Ramos v. Powell, 2008 NY Slip Op 32298(U) (N.Y. Sup. Ct. 8/8/2008)

• Decision Date: 08 August 2008
• Docket Number: 0018373/2006,Motion Seq. No. 2,Motion Cal. No. 26
• Citation: 2008 NY Slip Op 32298
• Parties: FLORENTINO ALATORRE RAMOS and JUANA ALATORRE, Plaintiffs, v. SYLVIA ANN POWELL, Defendant. SYLVIA ANN POWELL, Third-Party Plaintiff, v. SHERNOS INC. d/b/a SPIRO'S COFFEE SHOP, Third-Party Defendant.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 32298(U)

FLORENTINO ALATORRE RAMOS and JUANA ALATORRE, Plaintiffs, v. SYLVIA ANN POWELL, Defendant.

SYLVIA ANN POWELL, Third-Party Plaintiff, v. SHERNOS INC. d/b/a SPIRO'S COFFEE SHOP, Third-Party Defendant.

0018373/2006

Motion Cal. No. 26

Motion Seq. No. 2

Supreme Court of the State of New York, Queens County

August 8, 2008

Motion Date: May 21, 2008.

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Plaintiffs Florentino Alatorre Ramos ("plaintiff') and Juana Alatorre commenced this action against defendant/third-party plaintiff Sylvia Ann Powell ("defendant") to recover damages for injuries plaintiff allegedly sustained on August 5, 2006, when the motor vehicle operated by defendant struck plaintiff, a delivery person employed by third-party defendant Shernos Inc. d/b/a Spiro's Coffee Shop ("Spiros"), as he was turning left while riding his bicycle from Pershing Crescent onto Manton Street in Briarwood, New York. Defendant commenced a third-party action against Spiros for contribution and indemnification based upon its alleged negligence in failing to provide proper bicycle equipment.

Pertinent Facts

Plaintiff Ramos is a deliveryman and dishwasher for Spiros, a restaurant located at 138-49 Queens Boulevard, Briarwood, New York, and at the time of the accident, worked the hours of 8:00 a.m. to 4:00 p.m, on Monday through Friday, and from 6:00 a.m. to 5:00 p.m. on Saturday. Spiros provided plaintiff Ramos with a three speed bicycle to make deliveries that was stored at the restaurant. At the time of the accident, plaintiff Ramos had completed the last of fifteen deliveries and was returning to the restaurant when his bicycle was struck by defendant's motor vehicle as he attempted to make a left turn from Pershing Street onto Manton Street in Briarwood, New York. Plaintiff commenced the instant action on August 21, 2006. Defendant commenced the third-party action against Spiros on December 18, 2007, approximately sixteen months after the service of the original complaint, five months after plaintiff Ramos' deposition, and two weeks after the filing of the Note of Issue.

In her third-party amended complaint, defendant alleges that Spiros was negligent in failing to train plaintiff in the proper use and operation of his bicycle when making deliveries for Spiros; in failing to supervise plaintiff's deliveries; in failing to instruct or provide plaintiff with information on bicycle traffic rules and regulations; in creating a work environment that encouraged and/or necessitated plaintiff's circumvention of the traffic laws in order to make timely deliveries; in offering incentives that motivated plaintiff to make deliveries as fast and expeditiously as possible; and in filing to provide property safety equipment. Spiros now moves for summary judgment dismissing the third-party complaint on the ground that Spiros was under no duty to provide plaintiff Ramos with proper bicycle equipment or to supervise him in the ordinary activity of bicycle riding inherent in his job. Spiros further seeks dismissal on the ground that plaintiff Ramos did not sustain a grave injury pursuant to Workers' Compensation Law § 11. In opposition, defendant/third-party plaintiff addresses only the issues of the duty to provide a helmet and "grave injury;" thus, all other theories of liability are presumed to be abandoned.

Discussion

It is beyond cavil that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1^st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2^nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See Zuckerman v. City of New York, supra. Once the moving party makes a prima facie showing of entitlement to summary judgment in their favor, it is incumbent upon the opposing party to come forth with evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact. Chalasani v. State Bank of India, New York Branch, 283 A.D.2d 601 (2^nd Dept. 2001); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Pagan v. Advance Storage and Moving, 287 A.D.2d 605 (2^nd 2001); Gardner v. New York City Transit Authority, 282 A.D.2d 430 (2^nd Dept. 2001).

