Vega v. Restani Constr. Corp.

CourtNew York Court of Appeals
PartiesMinerva VEGA, Respondent, v. RESTANI CONSTRUCTION CORP. et al., Defendants,andGeneral Fence Corporation, Appellant.
Decision Date16 February 2012

18 N.Y.3d 499
2012 N.Y. Slip Op. 01148
942 N.Y.S.2d 13
965 N.E.2d 240

Minerva VEGA, Respondent,
v.
RESTANI CONSTRUCTION CORP. et al., Defendants,andGeneral Fence Corporation, Appellant.

Court of Appeals of New York.

Feb. 16, 2012.


[942 N.Y.S.2d 14]

O'Connor Redd LLP, White Plains (Amy Lynn Fenno of counsel), for appellant.

Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac and Jillian Rosen of counsel), and Law Offices of Stillman & Stillman, Bronx, for respondent.

[18 N.Y.3d 502] OPINION OF THE COURT
Chief Judge LIPPMAN.

[965 N.E.2d 241] We hold that plaintiff, a park maintenance worker, is entitled to a trial on the merits of her claim that a subcontractor's improper disposal of construction debris caused her serious and permanent injuries when, in the course of her employment in a Bronx park, she attempted to move a garbage barrel containing such waste. Whether or not plaintiff will ultimately prevail, she is entitled to present her claim to a trier of fact, and, accordingly, we find that the lower courts correctly denied the summary judgment motion of defendant-appellant General Fence Corporation (GFC).

In 2001, defendant 1 general contractor Restani Construction Corporation (Restani) was awarded a bid to work on the renovation of several Bronx parks, including Loreto Park. Defendant GFC was hired as a subcontractor on the project. [965 N.E.2d 242]

[942 N.Y.S.2d 15]

Plaintiff [18 N.Y.3d 503] Minerva Vega, a park maintenance worker employed by the City of New York Parks and Recreation Department asserts that on the morning of May 28, 2002, when she attempted to pull a trash can from its location in Loreto Park in order to move it to the front entrance for pick up by the New York City Department of Sanitation she was unable to do so and felt a tear in her shoulder.2 Defendant's coworker, Ms. Jackie Diaz averred that “[w]hen I looked in the garbage barrel that day, I saw chunks of cement that could only have come from the [other] workers who were repairing/fixing the park.” Plaintiff commenced the instant action against several defendants, including defendant-appellant GFC, alleging that the “accident occurred wholly as a result of the defendants' negligence without any contributory negligence on [her] part.” The Appellate Division affirmed the Supreme Court's denial of defendant's motion for summary judgment ( 73 A.D.3d 641, 901 N.Y.S.2d 51 [1st Dept.2010] ). The Appellate Division granted defendant GFC's motion for leave to appeal ( 2010 N.Y. Slip Op. 84110[U] [2010] ) and we now affirm.

On a motion for summary judgment, facts must be viewed “in the light most favorable to the non-moving party” ( Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] ). Summary judgment is a drastic remedy, to be granted only where the moving party has “tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact” ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ) and then only if, upon the moving party's meeting of this burden, the non-moving party fails “to establish the existence of material issues of fact which require a trial of the action” ( id.). The moving party's “[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers ” ( id. [emphasis added] ). We conclude that GFC has failed to meet its burden as the moving party and that, in any event, assuming, for the sake of argument, that GFC has met its burden, plaintiff has set forth evidence sufficient to establish that there are genuine issues of material fact necessitating a trial.

Defendant GFC has failed to meet its burden of “demonstrat[ing] the absence of any material issues of fact” ( Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). In its counsel's affirmation in support of its motion for summary judgment, GFC argued that “even had [18 N.Y.3d 504] General Fence placed ... concrete debris into the container (which it denies having done), putting[ ] debris into a garbage container is not an act of negligence upon which plaintiff can base a claim” and that “there is no evidence to support plaintiff's contention that there was a concrete block in the garbage can” and “no evidence that General Fence ... performed any concrete excavation at the site.” The affirmation relied on the affidavit of Dalton Johnson, principal owner of GFC, for the proposition that “General Fence did not place concrete into garbage containers as a general practice and would not have done so at this park if it had in fact performed excavation work.”

As a preliminary matter, we find GFC misapprehends the nature of the alleged circumstances of the accident here. GFC appears to view Ms. Vega's alleged accident as a simple case of injury resulting from placing garbage into a garbage can. [965 N.E.2d 243]

[942 N.Y.S.2d 16]

We disagree. While, as a general premise, the act of throwing ordinary garbage into a designated receptacle is unlikely to be negligent, GFC did not come forward with any evidence establishing that the disposal of construction debris into a public trash can by a subcontractor would not constitute negligence, and the cases on which it relies are distinguishable. A sharp contrast may be drawn between the present allegations of improper disposal of construction debris and the circumstances attendant to a homeowner placing a bulky couch on the curb for collection or park visitors filling a garbage can with common items of trash.

Nor did GFC prove that it did not place construction debris in the trash receptacle. GFC's reliance on Mr. Johnson's affidavit is misplaced. He averred that he did not remember whether GFC disposed of concrete and GFC has not placed any documentation on the record establishing either that it was not involved in the disposal of concrete as a result of its participation in the renovation project at Loreto Park, or, if it was, that the task was properly accomplished (i.e., paid invoices to contractors). Mr. Johnson's failure to recall (and GFC's apparent failure to document) whether it was involved in concrete disposal as part of the Loreto Park project is insufficient to meet GFC's burden of demonstrating that there are no triable issues and that it is accordingly entitled to summary judgment. Additionally, Mr. Sal Restivo, of Restani, testified that he was “not sure” whether concrete was broken during the project and that the only two contractors...

To continue reading

Request your trial
1005 practice notes
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...through admissible evidence eliminating all material issues 48 Misc.3d 279of fact. C.P.L.R. § 3212(b) ; Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012) ; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008) ; JMD H......
  • Dua v. N.Y.C. Dep't of Parks & Recreation, 110344
    • United States
    • United States State Supreme Court (New York)
    • September 20, 2017
    ...353 (2015) ; Voss v. Netherlands Ins. Co. , 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 (2014) ; Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012). Only if the moving parties satisfy this standard, does the burden shift to the opposing parties......
  • Regno v. City of N.Y., Index No. 109524/2009
    • United States
    • United States State Supreme Court (New York)
    • August 31, 2015
    ...a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuf......
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4Page 3N.Y.3d 373, 384 (2005);......
  • Request a trial to view additional results
1008 cases
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...through admissible evidence eliminating all material issues 48 Misc.3d 279of fact. C.P.L.R. § 3212(b) ; Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012) ; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008) ; JMD H......
  • Dua v. N.Y.C. Dep't of Parks & Recreation, 110344
    • United States
    • United States State Supreme Court (New York)
    • September 20, 2017
    ...353 (2015) ; Voss v. Netherlands Ins. Co. , 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 (2014) ; Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012). Only if the moving parties satisfy this standard, does the burden shift to the opposing parties......
  • Regno v. City of N.Y., Index No. 109524/2009
    • United States
    • United States State Supreme Court (New York)
    • August 31, 2015
    ...a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuf......
  • Tuchman v. Deam Props. (Us), LLC, Index No. 101056/2010
    • United States
    • United States State Supreme Court (New York)
    • April 25, 2014
    ...a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4Page 3N.Y.3d 373, 384 (2005);......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT