Casiello v Yellow Freight Sys. Inc.
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Casiello v Yellow Freight Sys. Inc. 2012 NY Slip Op 30764(U) March 19, 2012 Sup Ct, Nassau County Docket Number: 1015/10 Judge: Thomas P. Phelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCltJ SHORT FORM ORDER STATE OF NEW YORK SUPREME COURT Present: HON. THOMAS P. PHELAN. Justice TRIAL/IAS PART 2 NASSAU COUNTY NICHOLAS CASIELLO, Plaintiff( s), -against - ORIGINAL RETURNA TE: 11/17/11 SUBMISSION DATE:0l/19/2012 INEX No. : 1015/10 YELLOW FREIGHT SYSTEMS INC. JOEY T. HARDY and YRC, Inc. Motion Seq. # 1 Defendant(s) . YRC, INC., and JOEY T. HARDY Third Party - Plaintiff -againstCABLEVISION SYSTEMS CORPORATION Third Party - Defendant(s). YRC, INC. and JOEY T. HARDY Second Third Party - Plaintiff -againstVERIZON NEW YORK , INC. Second Third Party - Defendant( s). The following papers read on this motion: Notice of Motion to Strike note ofIssue Notice of Motion .... ...... .... Notice of Cross Motion ,. ."." Affidavit in Opposition ... ".." Reply, . Memorandum of Law.,...""".""".,..,.,.""..", 9, 10 , 11 , Motion pursuant to 22 NYCRR g 202. 21 (e) by defendants/third- part ) (" [* 2] Casiello v Yellow Freight plaintiffs/second third- party plaintiffs YRC , Inc. (incorrectly s/hla Yellow Freight YRC") and Joey T. Hardy (" Hardy ) to vacate the Systems , Inc. and YRC , Inc. note of issue and statement of readiness filed by plaintiff on or about October 4 2010 , to strike the action from the trial calendar and to compel plaintiff to appear for an orthopedic and neurological independent medical examination is denied as moot. YRC and Hardy have cross moved for summary judgment dismissing the complaint apparently abandoning their request for an extension of time to so move. Motion by defendant/second- third part defendant Verizon New York , Inc. Verizon ) pursuant to CPLR 3212 to dismiss all claims , third-party claims and cross claims asserted against said defendant is denied. Motion by defendants/third- party plaintiffs/ second third- party plaintiffs YRC and Hardy pursuant to CPLR 3212 for summary judgment dismissing plaintiffs complaint and any and all cross claims as to said defendants is denied. Motion by defendant CSC Holdings , LLC , (incorrectly s/ha Cablevision Systems Corporation) (" Cablevision ), pursuant to CPLR 3212 for summary judgment dismissing the complaint , the third- part complaint and all cross claims asserted against said defendant is granted. Cross motion by plaintiff pursuant to CPLR 3212 , for summary judgment against defendants YRC , Hardy and Verizon on the issue of liability is denied. In this action , plaintiff seeks to recover for injuries he sustained on March 17 2009 , while he was washing his car in the driveway in front of his horne located at 70 Northrdge Avenue , North Merrick , New York. Plaintiff, who was twenty years old at the time of his injury, alleges that an 18 wheeler tractor trailer delivery trck owned by YRC and operated by Hardy, hit a suspended wire and/or utility line while drving down Northridge Avenue after delivering some tye of engine equipment at a neighboring home. The trck allegedly caused the wire/utility line to snap and, in the process of falling to the ground, the wire strck plaintiff shead injuring him. The subject wire/utility line that snapped was attached to the left Defendant Hardy testified at his deposition that the trailer portion of his trck and 48 feet long. was 13 feet 6 inches in height [* 3] Casiello v Yellow Freight side of the house south of plaintiffs house as one faces the house. showing On a motion for summar judgment of entitlement to judgment as a matter of law tendering sufficient evidence to Shu-Juan Rahman 29 AD3d 566 , 567 (2d Dept 2006). The failure to proffer such evidence warrants denial of the motion regardless of the sufficiency of the Motta 73 AD3d 729, 730 (2dDept 2010). An unsworn accident report is inadmissible and canot be Ryder Truck, Inc. 91 AD3d 935 (2d Dept 2012). The affirmation of an attorney having no personal knowledge of the underlYing facts is not evidence and offers must nothing more than hearsay. A defendant who moves for summary judgment submit evidence which negates prima facie an essential element of plaintiff s Metropolitan Transp. Auth. 23 AD3d 365, 366 (2d , the movant must make a prima facie demonstrate the absence of a material issue of fact as a matter of law. Qi Shaft opposing papers. Rodriquez considered by the court. Rosabella cause of action. Dept 2005). The elements of a cause of action sounding in negligence are: 1) a duty owed by defendant to plaintiff; 2) a breach of that duty; and 3) injury proximately resulting City of New York 66 NY2d 1026 1027 case of negligence , a plaintiff must demonstrate that a defendant (1) created the alleged defective condition which caused the accident or (2) had actual or constrctive notice of the defective condition. In alleging constrctive notice , plaintiff must prove that the dangerous condition was visible , apparent and existed for a sufficient period of time to County of Suffolk 60 AD3d 726 , 727 Solomon by Solomon from the breach. (1985). In order to establish a permit defendant to remedy it. prima facie Ferrigno (2d Dept 2009). In order to establish causation , plaintiff must show that a defendant' s negligence City of Buffalo 59 NY 2d 26 , 32 (1983). When a plaintiff fails to establish the cause