Scipioni v Prelvukaj

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Scipioni v Prelvukaj 2019 NY Slip Op 34507(U) November 1, 2019 Supreme Court, Westchester County Docket Number: 57965/2018 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 11/01/2019 03:32 PM NYSCEF DOC. NO. 35 INDEX NO. 57965/2018 RECEIVED NYSCEF: 11/01/2019 To the ttime ime period To commence commence the statutory statutory period for for appeals appeals as of right (CPLR a. of (CPLR 5513[a]), 5513[0]), you arc are advised advised to serve serve copy of of this this order, with notice notice of of entry. entry, upon upon all parties. panics. a copy SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY --------------------------------------------------------------------------------X --------------------------------------------------------------------------------)( GIANNI GIANNI SCIPIONI, SCIPIONI, Plaintiff, Plaintiff, DECISION & ORDER ORDER DECISION Index No. 57965/2018 Index No. 57965/2018 Sequence No. Sequence No. 1 -against-againstLULZIM PRELVUKAJ PRELVUKAJ and FLORENTINA FLORENTINA PREVLVUKAJ, PREVLVUKAJ, LULZIM Defendants. Defendants. --------------------------------------------------------------------------------X --------------------------------------------------------------------------------)( WOOD,J. WOOD,J. New York York State Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers New State Courts Numbers 18-34, were read in connection judgment motion. connection with with defendants' defendants' summary summary judgment motion. Sanitation worker worker brought action against against property owners to recover recover damages damages sustained sustained Sanitation brought action property owners when worker worker was picking picking up garbage garbage cans cans in front of of owners' owners' home. home. Plaintiff Plaintiff was a Yonkers Yonkers when sanitation worker who who claims claims that that he was working working picking picking up two two garbage garbage bags bags at defendants' defendants' sanitation worker home, one in each each hand hand when when he immediately immediately felt a sharp sharp pain lower right right leg and then then home, pain in his lower dropped the bags. He could could feel blood boot, and saw a piece of aluminum aluminum with with dropped blood pooling pooling in his boot, and he saw piece of window frame cut up extending extending six to seven inches outside outside of Said of the bag. Said aajagged jagged edge like a window seven inches injuries lead to plaintiff plaintiff commencing commencing this action action against against defendants defendants for negligence. negligence. injuries NOW based based upon upon the foregoing, foregoing, the summary summary judgment motion is decided decided as follows follows:: NOW judgment motion settled that that "a proponent proponent of of a summary summary judgment motion must must make make a prima It is well settled judgment motion prima showing of of entitlement entitlement to judgment matter of law, tendering tendering sufficient sufficient evidence evidence to judgment as a matter of law, facie showing demonstrate tl:e absence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d demonstrate NY2d 1 [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 11/01/2019 03:32 PM NYSCEF DOC. NO. 35 INDEX NO. 57965/2018 RECEIVED NYSCEF: 11/01/2019 320,324 [1986]; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684,686320, 324 [1986]; 686Dept 2007]; 2007]; see also Rea Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d ~ept l?ept 2007]). 2007]). Once Once the movant movant 687 [2d Dept threshold burden, opposing party party must must present present the existence existence of of triable triable issues issues of of has met this threshold burden, the opposing Zuckerman v New New York, York, 49 NY2d 557, 562 [1980]; [1980]; see also Khan Khan v Nelson, Nelson, 68 AD3d AD3d fact (see Zuckerman NY2d 557,562 Dept 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions assertions will will not suffice suffice to defeat defeat a motion motion 1062 [2d Dept summary judgment (Barclays Bank Bank of of New New York, N.A. N.A. v Sokol, Sokol, 128 AD2d AD2d 492 [2d Dept Dept for summary judgment (Barclays party opposing opposing a motion motion for summary summary judgment basis of of deposition deposition 1987]). A party judgment may do so on the basis testimony as well as other other admissible admissible forms of of evidence, evidence, including including an expert's expert's affidavit, affidavit, and testimony eyewitness testimony testimony (Marconi (Marconi v Reilly. 254 AD2d AD2d 463 [2d Dept Dept 1998]). 