Deljanin v St. Nicholas Cathedral of Russian Orthodox Church in N. Am.

[*1] Deljanin v St. Nicholas Cathedral of Russian Orthodox Church in N. Am. 2006 NY Slip Op 50954(U) Decided on May 22, 2006 Supreme Court, New York County Gische, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2006
Supreme Court, New York County

Zehra Deljanin and Selo Deljanin, Plaintiffs,

against

St. Nicholas Cathedral of the Russian Orthodox Church in North America and JSC of Antonov, Inc., Defendants.



105998/04

Judith J. Gische, J.

Defendant JSC of Antonov, Inc. ("Antonov") moves for summary judgment dismissing the complaint. Defendant St. Nicholas Cathedral of the Russian Orthodox Church in North America ("St. Nicholas") has cross-moved for identical relief. In addition, St. Nicholas seeks an order dismissing Antonov's cross claims against it and granting its cross claims against Antonov. Plaintiffs oppose the motions. Antonov opposes the relief sought by St. Nicholas against it.

Issue has been joined, discovery completed and this motion has been timely made. It is, therefore, ripe for consideration by the court. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004).

The underlying negligence action is for personal injuries sustained by plaintiff, Zehra Deljanin, on October 14, 2003.[FN1] While she was walking along a public sidewalk in front of St. Nicholas she hit her forehead on the arm of a large blue cherry picker. The cherry picker was parked in the roadway adjacent to the side walk and its arm traversed the public sidewalk. Antonov had been hired by St. Nicholas to perform restoration and construction work on the church. Antonov leased the cherry picker for use in connection with the church restoration project. At the time of the accident, it was being operated by Oleg Stogni. Mr. Stogni had been trained in the use of the cherry picker by Antonov. The undisputed evidence is that Mr. Stogni was not paid for any of the work he performed. Antonov (and plaintiff) claim that the operator was a church volunteer; St. Nicholas claims that Mr. Stogni was Antonov's volunteer employee.

There is some dispute about whether the arm of the cherry picker was moving at the time [*2]of the accident. Antonov claims that it was not. Its claims, however, are based on Mr. Stogni's hearsay statements. Such statements are not competent evidence that can be considered on a summary judgment motion. Mr. Stogni apparently now resides in another country. He could not be deposed and is not available to testify at trial. There is some evidence that Father Joseph Krioukov observed the arm in motion shortly after the accident. It is unclear whether this circumstantial evidence is sufficient to establish that the arm of the cherry picker was in motion at the time of the accident. Since the outcome of this motion is the same regardless of whether the arm was is motion or not, the court does not resolve this dispute at this time.

There is no dispute, however, that at the time of the accident plaintiff was searching for her cell phone.

Discussion

As the proponent for summary judgment, defendants bear the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle them to judgment in their favor, without the need for a trial. CPLR § 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Only if this burden is met, will plaintiff then need to establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra. When, however, only issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. See: Hindes v. Weisz, 303 AD2d 459 (2nd dept. 2003).

Both defendants argue that because the cherry picker was open and obvious they did not owe plaintiff any duty of care.

Nobody can dispute that cherry pickers are large construction apparatuses. Their size, however, does not absolve those who use them from exercising due care.

A contractor performing work on a public way is under a duty of care to those who use that public way. Soto v. Anron Enterprises, 293 AD2d 395 (1st dept. 2002). When a hazard is open and obvious, it may relieve a party of a duty to warn. It does not relieve a party of a duty to maintain the premises in a reasonably safe condition. Garrido v. City of New York, 9 AD2d 267 (1st dept. 2004). Although the cherry picker and its arm may have been clearly observable, plaintiff's failure to do so goes only to the question of comparative fault. It does not support any summary determination in defendants' favor.

Both defendants argue further that because plaintiff assumed the risk of walking down the street inattentively, they do not owe her any duty of care.

CPLR §1411 expressly provides that even when a plaintiff's own conduct can be considered an assumption of the risk, recovery is not barred, but rather subject to diminution to the extent such conduct caused damages. Notwithstanding the enactment of CPLR § 1411 in 1975, two separate doctrines of assumption of risk have developed in the case law.

One doctrine acts to completely bar recovery by a plaintiff who freely engages in conduct involving elevated risks of danger and voluntarily assumes those risks. Morgan v. State of New York, 90 NY2d 471 (1997); Arbergast v. Board of Ed. Of South New Berlin Central School, 65 NY2d 161 (1985). This absolute bar is only available, however, when a consenting participant is aware of the risks and has an appreciation of the nature of the risks. Moreover, a plaintiff will not be deemed to have assumed any risk of reckless or intentional conduct on the part of defendant. Morgan v. State of New York, supra.

The second doctrine, known as implied assumption of the risk, does not completely bar recovery, but consistent with CPLR § 1411, diminishes plaintiff's recovery in the proportion to which he or she may have contributed to his or her own injuries. Rodriguez v. New York City Housing Authority, 211 AD2d 328 (1st dept. 1995).

