Rios v Gristedes Delivery Serv. Inc.

Rios v Gristedes Delivery Serv. Inc. 2010 NY Slip Op 00397 [69 AD3d 499] January 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Felix Rios et al., Appellants,
v
Gristedes Delivery Service Inc. et al., Defendants, and Premier Caring of New York, Respondent.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants. Baxter Smith & Shapiro, P.C., Hicksville (Dennis S. Heffernan of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 24, 2008, which, in an action for personal injuries, granted the motion of defendant Premier Carting of New York for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

"Where the evidence as to the cause of the accident which injured plaintiff is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury" (Rivera v City of New York, 11 NY2d 856, 857 [1962]; Lee v New York City Hous. Auth., 25 AD3d 214 [2005], lv denied 6 NY3d 708 [2006]). Here, the evidence shows that plaintiff's injury was caused by his decision to climb into a smaller dumpster that was elevated and resting on a forklift's blades in order to grab bags of garbage and place them into a larger dumpster owned and serviced by defendant Premier Carting. That the larger dumpster had a gate that would have made the elevation unnecessary, but was rendered inaccessible by the placement of that dumpster against a storage container, did not create liability on defendant's part, especially in light of the uncontradicted testimony of Premier Carting's president that it did not determine the location of its dumpster, but rather that it was dictated by an employee of the property owner (see Baker v Sportservice Corp., 142 AD2d 991, 992 [1988]; see also Vazquez v Sea-Land Serv., 236 AD2d 321 [1997]). Furthermore, plaintiffs failed to demonstrate that any circumstances exist under which Premier Carting, a contractor, owed a duty [*2]of care to them (see Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]; Sakai-Figurny v Irastan, LLC, 67 AD3d 985 [2009]). Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Abdus-Salaam, JJ.