1998]). In deciding deciding a motion motion eyewitness for summary summary judgment, court is required required to view view the evidence evidence presented presented "in "in the light light most most judgment, the court favorable to the party party opposing opposing the motion motion and to draw draw every every reasonable reasonable inference inference from the favorable pleadings and the proof proof submitted submitted by the parties of the opponent opponent to the motion" motion" (Yelder (Yelder pleadings parties in favor of Walters, 64 AD3d AD3d 762, 767 [2d Dept Dept 2009]; 2009]; see Nicklas Tedlen Realty Realty Cotp., Corp., 305 AD2d AD2d v Walters, Nicklas v Tedlen 385,386 Dept 2003]). 2003]). The court court must must accept accept as true the evidence evidence presented presented by the 385, 386 [2d Dept nonmoving p·~~ p".,-tyand must deny deny the motion motion if if there there is "even "even arguably arguably any doubt doubt as to the and must nonmoving existence of of a triable triable issue" issue" (Kolivas (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept 2005]); 2005]); Baker Baker v existence Briarcliff School School Dist., Dist., 205 AD2d AD2d 652,661-662 652,661-662 [2d Dept Dept 1994]). 1994]). The The court's court's function function on this Briarcliff motion for summary summary judgment issue finding finding rather rather than than issue determination determination (Sillman (Sillman v motion judgment is issue Twentieth Century Century Fox Film Film Cotp., Corp., 3 NY2d [1957]). Summary Summary judgment drastic Twentieth NY2d 395 [1957]). judgment is a drastic remedy and should should not not be granted granted where where there there is any doubt doubt as to existence existence of of a triable triable issue issue (68 remedy NY2d 320,324). Further, Further, CPLR CPLR 3212(b), 3212(b), specifically specifically provides provides that that "the "the motion motion shall shall be denied denied NY2d 320,32-;). if any party shall show show facts sufficient sufficient to require require a trial of of any issue issue of of fact". fact". if 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 11/01/2019 03:32 PM NYSCEF DOC. NO. 35 INDEX NO. 57965/2018 RECEIVED NYSCEF: 11/01/2019 elements of of common common law negligence negligence are: "(1) "( 1) a duty duty owed owed by the defendant to the The elements the defendant plaintiff, (2) a breach breach of of that that duty, and (3) a showing showing that the breach breach of of that that duty duty constituted constituted a plaintiff, proximate cause cause of of the injury" injury" (!ngrassia (Ingrassia v Lividikos, Lividikos, 54 AD3d AD3d 721, 721, 724 724 [2d Dept Dept 2008]). 2008]). proximate Defendants, as the movants, movants, bear demonstrate in the first instance instance Defendants, bear the burden burden to demonstrate entitlement judgment. The deposition entitlement to summary summary judgment. deposition testimonies testimonies of of plaintiff plaintiff and and defendant defendant Lulzim Lulzim Prelvukaj were were offered offered in support support of of their their motion motion for summary summary judgment. Defendants claim claim that that Prelvukaj judgment. Defendants record is devoid devoid of of evidence evidence proving that defendants defendants maintained, maintained, operated operated and/or and/or controlled controlled proving that the record subject garbage garbage bag/and bag/and or the item item contained contained in the subject subject garbage garbage bag that that allegedly allegedly the subject injured plaintiff. Further, defendants defendants argue argue that that the record record reveals reveals that that they they did not have have actual actual or injured plaintiff. Further, constructive notice notice of of the alleged alleged dangerous dangerous object object in the subject subject garbage garbage bag. Defendants Defendants constructive cannot be liable liable for plaintiffs plaintiffs alleged injuries as the object object would would have have been open and obvious obvious alleged injuries been open cannot event, the hazard hazard of of sustaining sustaining this type of of injury injury from from the contents contents of of a garbage garbage bag, and in any event, inherent to plaintiffs duties as a sanitation worker. As such, such, defendants defendants argue argue that that plaintiff plaintiff has has is inherent plaintiffs duties sanitation worker. demonstrate that that defendants defendants were were negligent negligent in any way. failed to demonstrate The Court Court of of Appeals Appeals examined examined a similar similar case and found found in relevant relevant part, that whether whether part, that presence of of concrete concrete construction construction debris debris in a garbage garbage can was was an ordinary ordinary and and obvious obvious hazard hazard presence genuine issue issue of of material material fact (Vega (Vega v Restani Restani Const. Const. Corp., Corp., 18 NY3d [2012]). NY3d 499 [2012]). was a genuine Second Department Department has found that: The Second "Certc.