Opinion
26449/2008.
Decided May 9, 2011.
Hach Rose, LLP, by Philip S. Abate, Esq., New York, New York, For the Plaintiff.
Weiner, Millo, Morgan Bonanno, by Richard A. Walker, Esq., New York, NY, For the Defendant Third-Party Plaintiff American Wax Co., Inc.
McCabe Collins, McGeough Fowler, LLP, by James R. Finn, Esq., Carle Place, New York, For the Third-Party Defendant Alvaro Amato.
The following papers numbered 1 to 40 read on this motion by defendant American Wax Co., Inc. ("American Wax") for an award of summary judgment dismissing the complaint and cross claims against it; a motion by the plaintiffs for leave to serve an amended summons and complaint to add third-party defendant Alvaro Amato as a plaintiff; and a separate motion by defendant American Wax to preclude, inter alia, the plaintiffs' amended verified bill of particulars.
Papers Numbered
Notice of Motion — Affidavits — Exhibits ............................. 1-6,14-17, 29-33 Answering Affidavits — Exhibits ...................................... 7-11, 18-23, 34-36 Reply Affidavits ..................................................... 12-13, 24-28, 37-40This is an action to recover damages for personal injuries allegedly sustained by plaintiff Michael Tsakiris ("plaintiff"), on July 11, 2008, when a 55-gallon drum of wax fell onto him as it was being unloaded from a delivery truck.
The claims by Christine Tsakiris, the injured plaintiff's wife, are derivative in nature.
When the incident occurred, the injured plaintiff was employed as a custodian at a John Bowne High School in Flushing, Queens, where his duties included accepting and inspecting deliveries. Defendant American Wax Co., Inc. ("American Wax") is a manufacturer of cleaning products and chemicals. On July 9, 2008, American Wax entered into an agreement with defendant Gabriel First Corp., a distributor through which American Wax sells its chemicals and materials, to send several 55-gallon drums of floor wax to John Bowne High School.
The complaint was dismissed as against defendant Gabriel First Corp. on summary judgment by a prior order of this Court dated December 14, 2009, and entered by the Clerk on Dec. 22, 2009. The parties, whether or not cognizant of this Court's order of dismissal, filed, on Dec. 29, 2009, a stipulation of discontinuance against Gabriel First Corp., dropping that defendant from the action.
It is undisputed that third-party defendant Alvaro Amato ("Amato") is an independent commercial trucker who runs a shipping and delivery company. Amato has performed deliveries for American Wax for 12 years. He also performs services for several other clients.
On the date of the incident, Amato picked up from American Wax a pallet of four wax drums that were bound together by shrink wrap, loaded them onto the back of his truck, and transported them to John Bowne High School. When Amato arrived at the school and parked his truck at the loading ramp, he was met by the plaintiff, whereupon the plaintiff instructed him to unload all four drums of wax at one time. Amato had wanted to cut the shrink wrap binding and lower the drums two at a time. Instead, he complied with the plaintiff's request and placed the entire pallet containing all four drums of wax onto his truck's lift gate and lowered it to the ground.
The lift gate is operated by a controller on the side of the truck. After Amato brought down the lift gate, it rested flat on the ground. However, the ground/loading ramp was situated at a 20-degree angle, causing two of the wax drums to fall forward onto the declining ramp. One of the drums struck the plaintiff's legs and pinned him against a nearby dumpster.
Amato claims that the injured plaintiff and another employee were holding the pallet as it was being lowered. The plaintiff does not recall telling Amato how to unload the shipment and claims that he was merely conversing with a security guard near the back of the delivery truck when the accident occurred. Amato asserts that the angle of the loading ramp caused the two drums to move forward and fall onto the plaintiff.
The plaintiffs' complaint against American Wax is predicated upon its alleged negligence in arranging and securing the load that was delivered to the school. Defendant American Wax, upon the foregoing papers, seeks summary judgment dismissing the claims against it on the grounds that it had no role or duty associated with the unloading of the subject drums and, thus, cannot be held liable for the incident that caused the plaintiff's injuries.
"To sustain a cause of action alleging negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries" ( Engelhart v County of Orange , 16 AD3d 369 [2nd Dept.], leave to appeal denied, 5 NY3d 704). If a duty of care is not owed by defendant American Wax to the injured plaintiff, there can be no breach and, thus, no liability can be imposed upon this defendant ( see generally, Pulka v Edelman, 40 NY2d 781); Collins v Westchester County Airport, ___ AD3d ___, 920 NYS2d 700 [2nd Dept. 2011]).
The Appellate Division, Second Judicial Department, in Mojica v Gannett Co., Inc. , 71 AD3d 963 , recently stated:
Whether a duty of care is owed by one person to another is a question of law [citations omitted]. In general, an entity has no duty to control a third party's conduct so as to prevent injury to another unless special circumstances exist in which the entity has sufficient authority and control over the conduct of that third party [citation omitted]. Only then can a duty be imposed [citation omitted]. One who hires an independent contractor is not liable for the independent contractor's negligent acts because the employer has no right to control the manner in which the work is to be done [citation omitted].
( 71 AD3d at 965; see, Schindler v Ahearn , 69 AD3d 837 ).
In the present case, defendant American Wax established its prima facie entitlement to judgment as a matter of law by demonstrating that it owed no duty of care to the plaintiff as it did not have control over the manner in which defendant Amato's work was performed. In opposition to summary judgment, the plaintiffs failed to raise a triable issue of fact ( Alvarez v Prospect Hospital, 68 NY2d 320).
Accordingly, defendant American Wax's motion for summary judgment dismissing the complaint and cross claims against it is granted and the claims against it are hereby severed and dismissed.
In light of the foregoing, the motion by American Wax to preclude the plaintiffs' amended bill of particulars and certain discovery is denied as academic.
Finally, the motion by the plaintiffs for leave to amend the summons and complaint to add third-party defendant Amato as a defendant in the main action is also granted. Since Amato is a third-party defendant and is already a participant in this action, and the statute of limitations for the plaintiffs' proposed negligence claims against him has not expired, naming Amato as a defendant does not result in prejudice to him ( see, Cooley v Urban , 6 AD3d 1077 [4th Dept. 2004]).
The foregoing constitutes the decision, order, and opinion of the Court.