RIOS v. Premier Carting of New York, Defendant-Respondent.

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Felix RIOS, et al., Plaintiffs-Appellants, v. GRISTEDES DELIVERY SERVICE INC., et al., Defendants, Premier Carting of New York, Defendant-Respondent.

Decided: January 21, 2010

GONZALEZ, P.J., TOM, SWEENY, CATTERSON, ABDUS-SALAAM, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants. Baxter Smith & Shapiro, P.C., Hicksville (Dennis S. Heffernan of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 24, 2008, which, in an action for personal injuries, granted the motion of defendant Premier Carting of New York for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

“Where the evidence as to the cause of the accident which injured plaintiff is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury” (Rivera v. City of New York, 11 N.Y.2d 856, 857 [1962]; Lee v. New York City Hous. Auth., 25 AD3d 214 [2005], lv denied 6 NY3d 708 [2006] ). Here, the evidence shows that plaintiff's injury was caused by his decision to climb into a smaller dumpster that was elevated and resting on a forklift's blades in order to grab bags of garbage and place them into a larger dumpster owned and serviced by defendant Premier Carting. That the larger dumpster had a gate that would have made the elevation unnecessary, but was rendered inaccessible by the placement of that dumpster against a storage container, did not create liability on defendant's part, especially in light of the uncontradicted testimony of Premier Carting's president that it did not determine the location of its dumpster, but rather that it was dictated by an employee of the property owner (see Baker v. Sportservice Corp., 142 A.D.2d 991, 992 [1988]; see also Vazquez v.. Sea-Land Serv., 236 A.D.2d 321 [1997] ). Furthermore, plaintiffs failed to demonstrate that any circumstances exist under which Premier Carting, a contractor, owed a duty of care to them (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 [2002]; Sakai-Figurny v. Irastan, LLC, 67 AD3d 985 [2009] ).