Opinion
Index No. CA2014001376
02-10-2023
GARRETT HICKEY, Plaintiff, v. PAUL REGALBUTO and MARY ANN REGALBUTO, Defendants.
Counsel for Plaintiff: KIRWAN LAW FIRM By: Terry J. Kirwan, Jr., Esq. Counsel for Defendants: BATTISTI LAW OFFICES, P.C. By: F. Paul Battisti, Esq.
Unpublished Opinion
Counsel for Plaintiff: KIRWAN LAW FIRM By: Terry J. Kirwan, Jr., Esq.
Counsel for Defendants: BATTISTI LAW OFFICES, P.C. By: F. Paul Battisti, Esq.
PRESENT: HON. EUGENE D. FAUGHNAN Justice Presiding
DECISION AND ORDER
EUGENE D. FAUGHNAN, J.S.C.
This matter is before the Court to consider the motion of Plaintiff, Garrett Hickey ("Hickey"), for summary judgment pursuant to CPLR § 3212. The motion is opposed by Defendants, Paul Regalbuto and Mary Ann Regalbuto. Oral argument was conducted virtually and the attorneys for both parties were present. After due deliberation, this constitutes the Court's Decision and Order.
BACKGROUND FACTS
The basic facts of this case can be easily summarized. On February 4,2012, Hickey and another person were assisting Paul Regalbuto in felling trees on Regalbuto's property, and then cutting the timber for firewood. Regalbuto was directing the two men with regard to the work being done. Regalbuto was operating an excavator, and once a tree had been cut down, Regalbuto used the excavator to move the tree to a pile where it was then cut into firewood. Testimony explained that the excavator cab could rotate 360 degrees and, on at least some occasions Regalbuto was facing in the opposite direction of the way the excavator was moving. While picking up and moving one of the felled trees, he struck Hickey with the excavator. Hickey had apparently stopped behind the excavator to cut a stump down closer to ground level. Hickey testified that Paul Regalbuto had specifically directed Hickey to cut the stump flush to the ground, while Regalbuto testified that he was unaware that Hickey was behind the excavator and cutting the stump.
Plaintiff commenced this action by the filing of a summons and complaint on June 2, 2014, sounding in negligence. Defendants Paul Regalbuto and Mary Ann Regalbuto served an Answer on June 24,2014. Hickey's deposition occurred on March 27,2018 and the depositions of the Paul Regalbuto and Mary Ann Regalbuto were both conducted on July 16,2021.
LEGAL DISCUSSION AND ANALYSIS
When seeking summary judgment, "the movant must establish its prima facie entitlement to judgment as a matter of law by presenting competent evidence that demonstrates the absence of any material issue of fact." Lacasse v. Sorbello, 121 A.D.3d 1241,1241 (3rd Dept 2014) citing Alvarez v. Prospect Hosp, 68 N.Y.2d 320,324 (1986) and Winegrad v. New York Univ. Med Ctr., 64 N.Y.2d 851, 853 (1985) (other citation omitted); see Amedure v. Standard Furniture Co., 125 A.D.2d 170 (3rd Dept. 1987); Bulger v. Tri-Town Agency, Inc., 148 A.D.2d 44 (3rd Dept. 1989), app dismissed 75 N.Y.2d 808 (1990). Such evidence must be tendered in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065,1067-1068 (1979). Once this obligation is met, the burden shifts to the respondent to establish that a material issue of fact exists. Dugan v. Sprung, 280 A.D.2d 736 (3rdDept. 2001); Sheppard-Mobley v. King, 10 A.D.3d 70, 74 (2nd Dept. 2004) affd as mod. 4 N.Y.3d 627 (2005); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Winegrad v. N.Y.Univ. Med Ctr., 64 N.Y.2d 851, 853. "When faced with a motion for summary judgment, a court's task is issue finding rather than issue determination (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,404 [1957]) and it must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact." Boston v. Dunham, 274 A.D.2d 708, 709 (3rd Dept. 2000); see, Boyce v. Vazquez, 249 A.D.2d 724, 726 (3rd Dept. 1998). The motion "should be denied if any significant doubt exists as to whether a material factual issue is present or even if it is arguable that such an issue exists." Haner v. De Vito, 152 A.D.2d 896, 896 (3rd Dept. 1989) (citation omitted); Lacasse v. Sorbello, 121 A.D.3d 1241; Asabor v. Archdiocese of NY, 102 A.D.3d 524 (1st Dept. 2013). It "is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact." Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012) (citation omitted).
To make out a claim for negligence, a plaintiff must "demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v. City of New York, 66 N.Y.2d 1026,1027 (1985) (citation omitted); Vogle v. North Country Prop. Mgt, LLC, 170 A.D.3d 1491,1492 (3rd Dept. 2019); Keating v. Town of Burke, 86 A.D.3d 660,660-661 (3rd Dept. 2011). The "threshold question" in any negligence action is whether a defendant owes "a legally recognized duty of care to plaintiff." Espinal v. Melville Snow Contrs., 98 N.Y.2d 136,138 (2002); Hamilton v. Beretta U.S.A. Corp, 96 N.Y.2d 222,232 (2001); see Pulka v. Edelman, 40 N.Y.2d 781, 782 (1976); Daversa v. Harris, 167 A.D.2d 810, 811 (3rd Dept. 1990). "In the absence of duty, there is no breach and without a breach there is no liability." Pulka, 40 N.Y.2d at 782 (citation omitted); Bacon v. Mussaw, 167 A.D.2d 741, 742 (3rd Dept. 1990) (citation omitted). The existence and scope of duty present a "legal issue for the courts to decide." Oddo v. Queens Vil. Comm. for Mental Health for Jamaica Community Adolescent Program, Inc., 28 N.Y.3d 731, 735 (2017); see Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136; Di Ponzio v. Riordan, 89 N.Y.2d 578 (1997); Rossal-Daub v. Walter, 97 A.D.3d 1006 (3rd Dept. 2012). "Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration." Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 585 (1994) (citations omitted); Miller v. Consolidated Rail Corp., 41 A.D.3d 948, 950 (3rd Dept. 2007). Courts must determine whether and to whom a duty is owed "taking into account 'common concepts of morality, logic and consideration of the social consequences of imposing the duty.'" McNulty v. City of New York, 100 N.Y.2d 227,232 (2003), quoting Tenuto v. Lederle Lab., Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 612 (1997); Palka v. Servicemaster, 83 N.Y.2d at 585. "A critical consideration in determining whether a duty exists is whether 'the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm.'" Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 572 (2015), quoting Hamilton, 96 N.Y.2d at 233.
Courts must also be careful not to impose a duty in all cases where some harm might result, because "foreseeability of harm does not define duty." 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280,289 (2001). "[F]oreseeability and duty are not identical concepts ...[and] [f]oreseeability merely determines the scope of the duty once the duty is determined to exist." Pink v. Rome Youth Hockey Assn., Inc., 28 N.Y.3d 994, 998 (2016), quoting Maheshwari v. City of New York, 2 N.Y.3d 288,294 (2004); Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222; Pulka v. Edelman, 40 N.Y.2d at 785-786 ("Foreseeability should not be confused with duty....[F]oreseeability is a limitation on duty"); Holdampf v. A.C.& S, Inc., 5 N.Y.3d 486 (2005). "Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination. Only if it can be concluded as a matter of law that defendant was negligent, may summary judgment be granted in a negligence action." Ugarriza v. Schmieder 46 N.Y.2d 471,474 (1979); Rodriguez v. City of New York, 31 N.Y.3d 312 (2018); McCummings v. New York City Transit Auth, 81 N.Y.2d 923 (1993).
In the present case, Paul Regalbuto was operating an excavator to remove timber on his property. The Court must first address whether he owed a duty to Hickey. While it may be said that the excavator operator had a "duty to all" [see, Grivas v. Grivas, 113 A.D.2d 264 (2nd Dept. 1985) (operator of a power lawn mower)] or a duty "to the world at large" [Smith v. Kinsey, 50 A.D.3d 1456 (4th Dept. 2008) (duty to exercise safe driving of a motor vehicle)], even if the duty is not that expansive, it is clear that the operator of an excavator owes a duty to persons known to be in close proximity to the excavator and working in concert with the operator. Thus, Regalbuto had a duty to Hickey to operate the excavator in a safe manner.
Plaintiff testified that he had cut down a tree and Regalbuto asked Hickey to cut the stump down flush to the ground, and while he was doing so, Regalbuto drove the excavator over Hickey's leg. Plaintiff also testified that Regalbuto was looking in the opposite direction when he drove over Hickey's leg. There can be little doubt that striking a person with the excavator is a natural and foreseeable consequence of operating the excavator in that manner. Therefore, Plaintiff has made a prima facie case for summary judgment against Paul Regalbuto. There is no dispute that the acts were the proximate cause of Plaintiff s injuries.
In opposition, Defendants argue that there is a question of fact precluding summary judgment against Mr. Regalbuto, and that Plaintiff has not made a prima facie case against Mary Ann Regalbuto. On the first point, Defendants point to the testimony of Mr. Regalbuto that he was unaware that Hickey had gone behind the excavator and knelt down. Although Mr. Regalbuto admitted that he may have mentioned to Hickey that the stump should be cut lower, he did not instruct him to do it at that time. Regalbuto testified that he could not see Hickey once he had knelt down, but that Hickey was apparently in the path of the excavator. Essentially, Defendants claim that the accident was due to Plaintiffs own actions by placing himself in that location, or that Regalbuto cannot be negligent because he did not see Plaintiff, or that there is conflicting testimony as to exactly how the accident happened. Defendants point out that there has been no evidence submitted on the issue of the reasonable and proper way to operate the excavator so as to prevent injuries to those who might not be visible to the cab operator.
Specific standards or guidelines regarding the use and operation of excavators can be some evidence to support a claim of negligence [see generally, Sawyer. Dreis & Krump Mfg. Co., 67 N.Y.2d 328 (1986)], but are not required, particularly when the facts are not of such a nature that require any particular expertise regarding the safe operation of the equipment. Zapata v. Yugo J & V, LLC, 183 A.D.3d 956 (3rd Dept. 2020). The salient and dispositive facts here are that Mr. Regalbuto was looking in the opposite direction than the excavator was moving, and did not satisfactorily check his surroundings to be sure that Hickey was not behind the excavator. This is not a situation of an unknown person being in a dangerous area without the operator's knowledge (which would involve a different consideration of duty and foreseeability), but the Plaintiff was assisting Mr. Regalbuto in cutting down the trees. At the very least, there was a duty to verify, visually or otherwise, that Hickey and his co-worker were not in a spot where they could be struck when the excavator was moved. There were two people working with Mr. Regalbuto, and he needed to be sure that neither one of them was behind the excavator. In actuality, the fact that one of the workers was not visible was the very reason not to move the excavator. The negligence is established even without industry standards or expert testimony, and even if Paul Regalbuto did not know Hickey had bent down to cut the tree stump. Any dispute as to exactly how the accident happened does not alter the negligence in driving the excavator while facing the opposite direction and in not having first verified the safe location of both workers.
Furthermore, Plaintiff does not have to demonstrate the absence of his own comparative negligence to be entitled to summary judgment as to a defendant's liability (Rodriguez v. City of New York, 31 N.Y.3d 312). Even if the trier of fact were to ultimately determine that Plaintiff had some degree of comparative fault, that would go to the issue of damages, not negligence. Any comparative fault can be addressed by the fact finder, but does not raise a triable issue of fact with respect summary judgment on negligence.
The Court now turns to the claim for summary judgment against Mary Ann Regalbuto. Plaintiffs complaint alleges that Mary Ann Regalbuto and Paul Regalbuto owned the property where the accident occurred. Therefore, Plaintiff alleges that Mary Ann also had a duty to a worker on the property by virtue of her shared ownership of the land. She was apparently not at all involved in the work being done, but Plaintiff claims that Mr. and Mrs. Regalbuto were responsible for directing the work, and had a duty to ensure reasonable and adequate protection for workers. However, on this motion, Plaintiff did not present any evidence, or make any argument, with respect to Mary Ann's liability, and focused only on Paul Regalbuto's negligence in the operation of the excavator. Therefore, Plaintiff has not met his burden for summary judgment against Mary Ann Regalbuto.
CONCLUSION
Based on the foregoing discussion, it is hereby
ORDERED, that Plaintiffs motion for summary judgment against Paul Regalbuto is GRANTED; and it is further
ORDERED, that Plaintiffs motion for summary judgment against Mary Ann Regalbuto is DENIED.
THIS CONSTITUTES THE DECISION AND ORDER OF THIS COURT.
The Court has considered all the documents contained in the County Clerk's file, including these papers submitted in connection with this motion:
1) Plaintiffs Notice of Motion dated July 19, 2022 and filed on July 20, 2022, with Affirmation of Terry J. Kirwan, Jr., Esq., with Exhibits "A" through "G" dated July 19, 2022, Plaintiffs Memorandum of Law dated July 19, 2022, and Plaintiffs Statement of Facts dated July 19,2022;
2) Defendants' Response to Statement of Material Facts, dated September 22, 2022, and Defendants' Memorandum of Law in Opposition to Plaintiffs motion, dated September 22, 2022; and
3) Plaintiffs Reply Memorandum of Law dated October 16, 2022.