Castellanos v. Moffitt
| Decision Date | 21 October 2021 |
| Docket Number | Index 2018-53063 |
| Citation | 2021 NY Slip Op 32939 (U) |
| Parties | DIOSCORO LAVARIEGA CASTELLANOS and INES MENDOZA, Plaintiffs, v. DOUGLAS J. MOFFITT d/b/a SOLVANG TREE FARM, and TRIPLE J VENDING, LLC, Defendants, DOUGLAS J. MOFFITT, Third-Party Plaintiff, v. JUAN DEDIOS LAVARIEGA MENDOZA, Third-Party Defendant. Motion Sequence Nos. 2-4 |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION & ORDER
The Court read and considered the following documents in determining the motions for summary judgment submitted by defendants Triple J Vending, LLC (Sequence No. 2) and Douglas J. Moffitt (Sequence No. 3), as well as the plaintiffs' cross-motion for summary judgment (Sequence No. 4):
NYSCKK Docket Numbers
Motion Sequence No. 2: 62 - 86, 113, 114, 119 - 121
On or about April 28, 2018, plaintiff Dioscoro Lavariega Castellanos suffered serious physical injury when his hand got caught in a log splitter that he and third-party defendant Juan Dedios Lavariega Mendoza (who is the plaintiffs son) were using on property jointly owned by defendant Douglass J Moffitt ("Mofillt") and Jennifer Jorgenscn ("Jorgcnscn"), a member of defendant Triple J Vending, LLC ("Triple J'').The plaintiffs commenced this action with the filing of a summons and complaint on October 1, 2018. A first amended complaint was filed on February 15, 2019 followed by a second amended complaint on May 6, 2019. The second amended complaint asserted causes of action sounding in negligence against each of the defendants. Triple .1 and Moffitt served their answers to the second amended complaint on May 7, 2019 and May 16 2019, respectively. Defendant Moffitt commenced a third-party action against the third-party defendant on or about October 3, 2019. Third-party defendant appeared in the action, pro se, by service of a verified answer to the third-party complaint on May 21, 2020.
After the completion of discovery and filing of the note of issue, Triple J moved, by notice of motion dated February 8, 2021, for summary judgment dismissing the second amended complaint insofar as asserted against it (Motion Sequence No. 2). On February 9, 2021, Moffitt also moved for summary judgment dismissing the second amended complaint insofar as asserted against him (Motion Sequence No. 3). The plaintiffs opposed the defendants' motions and, by notice of cross-motion dated March 16, 2021, moved for an order granting summary judgment against Moffitt and third-party defendant (Motion Sequence No. 4). For the reasons set forth herein, Triple Ts motion is granted, MoffitTs motion is granted in part and denied in part, and the plaintiffs' cross-motion is denied.
The accident at issue in this litigation occurred on April 28 2018 at 80 Bedell Road, Poughkecpsic, New York (hereinafter "the Property"). The Property is owned by Moffitt and Jorgensen. The plaintiff had performed landscaping and yard work on the Properly for 15 years prior to the date of the incident [see Triple J Statement of Material Facts, NYSCEF Docket No. 83, ¶2]. Third-party defendant also had performed landscaping work on the Property for several years prior to the incident [id. at ¶3], The landscaping work performed at the Property included mowing the lawn, gardening, cutting down trees, and other farm work [id. at ¶4], and involved the use of power tools [id. at ¶6].
Triple J is a vending company that owns, maintains, and stocks vending machines at various locations, including colleges and businesses [id. at ¶20]. Moffitl has no ownership interest in Triple J [id. at ¶23]. Triple J maintains a warehouse/office on the Property [id. at ¶21]. Triple J does not sell wood and/or logs as part of its business nor does it use wood and/or logs in its business operations [id. at ¶¶ 41-42], Moffitt owned and operated "Solvang Tree Farm" at the Property [see Plaintiffs' Response to Triple J Statement of Material Facts, NYSCEF Docket No. 114, ¶53]. Moffitt was also an employee of Triple J [id, at ¶54].