In this case, the absolute bar due to assumption of risk is not available because the activity the plaintiff was engaging in at the time of her accident, i.e. walking along a city sidewalk, is not an inherently dangerous activity. There is no elevated risk of danger in the activity of walking on a city sidewalk. This is to be [*3]distinguished from other activities, like certain athletic or criminal activities, which clearly have elevated risks associated with them. Morgan v. State of New York, supra; Barker v. Kallash, 63 NY2d 19 (1983). Whether plaintiff did or should have observed the cherry picker does not transform a pedestrian activity into an inherently dangerous activity; at most it creates an issue of apportioned liability under an implied assumption of risk doctrine.

Thus, while assumption of risk may still be considered as a defense in this action, it is not an absolute bar to recovery that would warrant summary determination in defendants' favor.

Both defendants claim that because the cherry picker was not inherently dangerous they do not owe plaintiff a duty of care. Apparently this argument relies on defendants earlier argument that the cherry picker was big and could be seen. The court has already rejected the argument that just because a cherry picker is big and noticeable it can be placed anywhere without any risk of liability on the part of the owner or operator. A jury could certainly conclude that having a cherry picker situated such that its arm traversed a public walkway at a height lower than the height of many adults is an inherently dangerous use of the cherry picker.

St. Nicholas makes certain separate arguments regarding only itself.

It claims that it had no notice of the dangerous condition. There are, however, sufficient facts in this record for a jury to conclude that St. Nicholas had constructive notice of the dangerous use of the cherry picker. The cherry picker had been directly outside the church and been used by Antonov to do work on the facade of St. Nicholas' for a number of days prior to the accident. Certainly if, as defendants claim, the cherry picker was open and obvious to the plaintiff, it must have been equally open and obvious to St. Nicholas.

It claims that plaintiff's own conduct was a supervening intervening cause of the accident. This is also premised on the obvious nature of the cherry picker and possibly plaintiff's cell phone search. As already discussed, however, plaintiff's negligence in failing to see what there was to be seen is something that a jury should take into account in apportioning negligence. It does not defeat her entire claim.

It claims that the accident did not occur on its property and was not done by its employees only someone hired by it. Generally, one who hires an independent contractor is not liable for the negligent acts of that independent contractor. Garcia v. the Jesuits of Fordham, Inc., 6 AD3d 163 (1st dept. 2004). A property owner, however, is under a non-delegable duty to see that the maintenance of their building poses no hazard to those lawfully walking on their sidewalk. This duty is an exception to the independent contractor doctrine. Kopinska v. Metal Bright Maintenance Co., 309 AD2d 633 (1st dept. 2003). Thus, summary judgment is not available to dismiss plaintiff's complaint against St. Nicholas.

St. Nicholas also seeks summary judgment on its cross-claim against Antonov, claiming that it was Antonov's sole negligence that caused the accident. This issue turns on whether Mr. Stogni was operating the cherry picker at the time of the accident as a volunteer of the church or a volunteer of Antonov. The evidence shows that Antonov leased the cherry picker and trained Mr. Stogni in its use. At his deposition, Sergei Antonov, as the principal of Antonov, testified that Mr. Stogni was performing volunteer services for him. The only evidence relied on to prove that Mr. Stogni may have been acting a volunteer for St. Nicholas when he was operating the cherry picker is that Mr. Stogni admittedly was an alter boy at St. Nicholas. This fact, however, does not tend to prove that he was also a church volunteer construction worker at the site. The usual duties of alter boy do not encompass the occasional construction work. The fact that Mr. Stogni was an volunteer for the church in some other capacity does not, without more, create an issue of fact about whether he was a volunteer cherry picker operator for St. Nicholas. Thus, St. Nicholas is entitled to summary judgment on the issue of liability on its cross claim against Antonov. Damages will be determined at the time of the trial in the underlying action. For the same reason, it is entitled to summary judgment dismissing Antonov's cross-claims against it. [*4]

Conclusion

In accordance herewith it is hereby:

ORDERED that defendant JSC of Antonov, Inc.'s motion for summary judgment is denied; and it is further

ORDERED that defendant St. Nicholas Cathedral of the Russian Orthodox Church in North America's motion for summary judgment against plaintiff is denied; and it is further

ORDERED that defendant St. Nicholas Cathedral of the Russian Orthodox Church in North America's motion for summary judgment on its cross-claim against defendant JSC of Antonov, Inc. is granted on this issue of liability and that the issue of damages will be determined at the time of trial in the underlying action; and it is further

ORDERED that defendant St. Nicholas Cathedral of the Russian Orthodox Church in North America's motion for summary judgment dismissing JSC of Antonov's cross-claims against it is granted and such cross-claims are severed and the Clerk is directed to enter a judgment of dismissal in accordance herewith; and it is further

ORDERED that any requested relief not expressly granted herein is denied; and it is further

ORDERED that a copy of this decision and order shall be served upon the Clerk of the Court at the Trial Support Office, 60 Centre Street, Room 158M, so that this case can be put on its rightful place on the trial calendar.

This shall constitute the decision and order of the Court.

Dated: New York, New YorkSo Ordered:

May 22, 2006___________________________

HON. JUDITH J. GISCHE, J.S.C. Footnotes

Footnote 1:The co-plaintiff is the spouse of Zehra Deljanin and is suing for loss of consortium.