Vargas v. Crown Container Co.

• Decision Date: 13 February 2014
• Citation: 980 N.Y.S.2d 500,114 A.D.3d 762,2014 N.Y. Slip Op. 00988
• Parties: Pedro VARGAS, etc., et al., respondents, v. CROWN CONTAINER CO., INC., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 762

980 N.Y.S.2d 500

2014 N.Y. Slip Op. 00988

Pedro VARGAS, etc., et al., respondents,

v.CROWN CONTAINER CO., INC., et al., appellants, et al., defendants.

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

Feb. 13, 2014.

Jeffrey Samel, New York, N.Y. (Robert G. Spevack of counsel), for appellants.

The Edelsteins, Faegenburg & Brown, LLP, New York, N.Y. (Paul J. Edelstein of counsel), for respondents.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for conscious pain and suffering and wrongful death, etc., the defendants Crown Container Co., Inc., Crown Container Waste Services Corp., Crown Container Transfer Station Co., Inc., and Ashim Ali appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated June 20, 2012, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Crown Container Co., Inc., Crown Container Transfer Station Co., Inc. and Ashim Ali, and substituting therefor provisions granting those branches of the motion, and (2) by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the cause of action to recover damages based on negligent spoliation of evidence insofar as asserted against the defendant Crown Container Waste Services Corp., and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs' decedent was employed as a helper on a private garbage truck owned by the decedent's employer, the defendant Crown Container Co., Inc. (hereinafter CCC), and operated by a coworker, the defendant Ashim Ali. The decedent sustained fatal injuries when the truck allegedly “shot” backward and pinned him against a garbage dumpster. The plaintiffs, the administrator of the decedent's estate and the decedent's infant son, by his mother and natural guardian, Veronica Ortega, commenced this action to recover damages for personal injuries and wrongful death against multiple defendants, including CCC, Crown Container Transfer Station Co., Inc. (hereinafter CC Transfer), Crown Container Waste Services Corp. (hereinafter CC Waste), and Ali. All of the Crown Container entities are owned and operated by the same individuals. Those entities and Ali (hereinafter collectively the appellants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the motion.

The appellants demonstrated their prima facie entitlement to judgment as a matter of law with respect to those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against CCC and Ali based on the exclusivity provisions of the Workers' Compensation Law ( seeWorkers' Compensation Law §§ 11, 29[6]; Weiner v. City of New York, 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 970 N.E.2d 427;Gonzales v. Armac Indus., 81 N.Y.2d 1, 8, 595 N.Y.S.2d 360, 611 N.E.2d 261;O'Rourke v. Long, 41 N.Y.2d 219, 222, 391 N.Y.S.2d 553, 359 N.E.2d 1347). In opposition to the motion, the plaintiffs failed to raise a triable issue of fact. Veronica Ortega, through her deposition testimony, confirmed that she was awarded benefits for the workers' compensation claim she made on behalf of the decedent's infant son in connection with the decedent's death. Therefore, workers' compensation was the plaintiffs' exclusive remedy with respect to CCC and Ali ( see Myung Sook Cho–Oh v. Choi, 102 A.D.3d 755, 957 N.Y.S.2d 873;Goode v. Woodside, 74 A.D.3d 1279, 1280–1281, 904 N.Y.S.2d 196;Castro v. Salem Truck Leasing, Inc., 63 A.D.3d 1095, 1096, 882 N.Y.S.2d 283;Beaucejour v. General Linen Supply & Laundry Co., Inc., 39 A.D.3d 444, 444, 833 N.Y.S.2d 228;Villatoro v. Grand Blvd. Realty, Inc., 18 A.D.3d 647, 647–648, 795 N.Y.S.2d 637;Hernandez v. Yonkers Contr. Co., 292 A.D.2d 422, 424, 739 N.Y.S.2d 723;Kuznetz v. County of Nassau, 229 A.D.2d 476, 645 N.Y.S.2d 520). To the extent that the plaintiffs contend that CCC is estopped from relying upon the exclusivity provisions of the Workers' Compensation Law because of its alleged “fraud” in hiring employees “off the books,” that contention is without merit ( see Baljit v. Suzy's Dept. Store, 211 A.D.2d 555, 621 N.Y.S.2d 76;see alsoWorkers' Compensation Law § 54 [4]; Murray v. City of New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560).

The appellants also established their prima facie entitlement to judgment as a matter of law...