| Bonomonte v City of New York |
| 2010 NY Slip Op 09165 [79 AD3d 515] |
| December 14, 2010 |
| Appellate Division, First Department |
| Dominic Bonomonte, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), forrespondent.
Order, Supreme Court, New York County (Karen S. Smith, J.), entered April 3, 2009, whichgranted defendant's motion for summary judgment dismissing the complaint, affirmed, without costs.
Plaintiff, a New York City sanitation employee who was already on sick leave due to surgeries tohis right arm, brought this action for the exacerbation of his injuries as a result of slipping and fallingoutside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic.Dismissal of the complaint was warranted, since there was no duty flowing from defendant to plaintiff(see generally Matter of New York CityAsbestos Litig., 5 NY3d 486, 493-494 [2005]). Contrary to plaintiff's contention, a duty wasnot created by the fact that defendant's clinical supervisor had ordered plaintiff to travel to the clinic orface possible termination or suspension of employment and medical benefits (see D'Amico vChristie, 71 NY2d 76, 88 [1987]; Lundberg v State of New York, 25 NY2d 467, 471[1969]).
Although plaintiff contends that his fall was a foreseeable consequence of defendant's negligence inordering him to the clinic at a time when defendant should have been aware that plaintiff had beendirected by his physician not to travel, foreseeability "merely determines the scope of the duty once it isdetermined to exist" (Matter of New York City Asbestos Litig., 5 NY3d at 493 [internalquotation marks and citations omitted]). Since there was no duty owing to plaintiff, he does not have aviable negligence claim against defendant. Furthermore, the evidence fails to establish proximate cause,since the directive that plaintiff report to defendant's clinic merely furnished the occasion for the accident(see Escalet v New York City Hous.Auth., 56 AD3d 257 [2008]). Concur—Friedman, J.P., Nardelli, Moskowitz andFreedman, JJ.
Manzanet-Daniels, J., dissents in a memorandum as follows: I would reverse the order appealedfrom and reinstate the complaint. It cannot be said, as a matter of law, that defendant employer owedplaintiff employee no duty. An employer owes a [*2]duty to provide asafe workplace (see Matter of New YorkCity Asbestos Litig., 5 NY3d 486, 494 [2005]). This duty exists when an employee is actingwithin the course and scope of employment. At the time he was injured, plaintiff was traveling to amandated doctor's appointment at the direct behest of his employer, under compulsion to do so lest herisk suspension from the job and suspension of all medical benefits. Instead of a field visit, as per amedical form in his chart, plaintiff was ordered to report to defendant's clinic by one of the supervisorsfor the sick leave unit. Despite plaintiff's protests that he was under physician's orders not totravel—indeed, plaintiff supplied a physician's letter and persuaded the union to intervene in thedispute, obtaining a three-day postponement of the appointment—he was nonetheless ordered togo to the clinic on December 27th. It is not disputed that plaintiff would not have traveled to the clinichad he not been directly ordered to do so. Plaintiff was told in no uncertain terms that if he failed to goto the appointment, his medical benefits would be cut off and he would face suspension. As has beenaptly summarized: "if the employee would not have undertaken the journey had the business purposebeen canceled, the employee was acting within the scope of employment" (Pitt v Matola, 890F Supp 89, 93 [ND NY 1995] [internal quotation marks omitted]). Plaintiff was on his way to amandated clinic appointment, in furtherance of his work obligations, at the time he slipped and fell,exacerbating his injuries. His employer owed him a duty which, under the circumstances, was arguablybreached. I would therefore reverse and allow the case to proceed.