| Via v Automated Waste Servs., Inc. |
| 2012 NY Slip Op 04331 [96 AD3d 733] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Lawrence Via, Respondent-Appellant, v Automated WasteServices, Inc., et al., Appellants-Respondents, et al., Defendant. |
—[*1] Fellows, Hymowitz & Epstein, P.C., New City, N.Y. (Darren J. Epstein of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, (1) the defendants Automated WasteServices, Inc., and Maurice Foster appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Rockland County (Walsh II, J.), dated June 8, 2011, as, upon reargument,adhered to an original determination in an order of the same court dated November 8, 2010,denying that branch of their motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Maurice Foster, and the plaintiff cross-appeals, aslimited by his brief, from so much of the order dated June 8, 2011, as, upon reargument, adheredto the original determination in the order dated November 8, 2010, granting that branch of themotion of the defendants Automated Waste Services, Inc., and Maurice Foster which was forsummary judgment dismissing the complaint insofar as asserted against the defendant AutomatedWaste Services, Inc.
Ordered that the order dated June 8, 2011, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated June 8, 2011, is reversed insofar as cross-appealed from, on thelaw, and, upon reargument, so much of the original determination in the order dated November 8,2010, as granted that branch of the motion of the defendants Automated Waste Services, Inc.,and Maurice Foster which was for summary judgment dismissing the complaint insofar asasserted against the defendant Automated Waste Services, Inc., is vacated, and that branch of themotion is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff allegedly assisted the defendant Maurice Foster in opening a lock on a dumpsterthat contained construction debris. When the dumpster gate opened unexpectedly, debris fell ontothe plaintiff and allegedly injured him. The plaintiff commenced this action against Foster,Foster's employer, Automated Waste Services, Inc. (hereinafter Automated), and Westgate [*2]Contracting Corp., the owner of the property. Foster and Automated(hereinafter together the Automated defendants) moved for summary judgment dismissing thecomplaint insofar as asserted against them. In an order dated November 8, 2010, the SupremeCourt granted the motion with respect to Automated, but denied it with respect to Foster. TheAutomated defendants and the plaintiff moved and cross-moved, respectively, for reargument ofthose parts of the order that were adverse to them. In the order appealed from, the Supreme Courtgranted reargument, but adhered to its original determination. The Automated defendants and theplaintiff appeal and cross-appeal, respectively, from so much of that order as, upon reargument,is adverse to them.
The Supreme Court correctly adhered to its original determination denying that branch of theAutomated defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against Foster. The papers submitted in support of the motion demonstratedthe existence of a triable issue of fact as to whether Foster's actions contributed to the creation ofa dangerous condition that was a proximate cause of the plaintiff's injuries (see Baillargeon v Kings CountyWaterproofing Corp., 60 AD3d 881 [2009]; DiSalvio v Young Men's Christian Assn. of City of N.Y., 51 AD3d711, 712 [2008]). The Supreme Court, however, upon reargument, also should have deniedthat branch of the Automated defendants' motion which was for summary judgment dismissingthe complaint insofar as asserted against Automated. The plaintiff asserts that Automated isresponsible for Foster's alleged negligence under the doctrine of respondeat superior. TheAutomated defendants' own moving papers demonstrated the existence of triable issues of fact asto the applicability of that doctrine to the facts here (see Dimitrakakis v Bridgecom Intl., Inc., 70 AD3d 885, 887[2010]; Beauchamp v City of NewYork, 3 AD3d 465, 466-467 [2004]). Inasmuch as the Automated defendants' movingpapers demonstrated the existence of triable issues of fact, the Automated defendants' motionshould have been denied without regard to the sufficiency of the plaintiff's opposition papers (see Jackson v Draz, 94 AD3d1057 [2012]). Florio, J.P., Balkin, Chambers and Cohen, JJ., concur.