Opinion
Index 610752-15
07-24-2020
RICHARD W. OBST, Plaintiff, v. AMERICAN TRUCKING SERVICES, INC., Defendant.
SIBEN & SIBEN, LLP Attorney for Plaintiff. HAMMELL, O'BREIN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C. Attorney for Defendant.
Unpublished Opinion
SIBEN & SIBEN, LLP Attorney for Plaintiff.
HAMMELL, O'BREIN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C. Attorney for Defendant.
PRESENT: Hon. ROBERT F. OUINLAN Justice.
Hon. Robert F. Quinlan, J.S.C.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant, filed December 13. 2019; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by plaintiff filed February 11, 2020; Replying Affidavits and supporting papers by defendant. filed March 11, 2020; Other___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant American Trucking Services, Inc. for summary judgment dismissing the complaint is denied.
Plaintiff Richard Obst commenced this action to recover damages he allegedly sustained as a resuh of an accident that occurred at 1101 Oak Point Avenue in Bronx, New York, on January 21, 2014, at approximately 11:30 a.m., during his employ for nonparty Cassone Leasing. The accident allegedly occurred when plaintiff fell while attempting to ascend into the rear of a box truck owned by defendant American Trucking Services, Inc. By the complaint, as amplified by the bill of particulars, plaintiff alleges that defendant was negligent in, among things, failing to maintain its vehicle in a safe condition and creating a dangerous condition, namely certain steps located at the rear of the subject box truck used for stepping up and gaining access into the rear of it. Plaintiff further alleges that such steps were "bent in and under the subject truck rendering them ineffective and unusable."
Defendant now moves for summary judgment dismissing the complaint. It argues, in part, that it did not owe a duty to plaintiff, that it neither created nor had notice of the alleged dangerous condition, and that the "storm in progress" rule precludes it from being held liable for his injuries. Defendant also argues the plaintiff is unable to identify the cause of his accident, and that the alleged dangerous condition was open and obvious, and not inherently dangerous. Defendant further argues that its alleged negligence was not the proximate cause of the accident. In support of its motion, defendant submits, among other things, the transcripts of the deposition testimony of plaintiff and Brian DeHaven, and various certified weather records.
Plaintiff testified that prior to the accident, "[i]t just started to snow," and that there was only light flurries. He further testified that there was no accumulation of snow on the pavements or roadways, but it was "sticking." According to plaintiff s testimony, two box trucks were used during his employment by Cassone Leasing. Plaintiff explained that the rear of the subject box truck had a step, located on each side, to gain access to the rear of it, where supplies were stored. He further explained that both steps "were pushed under the truck, making them inoperable," and that they were "[p]robably about 18 inches under the truck."
Plaintiff testified that the accident occurred when he was in the process of ascending into the rear of the truck to gather supplies. He explained that the accident occurred when his left foot was on the trailer hitch and his right foot was on the platform. He explained that he lost his balance when he was attempting to reach for a grab handle located on his right side. He testified that the platform was "maybe 40 inches" from the ground. According to his testimony, prior to the accident, he climbed up and down into the rear of the box truck to gather supplies between 5 and 10 times, in the same manner, without incident. He also testified that he did not know whether he told anyone that the accident occurred when he slipped and fell on snow after the accident.
According to plaintiffs deposition testimony, prior to the accident, he did not recall how long the steps had been pushed underneath the subject box truck. Plaintiff allegedly had seen the steps damaged in this manner on prior occasions. Plaintiff stated that the steps were repaired by defendant a couple of times during his employment by Cassone Leasing. He explained that when the steps previously were damaged, he would step onto the trailer hitch of the box tuck, then step onto the platform, and then reach for a grab handle. He described the hitch as "[a] regular commercial ball hitch" and stated that both of his feet could not fit on it. Plaintiff allegedly made complaints regarding the condition of the steps to John Spence, who was a foreman, but he allegedly did not recall the last time that he made such a complaint before the accident.
Brian DeHaven testified that at the time of the accident he was employed as a controller for defendant, working on financial aspects of the business. According to DeHaven defendant was owned by Lisa Fenimore and Cassone was owned by her father, Peter Kunz. DeHaven testified that defendant owned one or two box trucks in January 2014, which were stored in its lot when they were not in use. Cassone Leasing allegedly used the box trucks to deliver tools to its work sites but no logs were maintained by defendant on the use of the truck nor did defendant maintain any records of damage caused to the box trucks utilized by Cassone. DeHaven stated he did not know whether inspections of the body of the trucks were performed by defendant or who performed structural repairs to the body of the box trucks. He stated that no one employed by defendant was responsible for examining the trucks before or after use. DeHaven stated that he was unaware of whether repairs were made to the body of the box trucks before January of 2014.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med, Ctr., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which requires a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]).
Contrary to defendant's contention, it failed to establish, prima facie, that it did not owe any duty to plaintiff (see Burke v Yankee Stadium, LLC, 146 A.D.3d 720, 47 N.Y.S.3d 261 [1st Dept 2017]). As the owner of the subject box truck, defendant had a duty to maintain it in a reasonable safe condition (see Burke v Yankee Stadium, LLC, 146 A.D.3d 720, 47 N.Y.S.3d 261 [1st Dept 2017]; cf. Maschio v Builders Transport, Inc., 201 A.D.2d 627, 609 N.Y.S.2d 618 [2d Dept 1994]). The Court finds there is no basis for the argument by defendant's counsel that it cannot be held liable for plaintiffs alleged injuries on the basis that he was not its employee.
