Ruggiero v. Cardella Trucking Co.

• Decision Date: 31 March 2005
• Docket Number: 5187.
• Citation: 793 N.Y.S.2d 337,2005 NY Slip Op 02535,16 A.D.3d 342
• Parties: MICHAEL RUGGIERO, Respondent, v. CARDELLA TRUCKING CO., Appellant, and NEW YORK HOSPITAL, Respondent.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 342

793 N.Y.S.2d 337

2005 NY Slip Op 02535

MICHAEL RUGGIERO, Respondent, v. CARDELLA TRUCKING CO., Appellant, and NEW YORK HOSPITAL, Respondent.

5187.

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

March 31, 2005.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 27, 2003, which, to the extent appealed from, denied so much of defendant Cardella's cross motion as sought summary judgment dismissing defendant New York Hospital's cross claim, and which also denied defendant hospital's motion for summary judgment dismissing plaintiff's remaining cause of action against it under Labor Law § 241 (6), unanimously reversed, on the law, without costs, Cardella's cross motion granted, and, upon a search of the record, plaintiff's Labor Law § 241 (6) claim against the hospital dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff, an employee of the construction manager of a renovation project at defendant hospital, was injured when a dumpster cart furnished by defendant Cardella tipped over onto him, allegedly because of a defective wheel, as he was pulling it up a ramp to be hauled away. Plaintiff initially brought this action against both the hospital and Cardella, but subsequently discontinued it voluntarily as against Cardella.

Following discovery, the hospital moved and Cardella cross-moved for summary judgment dismissing plaintiff's claims and the respective cross claims asserted against them. The court granted the hospital's request to dismiss Cardella's cross claim for contribution or indemnification, without opposition. The court also dismissed plaintiff's claims under Labor Law §§ 200 and 240 (1) and his common-law negligence claim, without opposition. However, the court denied that branch of the hospital's motion for summary judgment dismissing plaintiff's claim that the hospital had violated section 241 (6) for failure to comply with Industrial Code (12 NYCRR) § 23-1.28 (b), which mandates that "[w]heels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicles." The court denied as moot Cardella's similar request for summary judgment dismissing plaintiff's section 241 (6) claim based on plaintiff's discontinuance of the action as against it. Finally, the court denied that branch of Cardella's cross motion for summary judgment dismissing the hospital's cross claim for indemnification.

The hospital has not appealed from that part of the order denying its request for summary dismissal of the remaining section 241 (6) claim, and Cardella only appeals from that part of the order which denied summary judgment dismissing the hospital's cross claim for indemnification. In response to Cardella's appeal, the hospital argues that if we find that its cross claim against Cardella should have been dismissed, then, "by operation of law, plaintiff cannot establish a prima facie case against the Hospital either." In that case, the hospital requests that we grant it summary judgment dismissing plaintiff's remaining cause of action on a search of the record.

The section 241 (6) cause of action should have been dismissed for lack of nonspeculative evidence, in admissible form, that one of the cart's wheels was defective (see Tungsupong v Bronx-Lebanon Hosp. Ctr., 213 AD2d 236, 238 [1995]). Cardella met its burden of proof as the proponent of summary judgment by tendering evidentiary proof in admissible form (see Friends of Animals v...