After 3 or 4 years of performing landscaping work at the Property, third-party defendant was hired to work as a vending employee for Triple J in the fall of 2017 [Triple .1 Statement of Material Facts, NYSCHF Docket No. 83, ¶10]. 11c was hired as a part-time vending employee and worked approximately 20-25 hours per week [id. at ¶30]. The daily duties of vending employees included picking and placing product in bins, filling each vending machine owned by Triple J at various locations, and collecting money from vending machines [id. at ¶25]. Third-party defendant continued to perform yard work and landscaping on the Property after he was hired by Triple J as a vending employee [id. at ¶11].
On the day of the accident, the log splitter was in a shed on the Property and was moved from the shed to the location where the accident occurred by the plaintiff [id. at ¶ 14]. The plaintiff placed logs on the base of the log splitter and third-party defendant operated the handle that engaged the hydraulic wedge [id. at ¶ 6], Third-party defendant pulled the handle of the log splitter while plaintiffs hand was still in the log splitter [sec Plaintiffs' Response to Triple J Statement of Material Facts, NYSCEF Docket No. 114, ¶53]. Third-party defendant was using the log splitter in contravention of the express warning labels on the log splitter [Triple J Statement of Material Facts, NYSCEF Docket No. 83, ¶15].
Jorgensen was not present on the Property on April 28, 2018 when the plaintiff and third-party defendant were present [id. at ¶34]. Jorgensen did not direct or instruct third-party defendant to perform any work on behalf of Triple J on April 28, 2018 [id. at ¶37]. Jorgensen did not, on behalf of Triple J or otherwise, direct or instruct third-party defendant to move or split any wood or logs located on the Property on April 28, 2018 [id. at ¶46]. Third-party defendant did not report any lime for April 28, 2018 on his Triple J timesheet and was not paid by Triple J for any work done on April 28, 2018 [id. at ¶¶ 39-40], DISCUSSION
Because summary judgment ''deprives the litigant of its day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" [Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974)]. "But when there is no genuine issue to be resolved at trial, the case should be summarily decided" [Id.]. "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 issue of fact" [Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 (1986)]. "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" [Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985)]. ''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" [Alvarez, supra, at 324]. "Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" [Ugaririza v. Schmieder, 46 N.Y.2d 471, 474 (1979); see also Davis v. Federated Depi. Stores, Inc., 227 A.D.2d 514, 515 (2d Dept. 1996)].
It is undisputed that third-party defendant was an employee of Triple J at the time of the accident. In moving for summary judgment, Triple J argues that although third-party defendant was an employee of Triple J, he was not acting within the scope of his employment at the time of the accident.
"Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" [NX v. Cabrini Medical Center, 97 N.Y.2d 247, 251 (2002), citing Rivielio v. Waldron, 47 N.Y.2d 297 (1979)]. "An employee's actions fall within the scope of employment when the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" [Brandford v. Singh, 136 A.D.3d 726, 728 (2d Dept. 2016) (citations omitted)]. "Conversely, where an employee's actions arc taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" [id (citations omitted); see also Fenster v. Ellis, 71 A.D.3d 1079, 1080 (2d Dept. 2010)].
Here Triple J's submissions established, prima facie, that third-party defendant was not acting within the scope of his employment with Triple J at the time of the accident. Triple J's papers, including Jorgensen's deposition testimony [NYSCEF Docket No. 72] and affidavit [NYSCKF Docket No. 79], demonstrated, inter alia, that: during third-party defendant's employment with Triple J, Jorgensen was solely responsible for scheduling and assigning duties to him and other employees [Triple J Statement of Material Facts, NYSCKF Docket No. 83, ¶22]; Triple J employees customarily worked Monday through Friday [id. at ¶28]; any employee of Triple J that wanted to work on a Saturday would have to submit a request to Jorgensen for approval [id. at §31 ]; third-party defendant was not scheduled to work for Triple...
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