Defendant also failed to establish, prima facie, it neither created the alleged dangerous condhion nor had actual or constructive notice of it existence (see Davis v Sutton, 136 A.D.3d 731, 26 N.Y.S.3d 100 [2d Dept 2016]; Elsayed v Al Farha Corp., 132 A.D.3d 942, 20 N.Y.S.3d 80 [2d Dept 2015]; Friedman v 1753 Realty Co., 117 A.D.3d 781, 986 N.Y.S.2d 175 [2d Dept 2014]). Defendant failed to proffer evidence regarding when the area of the box truck at issue was last inspected prior to plaintiffs accident (see Malloy v Montefwre Med. Ctr., 183 A.D.3d 811, 122N.Y.S.3d532 [2d Dept 2020]; Nsengiyumva v. Amalgamated Warbasse Houses, Inc., 180 A.D.3d 799, 115 N.Y.S.3d 912 [2d Dept 2020]; Troina v Canyon Donuts Jericho Turnpike, Inc., 166 A.D.3d 706, 86 N.Y.S.3d 78 [2d Dept 2018]). Further, defendant failed to make a prima facie showing that the alleged defect that caused plaintiff to fall was not visible and apparent, and would not have been noticed upon a reasonable inspection of the accident area (see Malloy v Montefwre Med. Ctr., supra; Fortune v Western Beef, Inc., 178 A.D.3d 671, 115 N.Y.S.3d93[2d Dept 2019]).
Defendant also failed to establish, prima facie, that plaintiff was unable to identify the cause of his fall without engaging in speculation (see Moiseyeva v New York City Housing Authority, 175 A.D.3d 1527, 109 N.Y.S.3d 370 [2d Dept 2019]; Flanagan v Town of Huntington, 155 A.D.3d 1000, 64 N.Y.S.3d [2d Dept 2017]; Pajovic v 94-06 34th Road Realty Co., LLC, 152 A.D.3d 781, 59 N.Y.S.3d 138 [2d Dept 2017]). Even if plaintiffs fall was precipitated by a loss of balance, defendants failed to eliminate triable issues of fact regarding whether the allegedly defective steps located underneath the box truck were not a proximate cause of his injuries (see Pajovic v 94-06 34th Road Realty Co., LLC, supra; DeCarlo v Vacchio, 147 A.D.3d 724, 45 N.Y.S.3d 581 [2d Dept 2017]; Boudreau-Grillo v Ramirez, 74 A.D.3d 1265, 904 N.Y.S.2d 485 [2d Dept 2010]).
Moreover, defendant failed to establish its prima facie entitlement to summary judgment on the ground that the alleged the alleged dangerous condition was open and obvious and not inherently dangerous (see Santopetro v Devine Mercy R.C. Parish, 155 A.D.3d 1080, 64 N.Y.S.3d [2d Dept 2017]; Schwartz v Reisman, 135 A.D.3d 739, 22 N.Y.S.3d 879 [2d Dept 2016]; Surujnaraine v Valley Stream Cent. High School Dist., 88 A.D.3d 866. 931 N.Y.S.2d 119 [2d Dept 2011]). Defendant failed to submit sufficient evidence regarding whether the condition of the steps was not inherently dangerous (see Crosby v Southport, LLC, supra: Lee v Acevedo. 152 A.D.3d 577, 59 N.Y.S.3d 66 [2d Dept 2017]; Rigatti v Geba, 140 A.D.3d 723, 30 N.Y.S.3d 898 [2d Dept 2016]).
Contrary to defendant's contention, the storm in progress rules does not preclude it from being liable for plaintiffs alleged injuries as matter of law (see generally Mejias v City of New York, supra; Velez v 955 Tenants Stockholders, Inc., 66 A.D.3d 1005, 887 N.Y.S.2d 646 [2d Dept 2009]). Although the parties do not dispute that there was precipitation at the time of plaintiffs accident, defendant failed to eliminate triable issues of fact as to whether the alleged dangerous condition of the steps caused or contributed to his injuries (see Mejias v City of New York, supra). Plaintiff does not allege that he fell on snow or ice, and that his fall was caused by defendant's failure to remove accumulating snow. Rather, he alleges, among other, that his accident occurred as a result of defective steps underneath the truck.
As to proximate cause, defendant did not satisfy its prima facie burden that plaintiffs conduct in stepping on the trailer hitch to ascend into the rear of the box truck was so unforeseeable as to constitute a superseding and intervening act which severed any nexus between defendant's alleged negligence and plaintiffs injuries (see Hain v Jamison, supra: Munoz v Kiryat Stockholm, LLC. 162 A.D.3d 889, 79 N.Y.S.3d 264 [2d Dept 2019]; Biro v Keen. 153 A.D.3d 1571. 61 N.Y.S.3d 750 [4th Dpt 2017]). As previously indicated, plaintiff testified that on the date of the accident, the steps of the box truck were bent underneath and were "inoperable." He explained that when the steps were bent underneath the subject box truck, on prior occasions and on the date of the accident, he used the trailer hitch to ascend into the rear of it. Under the circumstances, there are triable issues of fact as to whether plaintiffs accident was a natural and foreseeable consequence of defendant's alleged negligence (see Rodriguez v. 250 Park Avenue, LLC. 161 A.D.3d 906, 76 N.Y.S.3d 107 [2d Dept 2018]; Piazza v Volpe, 153 A.D.3d 563, 59 N.Y.S.3d 466 [2d Dept 2017]).
In light of defendant's failure to meet its prima facie burden, we need not consider the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d316).
According, the motion by defendant is denied.