Hostman v. JPW Indus.

1

2021 NY Slip Op 33849(U)

Brittany Hostman, Plaintiffs, v. JPW Industries, Inc. d/b/A Powermatic Tool, Pratt Institute, Robyn Mierzwa d/b/a Makeville Studio, LLC and Makeville Studio, LLC. Defendants.

Index No. 521165/17

Supreme Court, Kings County

February 5, 2021

Unpublished Opinion

At an IAS Term, Part 70 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse at Civic Center, Brooklyn, New York, on the 5th day of February, 2021.

PRESENT: HON. WAVNY TOUSSAINT, Justice.

HON WAVNY TOUSSAINT, J.S.C.

The following er filed papers read herein: NYSCEF Doc Nos.^[1] Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 20-33, 34-40

Opposing Affidavits (Affirmations); 41-55, 56-63

Reply Affidavits (Affirmations) 64, 65

Upon the foregoing e-filed papers, defendant Pratt Institute (Pratt) moves, in motion sequence (mot. seq.) one, for an order, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiff Brittany Hostman (plaintiff) and all cross claims asserted against it. Defendants Robyn Mierzwa (Mierzwa) d/b/a Makeville Studio, LLC and Makeville Studio, LLC (Makeville or the studio) move, in mot. seq. two, for an order, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs complaint and all cross claims asserted against them.

Overview

This is a lawsuit for personal injuries arising out of an accident that occurred on March 31, 2017 when plaintiff, a 22-year-old Pratt student, sustained three amputated fingers while using a Powermatie HH jointer, a woodworking power machine used to make pieces of wood perfectly flat. The accident occurred while plaintiff was taking an independent study course in woodworking at Makeville, a woodworking studio located in Brooklyn, New York, in connection with the degree she was pursuing at Pratt^[2] The claim against Pratt sounds in negligence and the claims against Makeville sounds in negligence, product liability, and breach of warranty.

Background Facts and Procedural History

In April, 2016, while plaintiff was still attending Pratt, a dispute arose between plaintiff and Pratt regarding plaintiff s use of a service dog on the Pratt campus (NYSCEF Doc No. 28 at 70). Thereafter, plaintiff filed a complaint with the United States Department of Education, Office for Civil Rights (OCR) against Pratt (NYSCEF Doc No. 25). As a result plaintiff and Pratt entered into an Early Complaint Resolution Agreement (OCR Agreement) to resolve plaintiffs complaint (id).

The agreement provided, in relevant part, that for the academic year 2016-2017, Pratt would "identify an off-campus studio space(s) in order for [plaintiff] to complete .. . an independent study course in woodworking during the fall 2016 semester" (id. at ¶ 3), and that Pratt would provide plaintiff "with comparable classroom instruction such as that provided to students working in the on-campus studios, and evaluate her artwork, notwithstanding her participation at an off-campus studio" (id. at ¶ 4), Pratt also agreed to pay for plaintiff's use of the off-campus studio space directly to the owner/manager of the off-campus studio during the Fall 2016 semester and Spring 2017 semester (id. at ¶ 3) that "any off-campus studio space(s) it identified] for [plaintiff would] provide [her] with the appropriate equipment and available amenities necessary to complete any assignments for her studio courses and/or independent study courses (id)"; that the off-campus studio space would be wheelchair accessible to plaintiff (id.); that if plaintiff "independently identifie[d] and secure[d] off-campus studio space(s)" during the academic year 2016-2017 "that contain[ed] the appropriate equipment and available amenities, and [were] preferable to the off-campus studio space(s) identified by [Pratt]... [Pratt] [would] provide payment for such studio space(s) ..." (id at 3); and that Pratt would "provide payment for [plaintiffs] transportation to and from the identified off-campus studio space(s) via car service/taxi for the duration of academic year 2016-2017 . ." (id).

In the Fall of 2016, Marie McLaughlin, Assistant to the Director of the Learning Access Center at Pratt (NYSDEF Doc No. 31 at 9) called approximately five woodshops to identify studio spaces/woodshops in the area for plaintiff that were accepting new members and which were also wheelchair accessible (id. at 17-18). According to Ms. McLaughlin, plaintiff had the ultimate decision-making power as to which wocdsbop would be chosen (id. at 18). Ms. McLaughlin gave plaintiff Makeville's contact information and the informat ion for another wood shop (id. at 19).

