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XHEMAL XHIKA, et al., respondents, v. TRIZECHAHN REGIONAL POOLING, LLC, et al., defendants, Chemical Week Associates, LLC, et al., appellants (and a third-party action).
In an action to recover damages for personal injuries, etc., the defendants Chemical Week Associates, LLC, and Chemical Week Publishing, LLC, appeal from an order of the Supreme Court, Kings County (Saitta, J.), dated January 29, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is reversed, on the law, with costs, and the appellants' motion for summary 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 his employment as a janitor when he felt pain in his back and fell. The injured plaintiff alleged that the large garbage bag, which consisted of trash that he had collected from cubicle refuse bins of the 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. The injured plaintiff alleged that, unbeknownst to him, one of the defendants' employees must have deposited 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 refuse bins.
The defendants submitted evidence sufficient to establish their entitlement to judgment as a matter of law, and in response, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact. There was no evidence, only speculation, that the defendants' employee(s) created the alleged hazardous condition by improperly depositing heavy trash into the garbage bag in the bin that the injured plaintiff wheeled around (see Gatanas v. Picnic Garden BBQ Buffet House, 305 A.D.2d 457, 761 N.Y.S.2d 77; Goldman v. Waldbaum, Inc., 297 A.D.2d 277, 746 N.Y.S.2d 44; Licatese v. Waldbaums, Inc., 277 A.D.2d 429, 430, 717 N.Y.S.2d 226; Sanchez-Acevedo v. Mariott Health Care Serv., 270 A.D.2d 244, 707 N.Y.S.2d 118). The plaintiffs also failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the alleged hazardous condition which proximately caused the injured plaintiff's injuries (see generally Gallais-Pradal v. YWCA of Brooklyn, 33 A.D.3d 660, 822 N.Y.S.2d 314; Kraemer v. K-Mart Corp., 226 A.D.2d 590, 591, 641 N.Y.S.2d 130).
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Decided: March 18, 2008
Court: Supreme Court, Appellate Division, Second Department, New York.
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Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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