Vega v. Restani Constr. Corp..

• Citation: 901 N.Y.S.2d 51,2010 N.Y. Slip Op. 04503,73 A.D.3d 641
• Parties: Minerva VEGA, Plaintiff–Respondent,v.RESTANI CONSTRUCTION CORP., et al., Defendants,General Fence Corporation, Defendant–Appellant.
• Decision Date: 27 May 2010
• Court: New York Supreme Court Appellate Division

73 A.D.3d 641

901 N.Y.S.2d 51

2010 N.Y. Slip Op. 04503

Minerva VEGA, Plaintiff–Respondent,

v.RESTANI CONSTRUCTION CORP., et al., Defendants,General Fence Corporation, Defendant–Appellant.

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

May 27, 2010.

O'Connor Redd, LLP, White Plains (Alak Shah of counsel), for appellant.Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for respondent.MAZZARELLI, J.P., SWEENY, CATTERSON, FREEDMAN, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered February 27, 2009, which, in an action for personal injuries allegedly sustained when plaintiff maintenance worker attempted to move a garbage can containing improperly discarded concrete blocks, denied the motion of defendant General Fence Corporation (GFC) for summary judgment dismissing the complaint and all cross claims as against it, affirmed, without costs.

GFC, the fencing subcontractor on a project to renovate the park where plaintiff worked, established prima facie entitlement to summary judgment through an affidavit from its principal, who averred that GFC, hired by the park's owner, did not create the condition alleged to have caused plaintiff's accident ( see Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257, 848 N.Y.S.2d 585, 878 N.E.2d 1001 [2007]; Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002]; Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ). Plaintiff however, raises a triable issue of fact with regard to whether GFC created the overloading condition alleged, insofar as the evidence proffered shows that prior to the date of the accident GFC and the general contractor had exclusive control over the park, including the area where the subject garbage can was located, and that GFC's work may have involved the breaking-up and removal of concrete. Accordingly, the existence of triable issues of fact, albeit circumstantially, precludes the dismissal of the complaint as against GFC ( see Koeppel v. City of New York, 205 A.D.2d 402, 403, 613 N.Y.S.2d 389 [1994] ).

Any claim that, even if proven, GFC's conduct in overloading the garbage can not be tantamount to negligence is without merit (12 NYCRR 23–2.1[b]; Palladino v. United States Lines, 111 A.D.2d 656, 490 N.Y.S.2d 493 [1985] [cause of action for the overloading of containers, allegedly causing injury to the plaintiff was viable predicate mandating defense by insurance company]; Keating v. Cookingham, 223 A.D.2d 997, 636 N.Y.S.2d 903 [1996] [court recognized cause of action for injury to the plaintiff resulting from the overloading of garbage cans but dismissed action for other grounds] ).

In support of its position, the dissent conflates two distinct points of law, neither of which, on the record here, mandates summary judgment in GFC's favor. It is true that generally an employee cannot sue for injuries caused by conditions inherent in the work he is tasked to perform ( Imtanios v. Goldman Sachs, 44 A.D.3d 383, 385–386, 843 N.Y.S.2d 569 [2007], lv. dismissed 9 N.Y.3d 1028, 852 N.Y.S.2d 11, 881 N.E.2d 1198 [2008] ). It is also true that “[w]hen a workman confronts the ordinary and obvious hazards of his employment, and has at his disposal the time and other resources (e.g., a co-worker) to enable him to proceed safely, he may not hold others responsible if he elects to perform his job so incautiously as to injure himself” ( Abbadessa v. Ulrik Holding, 244 A.D.2d 517, 518, 664 N.Y.S.2d 620 [1997], lv. denied 91 N.Y.2d 814, 676 N.Y.S.2d 127, 698 N.E.2d 956 [1998]; see also Marin v. San Martin Rest., 287 A.D.2d 441, 442, 731 N.Y.S.2d 70 [2001]; Keating at 998, 636 N.Y.S.2d 903). However, contrary to the dissent's finding, on this record, there is no evidence supporting the conclusion that plaintiff's job entailed the handling of very heavy garbage cans so as to conclude that the accident was caused by a condition inherent in her work. Moreover, the evidence demonstrates that the condition alleged, namely heavy chunks of cement in the garbage can plaintiff attempted to move, was obscured, and thus not obvious or visible. Accordingly, since there is no evidence that she confronted an obvious hazard and nevertheless chose to perform her job without the aid of resources available to her, there is no support for the dissent's position that this action warrants dismissal pursuant to Abbadessa, Marin, or Keating.

We have considered GFC's remaining arguments and find them unavailing.

All concur except CATTERSON, J. who dissents in a memorandum as follows:CATTERSON, J. (dissenting).