In December of 2016, plaintiff visited Makeville alone (NYSCEF Doc No. 29 at 24-25). No one from Pratt offered to accompany her (NYSDEF Doc No. 31 at 22). The studio was a woodworking community shop but also taught classes (NYSCEF Doc No. 29 at 14). During the visit, plaintiff inquired of owner Ms. Robyn Mierzwa about becoming a member of die shop. Plaintiff told Mierzwa that there had been an issue with her service dog at Pratt, and that she wanted to find an alternate space where she could complete her course work (NYSCEF Doc No. 29 at 25). Ms. Mierzwa told plaintiff that in order to become a member of the shop, she would have to pass a "workshop certification," which was a "safety assessment" and "skills assessment" that the studio "put people through before they [could] use the shop" (id. at 16-17, 25-26). Ms. Mierzwa also told plaintiff that if she were doing course work she would probably want to have her instructor with her (id. at 26). However, having plaintiff's instructor present at the studio with her was voluntary and not a prerequisite to plaintiffs use of the studio (id. at 32).

Ms, Mierzwa characterized the workshop certification as a "test" which either she or her "shop techs" administered (id. at 18), Shop techs or shop monitors were individuals at the studio who performed instruction, administered the test, and taught classes in exchange for the right to use the studio (id. at 18-21,70), The workshop certification was an hour-long "machine by machine checklist, questions and demonstrations that each participant must answer" which "test[s] [his or her] knowledge of the machine set up, safety and basic techniques" (id. at 99, 98), The workshop certification testing was done on all large stationary machines, which included the jointer, the planer, the drill press, the table saw', the band saw and routers, and the router table (id. at 102). According to Ms, Mierzwa, "[e]ach of the modules for the machine are pass fail.. . [i]f someone does not pass on the machine, they are not allowed to use the machine" (id. at 100). Thus, an individual could not use the shop without first taking and passing the workshop certification (id. at 18). Further, if plaintiff had failed the section of the test about the jointer, she would not have been allowed to use the jointer (id. at 100).

Plaintiff ultimately chose Makeville as her wheelchair accessible off-campus woodshop (NYSCEF Doc No. 31 at 22). Steven Bennett, a studio shop tech, administered the workshop certification to plaintiff in late December 2016 or early January 2017 (NYSCEF Doc No. 29 at 30), Plaintiff passed all portions of the workshop certification, and was allowed to become a member of the studio (id. at 31, 100-101)^[3]

After plaintiff passed the workshop certification, she read and then signed a release entitled "Assumption of Risk and Release Of All Liabilities, Claims and Injuries" (NYSCEF Doc No. 28 at 160-161, NYSCEF Doc No. 39). Plaintiff then contacted Pratt, which, in turn, contacted Ms. Mierzwa (id. at 28). Pratt paid Ms. Mierzwa for the certification fee ($100), and Ms. Mierzwa then set up the monthly membership fee payment ($400) for plaintiffs use of the studio (NYSCEF Doc No. 29 at 29). Other than the payment of the membership fee there was no other agreement between the studio and Pratt with respect to plaintiff's use of the studio (id. at 124), nor did Pratt have any additional contact with Ms. Mierzwa (id. at 26-27).

According to Ms. Mierzwa, there was a difference between an individual who was a member at the studio and an individual who was taking classes there - someone taking classes was not a member (id. at 126). A member, however, performed the workshop certification, but the member did not receive any instruction from studio employees, studio independent contractors, or other studio individuals about woodworking or how to use equipment in the shop (id.). In this regard, plaintiff's membership at the studio entitled her to access to the machines she had been certified on as well as access to work benches and storage spaces (id at 127). During plaintiff's attendance at the studio, she did not take any classes (id. at 129).

Ms. Mierzwa testified that new members were told that if a machine malfunctioned on the shop floor, the shop rule was to report any unusual or unexpected behavior on the machines (id, at 106), According to Mierzwa, the shop techs/monitors at the studio were there to monitor the shop, not to monitor the people working there (id. at 70).

Once plaintiff began her course work at the studio, she met with her professor, Yasu, once a week or every two weeks (NYSCEF Doc No. 28 at 81-82) i.e. approximately three to four times before her accident (id. at 146). The first time plaintiff worked at the studio Yasu was also present. After that first meeting, it was up to plaintiff to schedule the times she would be in the studio (id. at 145). When plaintiff met with Yasu, she would have specific questions about the pieces that she was working on and Yasu would give her guidance on making...