| Vargas v Crown Container Co., Inc. |
| 2014 NY Slip Op 00988 [114 AD3d 762] |
| February 13, 2014 |
| Appellate Division, Second Department |
| Pedro Vargas et al., Respondents, v CrownContainer Co., Inc., et al., Appellants, et al., Defendants. |
—[*1] The Edelsteins, Faegenburg & Brown, LLP, New York, N.Y. (Paul J. Edelstein ofcounsel), for respondents.
In an action, inter alia, to recover damages for conscious pain and suffering andwrongful death, etc., the defendants Crown Container Co., Inc., Crown Container WasteServices Corp., Crown Container Transfer Station Co., Inc., and Ashim Ali appeal froman order of the Supreme Court, Kings County (Vaughan, J.), dated June 20, 2012, whichdenied their motion for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereofdenying those branches of the motion which were for summary judgment dismissing thecomplaint insofar as asserted against the defendants Crown Container Co., Inc., CrownContainer Transfer Station Co., Inc. and Ashim Ali, and substituting therefor provisionsgranting those branches of the motion, and (2) by deleting the provision thereof denyingthat branch of the motion which was for summary judgment dismissing the cause ofaction to recover damages based on negligent spoliation of evidence insofar as assertedagainst the defendant Crown Container Waste Services Corp., and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed,without costs or disbursements.
The plaintiffs' decedent was employed as a helper on a private garbage truck ownedby the decedent's employer, the defendant Crown Container Co., Inc. (hereinafter CCC),and operated by a coworker, the defendant Ashim Ali. The decedent sustained fatalinjuries when the truck allegedly "shot" backward and pinned him against a garbagedumpster. The plaintiffs, the administrator of the decedent's estate and the decedent'sinfant son, by his mother and natural guardian, Veronica Ortega, commenced this actionto recover damages for personal injuries and wrongful death against multiple defendants,including CCC, Crown Container Transfer Station Co., Inc. (hereinafter CC Transfer),Crown Container Waste Services Corp. (hereinafter CC Waste), and Ali. All of theCrown Container entities are owned and operated by the same individuals. Those entitiesand Ali (hereinafter collectively the appellants) moved for summary judgment dismissingthe complaint insofar as asserted against them. The Supreme Court denied the motion.
The appellants demonstrated their prima facie entitlement to judgment as a matter oflaw with respect to those branches of their motion which were for summary judgmentdismissing the [*2]complaint insofar as asserted againstCCC and Ali based on the exclusivity provisions of the Workers' Compensation Law(see Workers' Compensation Law §§ 11, 29 [6]; Weiner v City of New York,19 NY3d 852, 854 [2012]; Gonzales v Armac Indus., 81 NY2d 1, 8 [1993];O'Rourke v Long, 41 NY2d 219, 222 [1976]). In opposition to the motion, theplaintiffs failed to raise a triable issue of fact. Veronica Ortega, through her depositiontestimony, confirmed that she was awarded benefits for the workers' compensation claimshe made on behalf of the decedent's infant son in connection with the decedent's death.Therefore, workers' compensation was the plaintiffs' exclusive remedy with respect toCCC and Ali (see Myung SookCho-Oh v Choi, 102 AD3d 755 [2013]; Goode v Woodside, 74 AD3d 1279, 1280-1281 [2010]; Castro v Salem Truck Leasing,Inc., 63 AD3d 1095, 1096 [2009]; Beaucejour v General Linen Supply & Laundry Co., Inc., 39AD3d 444, 444 [2007]; Villatoro v Grand Blvd. Realty, Inc., 18 AD3d 647,647-648 [2005]; Hernandez v Yonkers Contr. Co., 292 AD2d 422, 424 [2002];Kuznetz v County of Nassau, 229 AD2d 476 [1996]). To the extent that theplaintiffs contend that CCC is estopped from relying upon the exclusivity provisions ofthe Workers' Compensation Law because of its alleged "fraud" in hiring employees "offthe books," that contention is without merit (see Baljit v Suzy's Dept. Store, 211AD2d 555 [1995]; see also Workers' Compensation Law § 54 [4];Murray v City of New York, 43 NY2d 400, 407 [1977]).
The appellants also established their prima facie entitlement to judgment as a matterof law dismissing the complaint insofar as asserted against CC Transfer. The appellants'evidence demonstrated that CC Transfer did not own the subject garbage truck, that noemployee of CC Transfer maintained or repaired CCC's vehicles, and that CC Transferwas not an alter ego of CC Waste. In opposition, the plaintiffs failed to raise a triableissue of fact.
The appellants also were entitled to dismissal of the cause of action which seeksdamages based upon alleged negligent spoliation of evidence. New York does notrecognize an independent cause of action for such relief (see Ortega v City of NewYork, 9 NY3d 69, 73 [2007]; Hillman v Sinha, 77 AD3d 887, 888 [2010]).
However, the appellants failed to establish their prima facie entitlement to judgmentas a matter of law dismissing the remaining causes of action insofar as asserted againstCC Waste. The appellants' submissions in this regard raised triable issues of fact as towhether CC Waste was interrelated with CCC, whether a mechanic employed by CCWaste repaired the subject CCC garbage truck prior to the accident, and whether thatallegedly faulty repair was a proximate cause in the happening of the accident.Accordingly, the Supreme Court properly denied that branch of the motion, regardless ofthe sufficiency of the opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
Finally, contrary to the appellants' contention, the issue of special employment israised for the first time on appeal and does not involve a question of law that appears onthe face of the record and could not have been avoided if brought to the attention of theSupreme Court (see Guy vHatsis, 107 AD3d 671 [2013]; Block v Magee, 146 AD2d 730 [1989]).Therefore, this issue is not properly before this Court (see Chia v City of New York,109 AD3d 865, 866 [2013]; Matter of Matarrese v New York City Health &Hosps. Corp., 247 AD2d 475, 476 [1998]). Mastro, J.P., Rivera, Sgroi and Cohen,JJ., concur.[*3]
Cross motion by the respondents, on an appealfrom an order of the Supreme Court, Kings County dated June 20, 2012, inter alia, tostrike the appellants' brief on the ground that it refers to matter dehors the record. Bydecision and order on motion of this Court dated July 2, 2013, that branch of therespondents' cross motion which was to strike the appellants' brief on the ground that itrefers to matter dehors the record was held in abeyance and referred to the panel ofJustices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the cross motion, the papers filed in oppositionthereto, and upon the argument of the appeal, it is
Ordered that the branch of the respondents' cross motion which was to strike theappellants' brief on the ground that it refers to matter dehors the record is denied. Mastro,J.P., Rivera, Sgroi and Cohen, JJ., concur.