of an accident and multiple causes can be attributed to the accident claimed , any determnation as to the cause of the accident is nothing more than speculation. Kush was a substantial cause of events which produced the injury. Amadio Pathmark Stores, 253 AD2d 834 (2d Dept 1998). Although the issue of proximate cause is generally one for the jury, in order to impose liability it is not sufficient that defendant's negligence furnished a condition or occasion for the Manzo 74 AD3d 1307, 1308 occurrence but was not one of its causes. (2d Dept 2010). Peralta [* 4] Casiello v Yellow Freight Verizon seeks summary judgment dismissing all claims asserted against it based on what it claims is an absence of any evidence that the object that came into contact with plaintiff was owned or controlled by Verizon or that Verizon was responsible for maintaining it. Verizon contends that admissions contained in plaintiffs deposition testimony confirm that plaintiff has no idea what hit him and there is no evidence that it was , in fact , a wire that came in contact with plaintiff rather than branches. Contrary to this assertion , plaintiff s bill of particulars states that "plaintiff sustained 16 staples to the back of his head as a result of the cable strking plaintiff. " In this regard , the court notes that the driver of the tractor trailer testified that , when he looked into his side view mirror after pulling away from the curb, he saw a wire on the ground. He assumed "he caught the tractor on the wire. He saw a " guy" holding his head who asked him to call the cops. He assumed that the wire must have hit him. Verizon argues alternatively that even if it owned , maintained or controlled the subject wire , it neither created the defective condition nor had actual or constrctive notice of said condition. Plaintiff counters that YRC and Hardy, as owner and operator respectively of the tractor trailer in question , together with die part that owned the utility wire , are collectively responsible for plaintiffs injures. Plaintiff states that the evidence points to Verizon as the owner of the wire/utility line in question and not Cablevision and notes that there is a common configuration of all utility poles in and around Nassau County. Power lines supplying electricity are located at the top of the pole. Cablevision wire is placed above Verizon telephone wires which are usually located at the lowest portion of the utility pole. This description is confirmed by the testimony of the Verizon field manager who testified on behalf of Verizon. In support of their motion for summary judgment dismissing plaintiffs complaint and all cross claims asserted against them, *defendants YRC and Hardy argue satisfied there is no proof that the YRC trck actually came into contact with the alleged overhead wire/utility line or that the subject overhead wire/utility line did , according to in fact , strke plaintiff. Moreover , even if this were the case , there is YRC *Inasmuch as YRC and Hardy make no furher mention of the need for an independent medical examination of plaintiff, the court assumes that the request has been satisfied. [* 5] Casiello v Yellow Freight and Hardy, no proof that Hardy negligently operated the trck. In this regard Hardy testified that , as he pulled away from the curb after making his delivery, he drove down the middle ofNorthridge Avenue in order to avoid hitting low, he hanging tree branches. When he looked in his rear view mirror , however noticed that a wire had fallen. He did not hear the wire snap or fall. , in fact , there was a low hanging wire , defendants YCR and Hardy argue it was the responsibility and duty of defendant Verizon to maintain and repair the wire. Notwithstanding their arguments to the contrary, YRC and Hardy have failed to establish entitlement to summary dismissal of the complaint. A driver has the duty to see that which he should see through the proper use of his senses. Gordon v s determnation , from a Honig, 40 AD3d 925 (2d Dept 2007). Whether a driver , and , if visual inspection of the road , that his trck could clear wires was erroneous , the degree to which it , as well as the driver s failure to see and hear what was to be seen and heard , caused the accident' herein ' are Turner Const. Co., Inc. 257 AD2d 469 470 (pt Dept 1999). Agli issues of fact for a jury. Cablevision seeks summary judgment dismissing all claims against it on the plaintiffs incident was not a ground that the wire allegedly involved in for Cablevision facility. The affidavit of a field service area operations manager Cablevision states that in March 2009: Cablevision service to 1511 Northrdge Avenue , Merrick , New York , was provided by an aerial cable/wire that ran from the west side ofNorthrdge Avenue and attached to the south side ofthe building at 1511 Northrdge Avenue. Cablevision service to 70 Northridge Avenue , Merrck , New York , was provided by a cable/wire which extended from the west side of N orthrdge Avenue and attached to the north side of the strcture at 70 Northrdge Avenue. There were no complaints of disruptions or service outages received by Cablevision between February 1 2009 and April 1 , Avenue. There 2009 concerning 1511 or 70 Northrdge were no repairs or replacements of the Cablevision aerial facilities extending from the west side of Northridge Avenue to 1511 and 70 Northridge Avenue between February 1 2009 and April 1 , 