The initial question in a negligence action is whether a duty of care is owed to the injured party. See, Church ex rel. Smith v. Callanan Industries, Inc., 99 N.Y.2d 104 (2002); Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136 (2002); Eaves Brooks Costume Co., Inc. v. Y.B.H. Realty Corp., 76 N.Y.2d 220 (1990); Sheila C. v. Povich, 11 A.D.3d 120 (1^st Dept. 2004). To prove a prima facie case of negligence, there must be a demonstration of the existence of a duty, a breach of that duty, and such breach was a proximate cause of the injury. See, Fernandez v. Elemam, 25 A.D.3d 752 (2^nd Dept. 2006); Edwards v. Mercy Home for Children & Adults, 303 A.D.2d 543, 544 (2^nd Dept. 2003). "In the absence of a duty, there is no breach and no liability (citations omitted)." Coral v. State, 29 A.D.3d 851 (2^nd Dept. 2006). "Although juries determine whether and to what extent a particular duty was breached," [Daubert v. Flyte Time Regency Limousine, 1 A.D.3d 395, 396 (2^nd Dept. 2003)], the existence and scope of that duty are legal questions for the courts to determine. See, 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ca., Inc., 96 N.Y.2d 280 (2002); Solan v. Great Neck Union Free School Dist., 43 A.D.3d 1035 (2^nd Dept. 2007).

Here, defendant contends that Spiros owed a duty to provide a helmet to plaintiff and properly train him as he was engaged in making bicycle deliveries during the course of his employment. Spiro has made a prima facie showing of its entitlement to summary judgment dismissing the third-party complaint on the ground that it was under no duty to provide plaintiff Ramos with proper bicycle equipment or to supervise him in the ordinary activity of bicycle riding inherent in his job. In opposition, defendant has failed to raise triable issues to defeat the motion. New York City Code § 10-157, entitled "Bicycles used for commercial purposes," states in pertinent part, the following:

e.(1) The owner of any business engaged in providing a service as authorized in this section shall provide, at its own expense, protective headgear suitable for each bicycle operator. Such headgear shall:

(i) meet the standards set forth by the consumer product safety commission in title 16, part 1203 of the code of federal regulations; (ii) be readily available at each employment site for use by each bicycle operator; and

(iii) be replaced if such headgear is no longer in good condition. Headgear is no longer in good condition if it is missing any of its component parts or is otherwise damaged so as to impair its functionality.

(2) Each bicycle operator shall wear protective headgear that meets the requirements of paragraph 1 of this subdivision while making deliveries or otherwise operating a bicycle on behalf of such business. The term "wear such protective headgear" means having the headgear fastened securely upon the head with the headgear straps.

Notwithstanding defendant's reliance upon the aforementioned section to impose a duty upon Spiro based upon its failure to provide a helmet to plaintiff during the course of his employment, the mandate on business owners to provide delivery persons with, inter alia, helmets pursuant to New York City Code § 10-157, became effective on July 26, 2007, almost one year after the August 5, 2006 accident. Thus, this section cannot serve as a basis for Spiro' s liability, as it had no duty to provide such protective headgear at the time of the incident.

Moreover, Spiro did not have a duty to supervise or train plaintiff in the ordinary activity of bicycle riding inherent in his job. "[A] party can seek contribution from a plaintiffs employer if the plaintiffs injuries stem in part or in whole from a lack of training or other independent actions on the part of an employer (citations omitted)." Stroschine v. Prudential-Bache Securities, Inc., 207 A.D.2d 828 (2^nd Dept. 1994). However, when an activity is so ordinary and within the ken of the average person, [] there is no duty to provide instruction, warnings and/or assistance in how to perform it' (citations omitted)." Mangiafreno v. Wikstrom Machines, Inc., 243 A.D.2d 690 (2^nd Dept. 1997); see, Lattanzi v. International Business Machines Corp., 237 A.D.2d 259 (2^nd Dept. 1997); [The third-party defendant had no duty to provide the plaintiff Anna Lattanzi with instructions, warnings, or assistance on the performance of tasks which are ordinary and within the ken of the average person]; Camarda v. Summit Homes, 233 A.D.2d 285 (2^nd Dept. 1996)[Since Camarda was engaged in the common and ordinary activity of carrying a ladder at the time he was injured, his employer, the appellant, cannot be held liable for failure to train, instruct, supervise, or direct him in the performance of that activity]; Stroschine v. Prudential-Bache Securities, Inc., 207 A.D.2d 828 (2^nd Dept. 1994)[The undisputed facts show that plaintiff was injured while attempting to plug an extension cord into an electrical outlet located under a desk. This is a task so ordinary and within the ken of the average...