Mohammed v. Islip Food Corp.

• Decision Date: 19 December 2005
• Docket Number: 2004-01981.
• Citation: 24 A.D.3d 634,808 N.Y.S.2d 389,2005 NY Slip Op 09694
• Parties: DAVID MOHAMMED, Appellant, v. ISLIP FOOD CORP., Doing Business as C-TOWN SUPERMARKET, et al., Respondents, 2-32C WHEELER ROAD, INC., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

24 A.D.3d 634

808 N.Y.S.2d 389

2005 NY Slip Op 09694

DAVID MOHAMMED, Appellant, v. ISLIP FOOD CORP., Doing Business as C-TOWN SUPERMARKET, et al., Respondents 2-32C WHEELER ROAD, INC., Appellant, et al., Defendants.

2004-01981.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 19, 2005.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated January 27, 2004, as granted those branches of the cross motion of the defendant Islip Food Corp., doing business as C-Town Supermarket, which were for summary judgment dismissing the causes of action based on common-law negligence and a violation of Labor Law § 200 insofar as asserted against it, and granted those branches of the separate cross motions of defendants Krasdale Foods, Inc., and Sam Infantino Wholesale Produce Inc., which were for summary judgment dismissing the amended complaint insofar as asserted against them, and the defendant 2-32C Wheeler Road, Inc., separately appeals, as limited by its notice of appeal and brief, from so much of the same order as denied that branch of its motion which was for conditional summary judgment on its claim for common-law indemnification against Islip Food Corp., doing business as C-Town Supermarket.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the defendant Islip Food Corp., doing business as C-Town Supermarket, payable by the defendant 2-32 Wheeler Road, Inc., and one bill of costs to the defendants Islip Food Corp., doing business as C-Town Supermarket, Sam Infantino Wholesale Produce, Inc., and Krasdale Foods, Inc., payable by the plaintiff, upon searching the record, summary judgment is awarded to the defendant Islip Food Corp., doing business as C-Town Supermarket, dismissing the cross claim of the defendant 2-32C Wheeler Road, Inc., for common-law indemnification insofar as asserted against it, and so much of the order as denied that branch of the cross motion of the defendant Islip Food Corp., doing business as C-Town Supermarket, which was for summary judgment dismissing the cross claim of the defendant 2-32C Wheeler Road, Inc. for common-law indemnification insofar as asserted against it is vacated, that branch of that cross motion is granted, and the cross claim of the defendant 2-32C Wheeler Road, Inc., for common-law indemnification insofar as asserted against the defendant Islip Food Corp., doing business as C-Town Supermarket is dismissed.

The defendant 2-32C Wheeler Road, Inc. (hereinafter the landlord), leased premises to the defendant Islip Food Corp., doing business as C-Town Supermarket (hereinafter C-Town), which C-Town operated as a supermarket. C-Town contracted with the plaintiff's employer, Your Town Cesspool Plumbing and Heating Corp. (hereinafter Your Town), for the installation of an auxiliary cesspool on the premises. To install the auxiliary cesspool tank, on the afternoon of July 2, 1999, the plaintiff and another employee of Your Town, Richard Baldwin, dug a trench near a loading dock platform used by trucks to make deliveries to C-Town. The plaintiff and Baldwin placed red safety cones around the trench so that no one would walk or drive in the immediate area. The plaintiff was then lowered into the unshored trench using the bucket of a backhoe, which Baldwin was operating approximately four feet from the edge of the trench. While in the trench, the plaintiff used a steel sledgehammer to make a hole in the existing cesspool, and then laid a new pipe. As the plaintiff was working, one wall of the trench collapsed, burying him up to his waist and allegedly causing injuries to his knees.

The plaintiff commenced the instant action, alleging, inter alia, that delivery trucks operated by certain of the defendants, including Krasdale Foods, Inc. (hereinafter Krasdale), and Sam Infantino Wholesale Produce, Inc. (hereinafter Infantino), were permitted to operate and remain with their engines idling for an extended period of time in proximity to the...