DESCHAMPS v. TIMBERWOLF TREE TILE SERVICE

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Supreme Court, Appellate Division, Second Department, New York.

Francisco DESCHAMPS, Appellant, v. TIMBERWOLF TREE & TILE SERVICE, et al., Respondents.

2016–05934

Decided: May 29, 2019

JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ. Martin & Colin, P.C., White Plains, N.Y. (Caitriona Robbins of counsel), for appellant. Mead Hecht Conklin & Gallagher, LLP, White Plains, N.Y. (Elizabeth M. Hecht of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Mary H. Smith, J.), dated May 26, 2016.  The judgment, insofar as appealed from, upon an order of the same court dated April 14, 2016, inter alia, granting those branches of the defendants' motion which were for summary judgment dismissing the first, second, and third causes of action, is in favor of the defendants and against the plaintiff dismissing those causes of action.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action seeking damages for personal injuries he alleged he sustained as he was descending a set of grated steps that were built onto the rear outside panel of a tree-trimming truck.  According to the plaintiff, he ascended the steps and lowered a ladder from the roof of the truck.  Thereafter, as he was descending the steps, he reached for a metal grab bar below one of the steps, and a ring on one of his fingers became caught on one of the spiked metal ridges on the surface of the grated step;  as a result, his finger was severed.  The plaintiff alleged, inter alia, that the defendants owned the truck, which they rented or loaned to nonparty Eric Perez.  Perez employed the plaintiff to assist him in providing tree-trimming services.

As is relevant to this appeal, the defendants moved for summary judgment, inter alia, dismissing the first, second, and third causes of action, which alleged negligence, negligent entrustment, and failure to warn, respectively.  The Supreme Court, among other things, granted those branches of the motion and thereafter entered a judgment in favor of the defendants and against the plaintiff dismissing the complaint.  The plaintiff appeals from so much of the judgment as dismissed the causes of action alleging negligence, negligent entrustment, and failure to warn.  On appeal, the plaintiff expressly contends that he does not assert that the steps on the truck were defective or improperly maintained.

“Evidence of negligence is not enough by itself to establish liability.  It must also be proved that the negligence was [a proximate] cause of the event which produced the harm” (Sheehan v. City of New York, 40 N.Y.2d 496, 501, 387 N.Y.S.2d 92, 354 N.E.2d 832).  Thus, “ ‘liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes’ ” (Castillo v. Amjack Leasing Corp., 84 A.D.3d 1298, 1298, 924 N.Y.S.2d 156, quoting Ely v. Pierce, 302 A.D.2d 489, 489, 755 N.Y.S.2d 250; see Rodriguez v. Hernandez, 37 A.D.3d 809, 810, 830 N.Y.S.2d 780).  Further, “proximate cause is no less essential an element of liability because the negligence charged is premised in part or in whole on a claim that a statute or ordinance ․ has been violated” (Sheehan v. City of New York, 40 N.Y.2d at 501, 387 N.Y.S.2d 92, 354 N.E.2d 832).

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging negligence and negligent entrustment through the deposition testimony of the plaintiff.  At his deposition, the plaintiff testified that he had previously used the truck with Perez, was familiar with it from his work, and had never noticed any problem with the steps at issue.  Thus, even if the defendants were negligent in operating a tree-trimming business without a license or in lending or renting or entrusting the truck to Perez, such negligent acts only furnished the occasion for the plaintiff's accident (see Montalvo v. United Parcel Serv., Inc., 117 A.D.3d 1004, 1005, 986 N.Y.S.2d 551; Castillo v. Amjack Leasing Corp., 84 A.D.3d at 1298, 924 N.Y.S.2d 156), but were not a proximate cause of the accident.  The defendants additionally demonstrated, prima facie, that they did not have any “special knowledge concerning a characteristic or condition peculiar to [Perez] which render[ed][his] use of the [truck] unreasonably dangerous,” as is required to establish a negligent entrustment cause of action (Zara v. Perzan, 185 A.D.2d 236, 237, 586 N.Y.S.2d 139).  In opposition, the plaintiff failed to raise a triable issue of fact as to either negligence or negligent entrustment.

With respect to the cause of action alleging a violation of the defendants' duty to warn, the defendants demonstrated, prima facie, through the deposition testimony of the plaintiff, that any danger posed by the stairs was open and obvious and known to the plaintiff from his prior use of the truck (see Ramirez v. Creative Linen House, Inc., 170 A.D.3d 913, 913, 93 N.Y.S.3d 866; Toes v. National Amusements, Inc., 94 A.D.3d 742, 743, 941 N.Y.S.2d 666).  Moreover, the plaintiff's accident was an “extraordinary occurrence” (Toes v. National Amusements, Inc., 94 A.D.3d at 743, 941 N.Y.S.2d 666; see Reynolds v. Atlantis Mar. World, LLC, 29 A.D.3d 770, 771–772, 815 N.Y.S.2d 227).  “[T]here is no duty to warn against an extraordinary occurrence, which would not suggest itself to a reasonably careful and prudent person as one which should be guarded against” (Toes v. National Amusements, Inc., 94 A.D.3d at 743, 941 N.Y.S.2d 666).  In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions are without merit.

Accordingly, we affirm the judgment insofar as appealed from.

LEVENTHAL, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.

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