 at approximately 4:30 p.m., at Bay 17 at the Tropicana warehouse. The Squeeze truck that was involved in the subject accident was parked at Bay 17. Both plaintiff and Squeeze defendants testified that at the time of the accident, the [*3]refrigeration unit on the subject Squeeze truck was not working. Paul Ach explained that there are two separate devices on the truck that can chill the box; an electric motor and a diesel-operated motor. The electric motor runs by being plugged into an electric outlet with a cord and plug. The diesel was working fine on the day of the accident. The electric was not. After the accident, the cord and plug of the truck were replaced and the truck worked fine. No repair was made to the electric motor.

During a warm month, such as May, the refrigerated truck would be plugged in overnight to maintain temperature until the driver arrived. Michael Schoendorf, driver of the Squeeze truck at issue, testified that it was his responsibility to plug the truck in. Schoendorf knew it wasn't working because "it was warm in the truck." The Squeeze truck in Bay 17 shared the subject electrical outlet with the truck in Bay 16. When Schoendorf arrived in the morning of the accident, the truck in Bay 16 was already plugged in. When Shaw arrived after the accident, the truck in Bay 16 was still plugged in. The neighboring truck was there and plugged in also. The majority of the electrical boxes on the premises have two receptacles in one box.

Photographs were taken by and submitted by plaintiff which depict, at least from the side, an exemplar electrical box with two separate refrigerated cords with their plugs plugged in. Shaw explained how the plugs work:

"You have to plug in the plug, which the ground pushes in a plunger. If it doesn't have the ground pin to push the plunger, you can't activate the switch.

Once you push the plug all the way in, it has to be fully seated , you have to push the switch in on it that's on top of the box. Once you push that switch in, you should have power.

Shaw testified that "the plug itself on the truck is subject to pretty harsh environment, especially in the wintertime. They hang from underneath the truck and they get salt and water and all kinds of contaminants in there." Ach testified that sometimes people still leave the plugs plugged in when they pull away the truck.

Plaintiff testified that on or about May 17, 2005, he received a telephone call from Ach stating that the cooler of the subject Squeeze truck wasn't working, wasn't making cold air and to check to see what was the problem. The truck was not going to be out on the road on the following date so an arrangement was made to service the truck on May 18, 2005. While plaintiff testified that he and his father were present on May 18, 2005, to repair the truck, this alleged fact isn't corroborated by any of the other witnesses including plaintiff's parents and the eyewitness. The Hwangs testified that they were both in the shop at the time of their son's accident.

Anthony Nelson, the eyewitness testified that plaintiff attempted to place the plug in the electrical box six times and stated that "[h]e kept pushing the button, pulling the cord out, pushing the button, pulling the cord out, pushing the button, pulling the cord out." On the sixth [*4]try, Nelson testified, the cord ignited burning plaintiff on the arm. Nelson testified that he was somewhere between 2-4 feet from plaintiff when the accident happened.

James Shaw, the maintenance mechanic for the warehouse, testified that he arrived at the scene within five minutes of the accident and examined the subject electrical box. Shaw did a visual inspection of the receptacle and observed that "there was not even any charring, nothing, no indication that there was even an accident there." Shaw also did a break check and observed that "the current was fine. It didn't trip the breaker or anything." At the time of his inspection, Shaw testified, the neighboring truck (Bay 16) was occupying the other slot in the same electrical outlet. Shaw testified that the outlet remained in service after the accident and the component parts were not changed. Shaw testified that "the box didn't explode; it didn't malfunction. It was the plug that malfunctioned." Shaw further stated that the plugs were the equipment and responsibility of the truck owners; and that in his post-accident examination of the cord and plug, he observed that they were both scorched. Shaw also testified that he examined the wire of the truck after the accident and observed that "it had a significant amount of silver duct tape wrapped around the plug and the cord that extends out of it."

After the accident, Shaw testified, he "cut the plug so that nobody else would come along and plug it back in."

Michael Schoendorf also testified that there were no char or dark marks on the electrical box after the accident.

Finally, photographs of plaintiff's arm were submitted which depict the burn to plaintiff's arm where the cord allegedly burned him and not his hand where, it is argued, the outlet would have burned or electrocuted him.

The motion by Squeeze for summary judgment in its favor is denied. Squeeze's motion for summary judgment is based upon the contention that there was no evidence that the truck wire and plug were frayed or dangerous in any way. In support of this contention, Squeeze submitted the testimony of several persons indicating that both the wire and the plug connected to the truck were in good condition. Plaintiff testified that both the wire and the plug connected to the truck were in good condition. Gyundock Hwang testified that the wire and the plug were in good condition. Michael Schoendorf, who operated the truck, testified that both the wire and the plug were in good condition. Paul Ach, President of Squeeze, testified that both the wire and the plug were in good condition.

In opposition, however, the transcript of the testimony of James Shaw was submitted. Shaw testified that he observed duct tape on the wires immediately after the accident and that he cut the wires and disposed of them. Shaw also testified that he observed that the plug was scorched from the tail where the cord exits all the way out through. Although Schoendorf and Ach testified that the duct tape was only to ensure that the plug continually maintained its [*5]connection to the electrical receptacle, testimony in opposition raises an issue of fact as to whether the duct tape was used to cover or connect an unsafe condition.

The issue of whether a dangerous or defective condition exists depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury (Schectman v Lappin, 161 AD2d 118, 121 [1990]; see also Evans v Pyramid Co., 184 AD2d 960 [1992]; Guerrieri v Summa, 193 AD2d 647 [1993]; see also, Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). Furthermore, the conflicting testimony of the respective parties as to the purpose of the duct tape and the condition of the wire and plug raises issues of credibility which cannot be resolved on a motion for summary judgment (see Medina v 203 W. 109th St. Realty Corp., 16 AD3d 220 [2005]).

