Garcia v. J.C. Duggan, Inc.

• Decision Date: 27 February 1992
• Citation: 180 A.D.2d 579,580 N.Y.S.2d 294
• Parties: Rafael GARCIA and Rosalina Garcia, Plaintiffs-Appellants, v. J.C. DUGGAN, INC., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 294

580 N.Y.S.2d 294

180 A.D.2d 579

Rafael GARCIA and Rosalina Garcia, Plaintiffs-Appellants, v. J.C. DUGGAN, INC., Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 27, 1992.

Before CARRO, J.P., and MILONAS, ROSENBERGER and ASCH, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, Bronx County (Alan J. Saks, J.), entered on December 19, 1990, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs' cross-motion for costs and sanctions for defendant's making of a frivolous and harassing motion, is unanimously modified on the law to the extent of denying defendant's motion for summary judgment and otherwise affirmed, with costs and disbursements.

Plaintiff-appellant Rafael Garcia, who was employed by Capitol Knitting Mills Corp., which hired defendant-respondent J.C. Duggan, Inc., a moving company, to transport some knitting machines from Manhattan to Newark, New Jersey, was supervising Capitol Knitting's part of the job. In that regard, he was engaged in ensuring that the equipment would be put in the proper locations. Duggan's staff was moving each machine, varying in diameter from three to seven feet and weighing up to four thousand pounds, separately by dollie. Duggan's employees removed the machines from the dollies, placed them on the floor and pushed them where they belonged. At one point, plaintiff noticed that one of the machines was not correctly positioned. Duggan's workers purportedly requested plaintiff's assistance in pushing or sliding it across the floor. In the course of helping to move the machine, he supposedly sustained a herniated disk and related injuries, and this negligence action ensued.

Defendant subsequently moved for summary judgment dismissal, urging that plaintiff was acting purely as a volunteer when he suffered his injuries and, thus, had no right of recovery. Plaintiffs (his wife is suing for loss of services) rejected the argument that Rafael Garcia had been a volunteer and cross-moved for sanctions for defendant's allegedly making a frivolous motion. However, in granting Duggan's motion to dismiss, the Supreme Court observed that the only thing entailed by plaintiff's responsibility in seeing that the equipment was delivered and properly installed "was pointing out to defendant's workers where each machine was to be placed. When plaintiff went further and actually assisted in the positioning process he was acting as a volunteer. It was not his job nor was it ever contemplated that he would engage in the physical activity which defendant was specifically hired to do. Plaintiff's act of assistance was a totally unforeseeable event for which the defendant cannot be charged with negligence for failure to provide proper equipment or sufficient manpower." The court's conclusion in that respect was in error. The standard for ascertaining whether summary judgment is warranted is well-established. As this court recently stated in Dauman Displays, Inc. v. Masturzo, 168 A.D.2d 204, 205, 562 N.Y.S.2d 89, appeal dismissed, 77 N.Y.2d 939, 569 N.Y.S.2d 612, 572 N.E.2d 53:

Issue finding, not issue...