Opinion
Index 2018-53063
10-21-2021
DIOSCORO LAVARIEGA CASTELLANOS and INES MENDOZA, Plaintiffs, v. DOUGLAS J. MOFFITT d/b/a SOLVANG TREE FARM, and TRIPLE J VENDING, LLC, Defendants, DOUGLAS J. MOFFITT, Third-Party Plaintiff, v. JUAN DEDIOS LAVARIEGA MENDOZA, Third-Party Defendant. Motion Sequence Nos. 2-4
HON. EDWARD T. McLOUGIILIN, J., ACTING SUPREME COURT JUSTICE
Unpublished Opinion
DECISION & ORDER
HON. EDWARD T. McLOUGIILIN, J., ACTING SUPREME COURT JUSTICE
The Court read and considered the following documents in determining the motions for summary judgment submitted by defendants Triple J Vending, LLC (Sequence No. 2) and Douglas J. Moffitt (Sequence No. 3), as well as the plaintiffs' cross-motion for summary judgment (Sequence No. 4):
NYSCKK Docket Numbers
Motion Sequence No. 2: 62 - 86, 113, 114, 119 - 121
Motion Sequence No. 3: 87- 112, 123, 125
Motion Sequence No. 4: 109-111, 123, 125
On or about April 28, 2018, plaintiff Dioscoro Lavariega Castellanos suffered serious physical injury when his hand got caught in a log splitter that he and third-party defendant Juan Dedios Lavariega Mendoza (who is the plaintiffs son) were using on property jointly owned by defendant Douglass J. Moffitt ("Mofillt") and Jennifer Jorgenscn ("Jorgcnscn"), a member of defendant Triple J Vending, LLC ("Triple J'').The plaintiffs commenced this action with the filing of a summons and complaint on October 1, 2018. A first amended complaint was filed on February 15, 2019 followed by a second amended complaint on May 6, 2019. The second amended complaint asserted causes of action sounding in negligence against each of the defendants. Triple .1 and Moffitt served their answers to the second amended complaint on May 7, 2019 and May 16, 2019, respectively. Defendant Moffitt commenced a third-party action against the third-party defendant on or about October 3, 2019. Third-party defendant appeared in the action, pro se, by service of a verified answer to the third-party complaint on May 21, 2020.
After the completion of discovery and filing of the note of issue, Triple J moved, by notice of motion dated February 8, 2021, for summary judgment dismissing the second amended complaint insofar as asserted against it (Motion Sequence No. 2). On February 9, 2021, Moffitt also moved for summary judgment dismissing the second amended complaint insofar as asserted against him (Motion Sequence No. 3). The plaintiffs opposed the defendants' motions and, by notice of cross-motion dated March 16, 2021, moved for an order granting summary judgment against Moffitt and third-party defendant (Motion Sequence No. 4). For the reasons set forth herein, Triple Ts motion is granted, MoffitTs motion is granted in part and denied in part, and the plaintiffs' cross-motion is denied.
RELEVANT UNDISPUTED FACTS
The accident at issue in this litigation occurred on April 28, 2018 at 80 Bedell Road, Poughkecpsic, New York (hereinafter "the Property"). The Property is owned by Moffitt and Jorgensen. The plaintiff had performed landscaping and yard work on the Properly for 15 years prior to the date of the incident [see Triple J Statement of Material Facts, NYSCEF Docket No. 83, ¶2]. Third-party defendant also had performed landscaping work on the Property for several years prior to the incident [id. at ¶3], The landscaping work performed at the Property included mowing the lawn, gardening, cutting down trees, and other farm work [id. at ¶4], and involved the use of power tools [id. at ¶6].
Triple J is a vending company that owns, maintains, and stocks vending machines at various locations, including colleges and businesses [id. at ¶20]. Moffitl has no ownership interest in Triple J [id. at ¶23]. Triple J maintains a warehouse/office on the Property [id. at ¶21]. Triple J does not sell wood and/or logs as part of its business nor does it use wood and/or logs in its business operations [id. at ¶¶ 41-42], Moffitt owned and operated "Solvang Tree Farm" at the Property [see Plaintiffs' Response to Triple J Statement of Material Facts, NYSCEF Docket No. 114, ¶53]. Moffitt was also an employee of Triple J [id, at ¶54].
After 3 or 4 years of performing landscaping work at the Property, third-party defendant was hired to work as a vending employee for Triple J in the fall of 2017 [Triple .1 Statement of Material Facts, NYSCHF Docket No. 83, ¶10]. 11c was hired as a part-time vending employee and worked approximately 20-25 hours per week [id. at ¶30]. The daily duties of vending employees included picking and placing product in bins, filling each vending machine owned by Triple J at various locations, and collecting money from vending machines [id. at ¶25]. Third-party defendant continued to perform yard work and landscaping on the Property after he was hired by Triple J as a vending employee [id. at ¶11].
On the day of the accident, the log splitter was in a shed on the Property and was moved from the shed to the location where the accident occurred by the plaintiff [id. at ¶ 14]. The plaintiff placed logs on the base of the log splitter and third-party defendant operated the handle that engaged the hydraulic wedge [id. at ¶ 6], Third-party defendant pulled the handle of the log splitter while plaintiffs hand was still in the log splitter [sec Plaintiffs' Response to Triple J Statement of Material Facts, NYSCEF Docket No. 114, ¶53]. Third-party defendant was using the log splitter in contravention of the express warning labels on the log splitter [Triple J Statement of Material Facts, NYSCEF Docket No. 83, ¶15].
