Djinovic v Equitable Life Assur. Socy. of the United States
Annotate this CaseDecided on November 29, 2006
Supreme Court, Richmond County
Basrija Djinovic and Lena Djinovic, Plaintiffs,
against
The Equitable Life Assurance Society of the United States and ABN AMRO, Defendants.
12577/003
Judith N. McMahon, J.
On August 29, 200, the plaintiff Basrija Djinovic allegedly was injured while lifting computer equipment into a dumpster at his place of employment, 500 Park Avenue, New York, New York. At the time of the accident, the plaintiff was employed as a cleaner/maintenance person by third-party defendant ABM Industries, the building maintenance company. The plaintiff's job responsibilities included removing garbage from the building to the outside dumpsters. Defendant Equitable Life owned the building, and defendant ABN Amro was the tenant whose computer equipment the plaintiff was discarding when he was injured.
On September 20, 2001, the plaintiff allegedly was reinjured while emptying a garbage pail at 500 Park Avenue, New York, New York.
In July, 2003, the plaintiffs commenced this action against the owner and the tenant, and issue was joined by service of an answer by the defendants. In August, 2004, the owner [*2]commenced a third-party action against the maintenance company, and issue was joined by service of an answer. After the completion of discovery, the owner, tenant, and maintenance company all moved for summary judgment dismissing the complaint. The plaintiff cross-moved for summary judgment.
The complaint must be dismissed. The hazard of being injured as a result of lifting heavy garbage and loading it into a dumpster is inherent in the work of a building maintenance worker (see, Marin v. San Martin Restaurant, Inc., 287 AD2d 441 [2d Dept. 2001]). When a workman confronts the ordinary and obvious hazards of his employment, and has at his disposal the time and other resources to enable him to proceed safely, he may not hold others responsible if he elects to perform his job so incautiously as to injure himself (see, Steiner v. Benroal Realty Ass., L.P., 290 AD2d 551 [2d Dept. 2002]; Ercole v. Academy Fence Company, Inc., 256 AD2d 305 [2d Dept. 1998]; Abbadessa v. Ulrik Holding Ltd., 244 AD2d 517 [2d Dept. 1997]).
The plaintiff contends that the complaint should not be dismissed because pursuant to the lease between the tenant and the owner, the tenant could be charged additional fees for removing extra refuse. Assuming that computer equipment falls into this "extra refuse" category and the tenant could be charged an additional fee, it does not change the fact that it was the plaintiff's job to discard the building refuse. If the plaintiff believed that he was not required to remove the computer equipment, he was free to confirm this with his supervisor prior to discarding the equipment. Moreover, if the plaintiff thought that the computer equipment was too heavy for him to remove by himself, he could have sought assistance from a co-worker (see, Keating v. Cookingham, 223 AD2d 997 [3d Dept. 1996]). Accordingly, it is
ORDERED, that the motion and cross-motions of ABN Amro, Equitable Life and ABM for summary judgment are granted and the complaint is dismissed; and it is further,
ORDERED, that the cross-motion of the plaintiffs for summary judgment is denied.
THIS IS THE DECISION AND ORDER OF THE COURT.
E N T E R,
Dated: November 29, 2006
J.S.C.
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