~nly, a small small piece piece of glass constitutes constitutes ordinary ordinary garbage garbage or a common common item item of of trash, trash, "Cert1:.Wy, of glass disposal of of which which is a hazard hazard inherent inherent in the duty duty of of a sanitation sanitation worker" worker" (Wagner (Wagner v Wody, Wody, the disposal AD3d 965, 966, [2d Dept Dept 2012]). 2012]). Distinguishable Distinguishable is here here it does does not not appear appear that that the bag 98 AD3d contained just of glass. While While it is true that that a worker worker who who "confronts "confronts the ordinary ordinary just a small small piece piece of contained 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 11/01/2019 03:32 PM NYSCEF DOC. NO. 35 INDEX NO. 57965/2018 RECEIVED NYSCEF: 11/01/2019 and obvious disposal the time obvious hazards hazards of of his [or her] employment, employment, and has at his his [or her] disposal time ... to enable him [[or proceed safely safely ... may not hold hold others others responsible responsible if if he [[or or she] elects elects to enable or her] to proceed perform his [or her] job incautiously as to injure injure himself himself [or herself]" herself]" (Wagner (Wagner v Wody, perform job so incautiously Wody, 98 A.D.3d 965,966,951 965, 966, 951 N.Y.S.2d (2012). Here, Here, it is unclear unclear whether whether plaintiff plaintiff was in fact A.D.3d N.Y.S.2d 59, 60 (2012). fact cautious. not cautious. addition, defendants defendants failed failed to eliminate eliminate triable triable issues issues of of fact, including including as to whether In addition, whether plaintiff performed performed his job appropriately by picking picking up two two bags bags of of garbage garbage at once (if he in fact once (if plaintiff job appropriately (Vega v. Restani Restani Const. Const. Corp., Corp., 18 NY3d [2012]). did); (Vega NY3d 499,506 499,506 [2012]). Court of of Appeals Appeals Case Case in Vega, Vega, and the Second Second Department Wagner Department Case Case in Wagner As in the Court defendants, who who bore bore the initial initial burden burden of of proof proof on their their motion motion for summary failed to defendants, summary judgment, judgment, failed submit any evidence evidence establishing establishing that that the disposal disposal of materials of of the type type found found in the of materials the submit defendants' garbage garbage bag bag "would "would not constitute negligence". In addition, addition, questions questions of of fact exists exists defendants' constitute negligence". whether the jagged aluminum piece piece of of the type found found in the the defendants' defendants' garbage garbage bag bag was was an as to whether jagged aluminum "ordinary and obvious" obvious" hazard hazard as opposed about which which the the defendants defendants should have "ordinary opposed to one about should have provided a warning. warning. provided . defendants failed failed to make make a prima prima facie showing showing of of entitlement entitlement to summary summary judgment judgment As defendants ' court den:es den:es defendants' defendants' motion, motion, regardless regardless of of the sufficiency sufficiency of papers. the court of the opposing opposing papers. Accordingly, the question question of of the reasonableness reasonableness of parties' conduct of fact of the parties' conduct is one one of fact for Accordingly, which can can consider consider the features features of material in the garbage bag and all a jury, jury, which of the discarded discarded material garbage bag relevant surrounding surrounding circumstances. relevant circumstances. arguments by the parties parties not explicitly addressed herein have been reviewed and The arguments explicitly addressed herein have been reviewed deemed to be devoid devoid of of merit. merit. This This constitutes constitutes the Decision Decision and Order of Court. and Order of the Court. deemed 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 11/01/2019 03:32 PM NYSCEF DOC. NO. 35 INDEX NO. 57965/2018 RECEIVED NYSCEF: 11/01/2019 stated reasons, reasons, it is hereby: hereby: For the stated ORDERED, that that defendant' defendant's s motion motion for summary summary judgment further ORDERED, judgment is denied; denied; and it is further ORDERED, that that the the parties parties are directed appear in the the Settlement Settlement Conference Conference Part ORDERED, directed to appear Part in Courtroom Courtroom 1600 on De.c:.~ W .1D Dec~~ jC) 1I 2019, ,,2019, at 9:15AM, 9:15AM, at the the Westchester Westchester County County Courthouse, 111 Dr. Martin Martin Luther Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. 10601. Courthouse, New York Dated: November 2019 Dated: November 1, 2019 White Plains, Plains, New New York York White .WOOD To: P~rties by NYSCEF All Parties NYSCEF 5 [* 5] 5 of 5

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