Vega v. Restani Constr. Corp.

Decision Date16 February 2012
Citation18 N.Y.3d 499,942 N.Y.S.2d 13,965 N.E.2d 240,2012 N.Y. Slip Op. 01148
PartiesMinerva VEGA, Respondent, v. RESTANI CONSTRUCTION CORP. et al., Defendants,andGeneral Fence Corporation, Appellant.
CourtNew York Court of Appeals Court of Appeals


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.


Chief Judge LIPPMAN.

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. Plaintiff 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 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. 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 at the site who would have broken concrete were Restani and GFC. Plaintiff testified during her March 11, 2006 deposition that she observed the breaking of “rock” as part of the work performed at the park. In addition, a work order for the renovation project at Loreto Park, dated February 20, 2002, lists [r]emove reinforced concrete” as a task to be completed. Finally, contrary to GFC's assertion in its affirmation, there is record evidence supporting Ms. Vega's allegation that there was concrete in the trash can at the time of her accident. Ms. Diaz stated in her affidavit that she identified concrete in the garbage can on the day of the accident: “Minnie hurt her shoulder trying to move that garbage barrel and never came back to work after that day. When I looked in the garbage barrel that day, I saw chunks of cement.” It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof) ( see Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] [noting that in deciding a motion for summary judgment ‘issue-finding, rather than issue-determination, is the key to the procedure’] [citation omitted] ).

There is a material factual dispute in this case over whether members of the public had access to the park in the days leading up to Ms. Vega's accident. Mr. Restivo testified that Restani finished its work at the park on May 20th. However, there is evidence in the record, in the form of a Punch List, dated May 21, 2002, and a Weekly Progress Report dated May 24, 2002, suggesting that additional work was done after the 20th. During her March 11, 2006 deposition, Ms. Vega testified that she did not enter Loreto Park while the construction project was ongoing, but rather did some cleaning work on the outside of the park during that time. Her testimony also suggested that Loreto Park reopened to the public on May 26th, two days before her accident. When asked when the construction ended and Ms. Vega returned to her normal duties at the park, she replied [t]hat was on the 20, the 26th, the 26th [of May].” However, plaintiffs coworker, Ms. Diaz, averred that [t]he date of Minerva Vega's accident, was our first day back to Loreto Park,” suggesting that the park may not have reopened until the day of the accident. Because GFC has failed to meet its burden of demonstrating that triable issues do not exist as to the identity of the party responsible for the allegedly negligent dumping, we cannot conclude on the basis of this record, that GFC was not responsible for placing the concrete into the garbage can.

GFC urges this Court to find that the risk of injury due to moving very heavy garbage cans was inherent in plaintiff's work and, as such, she is barred from recovery for injuries she sustained when attempting to move the garbage can allegedly made heavy by disposed concrete. This principle is derived from the common-law duty of an “employer ... to provide his employees with a safe place to work” and that duty “does not extend to hazards which are part of or inherent in the very work” being performed ( Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110, 242...

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