Smith v Cardella Trucking Co., Inc.

Smith v Cardella Trucking Co., Inc. 2013 NY Slip Op 05198 Decided on July 10, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 10, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2011-10822
(Index No. 32997/07)

[*1]James Smith, et al., plaintiffs-respondents,

v

Cardella Trucking Co., Inc., appellant, Pierpont Morgan Library, defendant-respondent.




Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (C. William Yanuck
of counsel), for appellant.
Blank & Star, Brooklyn, N.Y. (Helene Blank and Scott Star of
counsel), for plaintiffs-respondents.
Nicoletti Hornig & Sweeney, New York, N.Y. (Barbara A.
Sheehan and Val Wamser of counsel),
for defendant-respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Cardella Trucking Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Graham, J.), dated September 20, 2011, as denied those branches of its cross motion which were for summary judgment dismissing the cause of action alleging common-law negligence insofar as asserted against it, and the defendant Pierpont Morgan Library's cross claim for common-law indemnification or contribution against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The injured plaintiff was a laborer employed by nonparty F.J. Sciame Construction Co., Inc. (hereinafter Sciame), which was retained by the defendant Pierpont Morgan Library (hereinafter the Library) as the construction manager for a project involving renovations at the Library. The injured plaintiff and his fellow laborers were responsible for cleaning up the construction debris created by all of the subcontractors and placing the debris into wheeled carts. The defendant Cardella Trucking Co., Inc. (hereinafter Cardella), leased debris carts to Sciame for use at the job site. Cardella employees also came to the job site three times a week to empty the filled debris carts into a Cardella truck. The injured plaintiff was injured when a debris cart he was pushing tipped over and trapped his hand between the cart and a doorway. The plaintiffs commenced this personal injury action against Cardella and the Library.

The Supreme Court properly denied that branch of Cardella's motion which was for summary judgment dismissing the cause of action alleging common-law negligence insofar far as asserted against it. Cardella failed to establish its prima facie entitlement to judgment as a matter [*2]of law by eliminating all issues of fact as to whether it supplied the allegedly defective debris cart (see generally Halvorsen v Baybrent Constr. Corp., 33 AD3d 862, 863-864; Urbina v 26 Court St. Assocs., LLC, 12 AD3d 225, 226; Greco v Archdiocese of N.Y., 268 AD2d 300, 301). Failure to make such a showing required the denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

In view of the foregoing, the Supreme Court also properly denied that branch of Cardella's motion which was for summary judgment dismissing the Library's cross claim for common-law indemnification or contribution against it (see Posa v Copiague Pub. School Dist., 84 AD3d 770, 774; Greco v Archdiocese of N.Y., 268 AD2d 300, 301-302).
MASTRO, J.P., HALL, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court