The motion by plaintiff for summary judgment in his favor is denied. Plaintiff failed to establish his prima facie entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Plaintiff contends that he is entitled to summary judgment in his favor based upon facts in the record which indicate that the electrical connection boxes in Bay 17 were never inspected. Plaintiff argues that "the failure to inspect constitutes a violation of Tropicana's duty to maintain the property in a reasonably safe condition and was the proximate cause of plaintiff's accident". "[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense" (Velasquez v Gomez, 44 AD3d 649 [2007, citing George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [1992]).

Furthermore, the record does not conclusively establish that the cause of the accident was a faulty electrical outlet. While plaintiff's evidence suggests there were no problems with the plug and wire of the Squeeze truck suggesting the problem had to be with the outlet, Tropicana's evidence in opposition suggests otherwise. Specifically, Tropicana submitted evidence indicating that the plug and outlet were both scorched after the accident but that the outlet was not damaged and there were no char marks or dark marks on the electrical box after the accident. Tropicana also established that the electrical outlet box was not replaced after the accident while the plug and cord on the Squeeze truck were.

In any event, Anthony Nelson, a witness who observed plaintiff at the time of the accident, testified that the cord caught fire and burnt plaintiff's arm and that plaintiff was not electrocuted as alleged. Nelson further stated that he observed plaintiff plug the cord into the outlet about six times and that on the sixth try, the cord lit up.

Most damaging to plaintiff's claim for summary judgment in his favor, however, is an affidavit from a fire inspector who avers that:

"based on [his] review of the sworn deposition testimony and personal inspection of the site, [he] conclude[d] that defendant, Frank H. Truck Corp. and their employee, plaintiff Chris Hwang, during the incident at Bay 17 located at the Tropicana Products facility on [*6]May 18, 2005, engaged in electrical work contrary to the license requirements of the City of New York in violation of Section 27-3017 of the New York City Electrical Code."

Also, no expert testimony was introduced by plaintiff in support of his motion for summary judgment. Plaintiff only proffered the affidavit of his attorney. An attorney's affidavit is of no probative value on a summary judgment motion unless accompanied by documentary evidence which constitutes admissible proof. (Adam v Cutner & Rathkopf, 238 AD2d 234 [1997]). Here, there is no such proof.

Furthermore, contrary to plaintiff's contention, he is not entitled to summary judgment against Tropicana based upon the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur permits an inference of negligence to be drawn from the happening of an accident solely upon the theory that "certain occurrences contain within themselves a sufficient basis for an inference of negligence" (Martinez v City of New York, 292 AD2d 349 [2002], citing George Foltis, Inc. v City of New York, 287 NY 108, 116 [1941]; see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]). "The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may—but is not required to—draw the permissible inference" (Dermatossian v New York City Tr. Auth., supra at 226). Since the doctrine of res ipsa loquitur is a rule of evidence, which merely provides a permissible inference of negligence, rather than a presumption, its application as a basis for an award of summary judgment is inappropriate (see Tarson v Niagara Mohawk Power Corp., 278 AD2d 865 [2000]; Vaynberg v Provident Operating Corp., 269 AD2d 442 [2000]; Feuer v HASC Summer Program, 247 AD2d 429 [1998]; Davis v Federated Dept. Stores, 227 AD2d 514 [1996]). In any event, plaintiff's evidentiary submissions failed to establish, as a matter of law, that the instrumentality which caused the subject accident was in the exclusive control of the defendant Tropicana (see De Witt Props. v City of New York, 44 NY2d 417 [1978]; Greenidge v HRH Constr. Corp., 279 AD2d 400 [2001]).

The cross motion by Tropicana is granted. In support of its cross motion Tropicana submitted, inter alia, the examination before trial transcripts of seven witnesses, including an alleged eyewitness to the fire, Anthony Nelson. Plaintiff testified that he had no memory of whether the fire came from the wire or the box and that he had no theory of assigning liability.

Tropicana demonstrated, inter alia, that the same electrical outlet which plaintiff claims was defective was providing continuous service to Bay 16 before and after the subject accident. James Shaw testified that he did a visual inspection immediately after the accident and found that there was not any charring, nothing, no indication that there was even an accident there. Michael Schoendorf of Squeeze also testified that there were no char marks or dark marks on the [*7]electrical box after the accident. Shaw testified that he also did a current check and concluded that "the current was fine. It didn't trip the breaker or anything." Shaw also testified that neither the electrical box nor any of its component parts were changed after the accident.

Squeeze's expert, William Hayden, MSFE, CFI, CFPS, a fire inspector and cause and origin expert also notes in his report that the fire started in the cord and not the receptacle.

Overall, in support of its cross motion for summary judgment, Tropicana submitted deposition transcripts containing evidentiary facts sufficient to establish a prima facie case that the source and cause of the accident at issue was the faulty plug and cord and/or the negligence of plaintiff (see Heilman v Bronx River Associates, 204 AD2d 393 [1994]; Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]). As there is no competent evidence submitted to the contrary, there is no basis for holding that Tropicana is guilty of any negligence in connection with the subject accident. Therefore, Tropicana's cross motion for summary judgment insofar as it sought dismissal of all causes of action as against it sounding in negligence is granted.

The motions for summary judgment in favor of, respectively, Squeeze and plaintiff are denied. The cross motion for summary judgment in favor of Tropicana is granted.

Dated: April 27, 2010

J.S.C.