Genco v. City of New York
| Decision Date | 09 January 1995 |
| Citation | 621 N.Y.S.2d 627,211 A.D.2d 615 |
| Parties | Carolyn GENCO, Respondent, v. CITY OF NEW YORK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and Merril Schapiro Biscone, of counsel), for appellant.
Dansker & Aspromonte Associates, New York City (Paul Dansker, of counsel), for respondent.
Before MILLER, J.P., and LAWRENCE, RITTER and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Kings County (Bernstein, J.), entered November 25, 1992, which is in favor of the plaintiff and against it in the principal sum of $500,000. The appeals bring up for review so much of an order of the same court, dated June 15, 1992, as denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the judgment is reversed, on the law and the facts, with costs, that portion of the order dated June 15, 1992, as denied the defendant's motion for summary judgment is vacated, and the complaint is dismissed.
The plaintiff, an employee of the New York City Transit Authority, was injured when pallets of subway-car wheels, which were being lifted by a forklift, tipped, causing the wheels to fall on her legs. The plaintiff brought this action against the City of New York, as the owner of the subway system, alleging negligence and a violation of Labor Law § 240(1).
The cause of action pursuant to Labor Law § 240(1) must be dismissed because the accident at issue did not arise from the type of elevation-related risk contemplated by the statute (see, Rodriguez v. Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 616 N.Y.S.2d 900, 640 N.E.2d 1134; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932; Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 609 N.Y.S.2d 322).
Further, the negligence cause of action against the City must also be dismissed. On the facts of this case, the City, as an out-of-possession lessor of the subway system which retained no right to supervise or control its operation, cannot be held liable in negligence for the plaintiff's injuries (see, D'Avila v. City of New York, 205 A.D.2d 729, 613 N.Y.S.2d 435; Matera v. City of New York, 169 A.D.2d 759, 565 N.Y.S.2d 126).
To continue reading
Request your trial
-
Everhome Mortg. Co. v. Charter Oak Fire Ins. Co.
... ... 07-CV-98 (RRM)(RML) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Dated: March 14, 2012 MEMORANDUM AND ORDER ROSLYNN R. MAUSKOPF, United States District Judge ... Twin City Fire Ins. Co., No. 04-CV-10299, 2007 WL 2936321, at *2 (S.D.N.Y. Sep. 17, 2007) ("New York ... ...
-
Wozniak v. City of N.Y.
...operation, cannot be held liable under a common-law theory of negligence for the plaintiff's injuries. (Genco v. City of New York, 211 A.D.2d 615, 616, 621 N.Y.S.2d 627 [2d Dept 1995].) Plaintiff's contention that the NYPD had a key to the area does not raise a triable issue of fact as to w......
-
Smith v. Benderson, RB-3
...Plaza Assocs., 214 A.D.2d 526, 625 N.Y.S.2d 234, lv. denied 86 N.Y.2d 707, 634 N.Y.S.2d 441, 658 N.E.2d 219; Genco v. City of New York, 211 A.D.2d 615, 621 N.Y.S.2d 627, lv. denied 85 N.Y.2d 806, 627 N.Y.S.2d 323, 650 N.E.2d 1325; Schreiner v. Cremosa Cheese Corp., 202 A.D.2d 657, 609 N.Y.S......
-
Joblon v. Solow
...unanimously affirmed with costs. Id. Some of the decisions turn on whether the risk is "elevation-related", Genco v. City of New York, 211 A.D.2d 615, 621 N.Y.S.2d 627 (2d Dep't), leave to appeal denied 85 N.Y.2d 806, 627 N.Y.S.2d 323, 650 N.E.2d 1325 (1995), a consideration which returns t......