Montas v. JJC Constr. Corp.

• Decision Date: 23 February 2012
• Parties: Jose MONTAS, Plaintiff–Appellant, v. JJC CONSTRUCTION CORPORATION, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01345
92 A.D.3d 559
939 N.Y.S.2d 354

Jose MONTAS, Plaintiff–Appellant,
v.
JJC CONSTRUCTION CORPORATION, et al., Defendants–Respondents.

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

Feb. 23, 2012.

[939 N.Y.S.2d 354]

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Mitchell Silberberg & Knupp LLP, New York (Lauren J. Wachtler of counsel), for JJC Construction Corporation, respondent.

Michael A. Cardozo, Corporation Counsel, New York (Omar Nasar of counsel), for municipal respondents.TOM, J.P., ANDRIAS, CATTERSON, ACOSTA, RENWICK, JJ.

[92 A.D.3d 559] Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about April 12, 2010, which granted defendants' motions to dismiss the complaint at the close of the evidence, affirmed, without costs.

Plaintiff alleges that he sustained personal injuries when he stepped over a piece of wood and slipped on “sand and

[939 N.Y.S.2d 355]

construction debris” as he was crossing the street with his cousin. Approximately three or more feet to plaintiff's right, separated by a six-ton concrete barrier and chain link fence, was the City and [92 A.D.3d 560] JJC Construction's work site for a project to remove the existing Grand Concourse bridge over East Tremont Avenue and erect a new one, which, among other things, required removing and carting away the old concrete and replacing it with new concrete. Approximately 5 to 10 feet in front of plaintiff was a sidewalk bridge adjacent to a building that, according to JJC's president, was undergoing brick pointing work.

After the close of evidence, the trial court granted defendants' motions for a directed verdict, finding that the testimony of plaintiff and his cousin that the sand on which plaintiff slipped was generated from the cutting and chopping of concrete for the roadway project was “more suggestion than proof,” and was insufficient in light of the defense testimony that the roadway project used brown mason sand and that the white sand on which plaintiff slipped was blown over from the pointing project.

Contrary to the dissent's view, the trial court did not improperly make credibility determinations or decide factual issues when it granted defendants' motions. Rather, it correctly determined that plaintiff's self-serving testimony that JJC's concrete-chopping activities were the source of the greyish-white sand in the street on which he slipped was too speculative to raise an issue of fact.

It was plaintiff's initial burden to show that “defendant['s] negligence was a substantial cause of the events which produced the injury” ( Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ). “ ‘Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury’ ” ( Lynn v. Lynn, 216 A.D.2d 194, 195, 628 N.Y.S.2d 667 [1995], quoting Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828 [1938] ). “Even when there is no requirement for the plaintiff to exclude every other possible cause other than a defendant's breach of duty, ‘the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation’ ” ( McNally v. Sabban, 32 A.D.3d 340, 341, 820 N.Y.S.2d 260 [2006], quoting Lynn, 216 A.D.2d at 195–196, 628 N.Y.S.2d 667).

Plaintiff testified that he knew he slipped on sand because he felt it underneath his foot when he fell down. However, he did not introduce into evidence a sample of the sand on which he slipped. While plaintiff testified that the sand was the result of [92 A.D.3d 561] the chopping of concrete on the roadway project, he conceded that he never worked with concrete or did road work. Plaintiff and his cousin also conceded that they never did any pointing work and that they were not familiar with the dross it created.

Plaintiff's cousin admitted on cross examination that he did not know if the sand residue came from inside or outside the fence surrounding the roadway project. While he speculated that it “could be” that it came from inside the fence, he conceded that he did not know what material plaintiff slipped on. The City's project engineer, called by plaintiff as part of his direct case, testified that there was another project in the vicinity, that he could not

[939 N.Y.S.2d 356]

identify the substance on which plaintiff slipped, and that he had not received any complaints about debris on the street that came from JJC's work site. JJC's president testified that the whitish material on which plaintiff slipped was created by the pointing work. While plaintiff and his cousin both testified that they did not see any work being done on the building adjacent to the sidewalk bridge, plaintiff testified that for the most part he and his friends would gather in the area after 5:00 p.m. or 6:00 p.m. His cousin testified that he was not in the area between 9:30 a.m. and 5:00 p.m. Thus, the facts show that it is just as likely that the accident was caused by debris from the pointing project as by debris from the roadway project, and any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation ( see Siegel v. City of New York, 86 A.D.3d 452, 455, 928 N.Y.S.2d 1 [2011] [“[p]laintiff's unsupported assertion that it could have been defendants' conduit rather than that of Consolidated Edison or the water main break that caused the purported defect is mere conjecture and fails to raise a triable issue of fact”]; Kimball–Malone v. City of New York, 7 A.D.3d 675, 675–676, 777 N.Y.S.2d 513 [2004] [where plaintiff slipped and fell on gravel and sand while ascending flight of stairs in building undergoing renovations, appellant was entitled to summary judgment because “plaintiffs' contention that the appellant, or a contractor it supervised, created the dangerous condition was too speculative to raise an issue of fact”] ).

All concur except TOM, J.P. and ACOSTA, J. who dissent in a memorandum by TOM, J.P. as follows:

TOM, J.P. (dissenting).

Because there is evidence from which the jury could have found that defendants were negligent in permitting construction debris to accumulate on a pedestrian walkway and that such negligence was a proximate cause of plaintiff's injuries, it was error for the trial court to direct a verdict dismissing the complaint for failure to establish a prima facie [92 A.D.3d 562] case. Furthermore, the resolution of factual issues by the court deprived plaintiff of his right to a jury trial.

In September 1999, defendant JJC Construction Corp., under contract with the City, was engaged in demolishing and reconstructing the Grand Concourse overpass and bridge over Tremont Avenue in the Bronx. This work entailed, inter alia, cutting and chopping out the existing concrete roadway, hauling the broken concrete and debris away in dump trucks, and replacing the roadway. The construction area was separated from the street by a six-ton concrete barrier, approximately three feet tall and topped by a wire fence. Plaintiff contends that he sustained injury slipping on sandy debris generated by JJC's demolition of the concrete overpass.

The dispositive issue in this matter is whether the sandy or gritty substance on which plaintiff slipped was the byproduct of the concrete-cutting and concrete-removal operations undertaken by the City's contractor, defendant JJC, as plaintiff alleges, or the cleaning and pointing of brickwork being performed by another, unidentified, contractor at a nearby building, as JJC maintains. The jury heard testimony in support of each theory.

On September 11, 1999, plaintiff and his cousin, Sergio Sanchez, were walking by the construction site when plaintiff noticed a large piece of “two by six” wood approximately five feet long lying on the ground next to the concrete barrier. As plaintiff stepped over the wood, his foot came down on “sand” or “sand and construction debris,” causing him to slip and tear the anterior cruciate ligament and meniscus of

[939 N.Y.S.2d 357]

his right knee. Both plaintiff and his cousin testified that there was a whitish or greyish material, as depicted in...