Deschamps v. Timberwolf Tree & Tile Serv.

172 A.D.3d 1308

101 N.Y.S.3d 418

Francisco DESCHAMPS, Appellant,

v.TIMBERWOLF TREE & TILE SERVICE, et al., Respondents.

2016–05934

Index No. 54129/14

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

Submitted—December 11, 2018

May 29, 2019

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.

JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

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...