| Xhika v Trizechahn Regional Pooling, LLC |
| 2008 NY Slip Op 02578 [49 AD3d 719] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Xhemal Xhika et al., Respondents, v Trizechahn RegionalPooling, LLC, et al., Defendants, and Chemical Week Associates, LLC, et al., Appellants. (And aThird-Party Action.) |
—[*1] Alma Mandija, Ridgewood, N.Y. (Lisa S. Fine of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants Chemical WeekAssociates, LLC, and Chemical Week Publishing, LLC, appeal from an order of the SupremeCourt, Kings County (Saitta, J.), dated January 29, 2007, which denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the appellants' motion forsummary judgment dismissing the complaint insofar as asserted against them is granted.
The injured plaintiff was pulling out a large garbage bag from a bin during the course of hisemployment as a janitor when he felt pain in his back and fell. The injured plaintiff alleged thatthe large garbage bag, which consisted of trash that he had collected from cubicle refuse bins ofthe offices of the defendants Chemical Week Associates, LLC, and Chemical Week Publishing,LLC (hereinafter the defendants), was unusually heavy when he tried to lift it out of the bin. Theinjured plaintiff alleged that, unbeknownst to him, one of the defendants' employees must havedeposited some heavy trash, which should have been deposited in a hamper in the mail room,into the garbage bag in the bin that he wheeled around to collect garbage from the cubicle refusebins.
The defendants submitted evidence sufficient to establish their entitlement to judgment as[*2]a matter of law, and in response, the plaintiffs failed tosubmit evidence sufficient to raise a triable issue of fact. There was no evidence, onlyspeculation, that the defendants' employee(s) created the alleged hazardous condition byimproperly depositing heavy trash into the garbage bag in the bin that the injured plaintiffwheeled around (see Gatanas v Picnic Garden B.B.Q. Buffet House, 305 AD2d 457[2003]; Goldman v Waldbaum, Inc., 297 AD2d 277 [2002]; Licatese v Waldbaums,Inc., 277 AD2d 429, 430 [2000]; Sanchez-Acevedo v Mariott Health Care Serv., 270AD2d 244 [2000]). The plaintiffs also failed to raise a triable issue of fact as to whether thedefendants had actual or constructive notice of the alleged hazardous condition whichproximately caused the injured plaintiff's injuries (see generally Gallais-Pradal v YWCA of Brooklyn, 33 AD3d 660[2006]; Kraemer v K-Mart Corp., 226 AD2d 590, 591 [1996]). Rivera, J.P., Skelos,Santucci and Leventhal, JJ., concur.