2009. Based upon the records maintained by Cablevision and my inspection of the accident location , if an aerial wire, which [* 6] Casiello v Yellow Freight extended across Northridge Avenue in the vicinity of 70 and 1511 Northridge Avenue , Merrick, New York was involved in plaintiffs incident , then it was not a wire/cable owned and maintained by Cablevision. The Cablevision wire which rus the west side ofNorthridge Avenue to house at that location. By plaintiff s own from 1511 attaches to the south side of the testimony, the wire which allegedly snapped was attached to the north side of 1511 Northridge Avenue. A field manager on behalf of Verizon testified that a Verizon repair work order for 1511 Northrdge Avenue indicates that there was a report by the homeowner of an interrption of service on March 28, 2009 followed by an aerial repair/replacement of a dropped wire possibly caused by a motor vehicle. There was , however , no indication in the work order when the problem initially occurred. The only way Verizon would discover a problem on the line is when it received a complaint from a customer or police office as Verizon has no procedu e in place whereby it routinely travels through an area to inspect wires to see if they are in proper condition/height. Defendant Cablevision established its entitlement to summary judgment as a matter of law by submitting evidence that it did not own , install , maintain or repair the wire in question. The court notes that plaintiff agrees that the evidence in this case points to Verizon as to the owner of the wire in question and not Cablevision. The record is devoid of any evidence sufficient to raise a triable issue of fact as to Cablevision s ownership of the subject wire/utility line or duty to maintain/repair said wire. Cablevision s motion for summary judgment dismissing all claims against it is , therefore , granted. Generally, a telecommunications company which does not own , install , maintain or repair low hanging wire , or does not have actual or constrctive notice of the condition , will not be held liable for injuries caused/sustained by a person strck CSC Holdings, Inc. 85 AD3d 1113 1115 (2d Dept 2011). Notwithstanding plaintiffs assertion to the contrary, a telephone company must have notice of a dangerous condition such as a sagging TDS Telecom 294 AD2d 860 (4th Dept 2002). . by a wire while on the sidewalk. or low hanging telephone line. Guzman Gallagher Here , however , defendant Verizon failed to submit evidence establishing the height of the line when it was installed , that the wire/utility line in question was not a Verizon facility, or that Verizon did not create the alleged dangerous [* 7] Casiello v Yellow Freight While the court agrees that the affidavit of plaintiff s mother is insufficient to establish constrctive notice of sagging wire , notice of an allegedly dangerous or defective is not an element of a cause of action based on negligent creati n/caus of such a condition. Verizon motion for summary judgment dismissing all claims against it is denied. TDS Telecom Gallagher condition. , supra. Given the existence of factual issues with respect to the negligence of YRC , Hardy and Verizon , plaintiff s cross motion for summary judgment on the issue liability must be denied. Plaintiff has not established their liability as a matter of law. Contrar to plaintiffs contention , he is not entitled to judgment in his favor based which permts an inference of negligence to be res ipsa loquitur on the doctrne of drawn when the nature of the accident is such that it would not ordinarily happen case without negligence. When the doctrine is applicable of negligence sufficient for submission to the fact finder , who may, but is not prima facie , it creates a required to City Tr. Auth. 67 NY2d 219 , 226 (1986). New York Dermatossian , draw a permissive inference or negligence. however , is not applicable under the facts at bar as they do not support a finding that the accident was caused by an instrmentality res ipsa loquitur, The doctrine of within the exclusive control of said defendants. The doctrne applies only when plaintiff can establish that 1) the event is the kind which ordinarily does not occur in the absence of some one s negligence; 2) the event was caused by an agency or instrmentality within the exclusive control of defendant; and 3) the event was not due to any voluntar action or contrbution on the part of plaintiff. State 49 AD3d 581 582 (2d Dept 2008), Iv denied Bodnarchuk 10 NY3d 714 (2008). This decision constitutes the order of the court. THQP. Dated: In ()cl Ol Mi 4f, ENTERED MAR 2 1 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE [* 8] Casiello v Yellow Freight Attorneys of Record Jeffrey A. Sunshine , p, C. Attorneys for Plaintiff 3000 Marcus Avenue , Suite 2E5 , NY 11042 Lake Success Fogarty, Felicione & Duffy, P. Attorney for Defendant 185 Wills Avenue Mineola, NY 11501 DeSena & Sweeney, LLP Attorney for Defendant YRC Inc, (I/s/ha Yellow Freight Systems , Inc. and YRC INC, )and Joey T Hardy 1383 Veterans Memorial Highway Suite 32 Hauppauge , New York 11788 Willam J, Fitpatrck Attorney for Defendant Cablevision Systems Corporation 525 Townline Road - Suite Hauppauge, NY 11788 Monfort , Healy, McGuire 7 Salley, LIp Attorney for Defendant Verizon New Yrok , Inc. 840 Franlin Avenue Garden City, New York 11530
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