Arias v. Sanitation Salvage Corp.

• Decision Date: 23 November 2021
• Docket Number: 14679-14680-14680A,Index No. 302277/15,Case No. 2021-00639, 2020-03786, 2020-03995
• Citation: 199 A.D.3d 554,159 N.Y.S.3d 14
• Parties: Robert ARIAS, Plaintiff–Respondent, v. SANITATION SALVAGE CORP., Defendant–Appellant, S.M.H.S. Realty Corp., et al., Defendants. [And a Third–Party Action] S.M.H.S. Realty Corp., Third–Party Plaintiff–Respondent–Appellant, Madelein Title, Third–Party Plaintiff, v. The Lobster Place Inc., Third–Party Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 554

159 N.Y.S.3d 14

Robert ARIAS, Plaintiff–Respondent,

v.SANITATION SALVAGE CORP., Defendant–Appellant,S.M.H.S. Realty Corp., et al., Defendants.

[And a Third–Party Action]

S.M.H.S. Realty Corp., Third–Party Plaintiff–Respondent–Appellant,

Madelein Title, Third–Party Plaintiff,

v.The Lobster Place Inc., Third–Party Defendant–Appellant–Respondent.

14679-14680-14680A

Index No. 302277/15

Case No. 2021-00639, 2020-03786, 2020-03995

Supreme Court, Appellate Division, First Department, New York.

ENTERED November 23, 2021

Law Offices of Cheng & Associates PLLC, Long Island City (Pui C. Cheng of counsel), for appellant.

Cascone & Kluepfel, LLP, Garden City (Howard B. Altman of counsel), for appellant-respondent.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for respondent-appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliott J. Zucker of counsel), for respondent.

Acosta, P.J., Gische, Singh, Scarpulla, Mendez, JJ.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered September 15, 2020, which, to the extent appealed from as limited by the briefs, denied defendant Sanitation Salvage Corp.’s (Sanitation) motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Order, same court and Justice, entered on or about August 19, 2020, which, to the extent appealed from as limited by the briefs, denied defendant/third-party plaintiff S.M.H.S. Realty Corp.’s (SMHS) motion for summary judgment dismissing the complaint as against it and on its third-party contractual indemnification claim against third-party defendant Lobster Place Inc. (Lobster), unanimously modified, on the law, to grant SMHS's motion as to dismissing the complaint against it, and otherwise affirmed, without costs. Order, same court and Justice, entered on or about August 19, 2020, which, to the extent appealed from as limited by the briefs, denied Lobster's motion for summary judgment dismissing the complaint as against SMHS and the third-party complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against SMHS and the third-party complaint.

Plaintiff commenced this action to recover for personal injuries that he sustained when he slipped and fell on a piece of fish skin on the ground at Lobster, a wholesale seafood processing and distribution facility, at which he was employed as a delivery driver. At all relevant times, SMHS owned the property, which it leased to Lobster, and Lobster contracted with Sanitation to perform garbage removal services. Plaintiff testified that his accident occurred on the sidewalk abutting Lobster after Sanitation had performed its morning garbage removal services, during which, he alleges, it dropped the fish skin on the ground.

Sanitation established prima facie that it neither caused the fish skin to be on the ground nor had notice that it was there (see generally Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011] ). In opposition, plaintiff raises an issue of fact. Plaintiff testified that he slipped on a salmon skin on the sidewalk. The accident occurred shortly after Sanitation was at the premises to remove organic waste, which included fish remains. Notwithstanding Sanitation's claims that it did not drop fish remains the morning of the accident, Lobster's owner testified that there were occasions that garbage would end up on the street after trash pick-ups. This is sufficient circumstantial evidence to have the trier of fact decide the issue. Moreover, this conclusion is reached without considering the contested issues surrounding the Bonilla statement. If Sanitation is found to have dropped the salmon skin on the sidewalk, then there is duty to plaintiff under Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002) because Sanitation, in failing to exercise reasonable care in the performance of its duties, launched a force or instrument of harm.

SMHS also established prima facie that it cannot be held liable for plaintiff's injuries on the ground that it negligently maintained a trench drain at the premises near where plaintiff's accident occurred, which caused the drain to become clogged and overflow, pushing fish debris (which the...