I would reverse and dismiss the complaint against General Fence Corporation (hereinafter referred to as “GFC”) primarily on the grounds that precedent mandates dismissal of a complaint where the hazard of the injury sustained is inherent in a plaintiff's employment. Furthermore, in my opinion, GFC is entitled to summary judgment, as a matter of law, as the plaintiff failed to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. Indeed, as GFC asserts, the plaintiff did not provide any factual basis for her allegation that a cement block was in the garbage can on the day of the accident, much less that it was placed there by GFC. Therefore, for the reasons set forth below, I must respectfully dissent.

The plaintiff, Minerva Vega, a maintenance worker employed by the New York City Parks Department at Loreto Park, in the Bronx, claims she injured her shoulder when she attempted to move a garbage can allegedly containing a cement block. The plaintiff's duties included sweeping, taking out garbage and moving garbage cans to the front of the park for pickup by the Sanitation Department.

The defendant Restani Construction Corp. was the general contractor retained by the Parks Department to perform renovation work at the park in May 2002. GFC was the fencing subcontractor, and defendant Excellent Asphalt Paving was the painting and sealing subcontractor on the project.

The plaintiff worked inside the park until construction started. Before she was injured, she saw workers in the park breaking up concrete to fix the benches in the handball court and by the main entrance fence. After construction was completed, the plaintiff resumed her duties inside the park on May 26, 2002. Two days later, on May 28, 2002, the plaintiff was working with two coworkers when she attempted to move a garbage can and felt a tear in her left shoulder. One to two weeks later, the plaintiff went to the park with an investigator from her attorney's office. The investigator took photographs of a concrete block in one of the garbage cans at the entrance to the park.

The plaintiff commenced this action alleging that her injury was proximately caused by the defendants' negligence in improperly disposing of construction debris. GFC denied the allegations, and cross-claimed against Restani and Excellent Asphalt. Subsequently, GFC moved for summary judgment dismissing the complaint and all cross claims against it.

In support of the motion, GFC submitted, inter alia, the deposition testimony of the plaintiff, and of Restani's project manager, and an affidavit of GFC's principal, Dalton Johnson. GFC argued that according to the plaintiff's testimony, and upon presentation of photos of the cement block in the garbage can, taken approximately two weeks after the accident, the plaintiff was unable to provide any factual basis for the allegation against it.

In opposition to the motion, the plaintiff submitted, inter alia, the affidavits of her coworkers in which they swore, in direct contradiction of the plaintiff's testimony, that each had looked in the garbage can on the day of the accident and had seen “pieces” or “chunks” of concrete. Both speculated in their affidavits that the concrete “had to have come” from the construction work.

The court denied GFC's motion for summary judgment. The court held that GFC had failed to address the affidavit of plaintiff's coworker, Jackie Diaz, who stated that until the date of the accident, the defendants had exclusive possession and access to the park and area where the garbage can was found. The court stated that this affidavit “perhaps” raised res ipsa issues that could only be answered at trial.

On appeal, GFC argues that the motion court's reliance on res ipsa loquitur was in error; that the plaintiff did not have a factual basis to meet her burden of proof; and that the plaintiff does not have a viable cause of action in negligence.

I agree. As a threshold matter, I believe precedent mandates the dismissal of the complaint as against GFC. The plaintiff alleges that she sustained her injury as a result of the weight of the garbage can. In my opinion, this was an “ordinary and obvious” hazard of the plaintiff's duties, and thus, in accordance with case law, the cause of action is not viable because the hazard of injury was inherent in the plaintiff's employment. See Anderson v. Bush Indus., 280 A.D.2d 949, 720 N.Y.S.2d 699 (4th Dept.2001) (hazard of injury from repeatedly lifting heavy boxes and loading them onto truck inherent in the work of a UPS driver). Specifically, it is well established that workers involved in trash or garbage removal and/or cleanup have no cause of action for confronting an ordinary and obvious hazard of employment such as falling or slipping on debris or injury from lifting a heavy garbage bag. See Jackson v. Board of Educ. of City of N.Y., 30 A.D.3d 57, 812 N.Y.S.2d 91 (1st Dept.2006) (Sullivan, J.) (complaint dismissed where the plaintiff slipped on lettuce leaf on floor he was hired to sweep and clean); Imtanios v. Goldman Sachs, 44 A.D.3d 383, 843 N.Y.S.2d 569 (1st Dept.2007), lv. dismissed, 9 N.Y.3d 1028, 852 N.Y.S.2d 11, 881 N.E.2d 1198 (2008) (porter carrying trash to freight elevator had to walk through area of discarded computer...