Jorgensen was not present on the Property on April 28, 2018 when the plaintiff and third-party defendant were present [id. at ¶34]. Jorgensen did not direct or instruct third-party defendant to perform any work on behalf of Triple J on April 28, 2018 [id. at ¶37]. Jorgensen did not, on behalf of Triple J or otherwise, direct or instruct third-party defendant to move or split any wood or logs located on the Property on April 28, 2018 [id. at ¶46]. Third-party defendant did not report any lime for April 28, 2018 on his Triple J timesheet and was not paid by Triple J for any work done on April 28, 2018 [id. at ¶¶ 39-40], DISCUSSION
Because summary judgment ''deprives the litigant of its day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" [Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974)]. "But when there is no genuine issue to be resolved at trial, the case should be summarily decided" [Id.]. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact" [Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 (1986)]. "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" [Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985)]. ''Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" [Alvarez, supra, at 324]. "Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" [Ugaririza v. Schmieder, 46 N.Y.2d 471, 474 (1979); see also Davis v. Federated Depi. Stores, Inc., 227 A.D.2d 514, 515 (2d Dept. 1996)].
I. Triple J Motion for Summary Judgment (Sequence No. 2)
It is undisputed that third-party defendant was an employee of Triple J at the time of the accident. In moving for summary judgment, Triple J argues that although third-party defendant was an employee of Triple J, he was not acting within the scope of his employment at the time of the accident.
"Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" [NX v. Cabrini Medical Center, 97 N.Y.2d 247, 251 (2002), citing Rivielio v. Waldron, 47 N.Y.2d 297 (1979)]. "An employee's actions fall within the scope of employment when the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" [Brandford v. Singh, 136 A.D.3d 726, 728 (2d Dept. 2016) (citations omitted)]. "Conversely, where an employee's actions arc taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment" [id (citations omitted); see also Fenster v. Ellis, 71 A.D.3d 1079, 1080 (2d Dept. 2010)].
Here, Triple J's submissions established, prima facie, that third-party defendant was not acting within the scope of his employment with Triple J at the time of the accident. Triple J's papers, including Jorgensen's deposition testimony [NYSCEF Docket No. 72] and affidavit [NYSCKF Docket No. 79], demonstrated, inter alia, that: during third-party defendant's employment with Triple J, Jorgensen was solely responsible for scheduling and assigning duties to him and other employees [Triple J Statement of Material Facts, NYSCKF Docket No. 83, ¶22]; Triple J employees customarily worked Monday through Friday [id. at ¶28]; any employee of Triple J that wanted to work on a Saturday would have to submit a request to Jorgensen for approval [id. at §31 ]; third-party defendant was not scheduled to work for Triple J on the date of the accident (Saturday April 28, 2018), nor had he requested permission from Jorgensen to do so [id. at §§32-33, 35]; third-party defendant was not wearing his Triple J shirt/uniform when he reported to the Property on April 28, 2018 [Mendoza Dep Tr, NYSCEF Docket No. 77, p 64]; at no time prior to, or on, April 28, 2018, did Jorgensen request that third-party defendant perform any work on the Property as part of his duties as an employee of Triple J [Triple J Statement of Material Facts, NYSCHF Docket No. 83, ¶51]; Triple J did not own a log splitter or utilize a log splitter in connection with its business [id. at §§ 43-44]; and, prior to the date of the accident, third-party defendant had never been asked to split logs as part of his duties at Triple J [Mendoza Dep Tr, NYSCEF Docket No, 77, p 73]. Triple J also demonstrated that prior to and including April 28, 2018, third-party defendant's paychecks from Triple J were solely for work performed by him in connection with his duties as a vending employee and did not include any work he may have performed on the Property [Triple J Statement of Material Facts, NYSCEF Docket No. 83, ¶52].
Plaintiff and third-party defendant performed landscaping and yard work at the Property for years prior to the incident. Third-party defendant performed landscaping work at the Property prior to and concurrently with his employment at Triple J. On this factual record, Triple J has established, prima facie, that the splitting of logs on April 28, 2018 was in furtherance of third-party defendant's (and plaintiffs) own personal interests, unrelated to the business of Triple J.
In opposition, the plaintiffs failed to raise a triable issue of fact. Third-party defendant's testimony that he lacked a set work schedule for Triple J is belied by documentary evidence in the record, namely the timesheets submitted to Triple J in the Spring of 2018 [see NYSCEF Docket No. 82J. These records show that he ordinarily worked for Triple J on Mondays, Wednesdays, and Fridays and, importantly, that he did not work for Triple .1 on the date of the accident, April 28, 2018. Additionally, and contrary to their position in opposition to Triple J's motion, the plaintiffs in their cross-motion for summary judgment against Moffitt argued that third-party defendant was an employee of Moffitt and Solvang Tree Farm on the date of the accident.
The plaintiffs also failed to rebut Triple J's showing that log splitting was not an act typically performed by Triple J employees as part of their job duties. To the contrary, the plaintiffs concede that Triple J does not own a log splitter or use a log splitter in its business and that log splitting is not part of the customary duties of a Triple J employee. Moreover, in searching the record, the Court notes that during his deposition, third-party defendant stated that the only time he had done log splitting on the Property was for Solvang Tree Farm, and not Triple J [Mendoza Dep Tr, NYSCHF Docket No. 77, p 1131.
Because the plaintiffs have failed to raise a triable issue of fact in opposition to Triple J's showing that third-party defendant was not acting within the scope of his employment on the date of the accident, Triple J's motion for summary judgment dismissing the second amended complaint insofar as asserted against it is granted.
II. Moffitt Motion for Summary Judgment (Sequence No. 3) and Plaintiffs' Cross-Motion for Summary Judgment against Moffitt (Sequence No. 4)
The plaintiffs assert that Moffitt was negligent in failing to maintain the Property in a safe manner and failing to operate the log splitter in safe manner. The plaintiffs also allege that Moffitt was responsible for the negligent conduct of third-party defendant under a respondeat superior theory, and that he negligently entrusted a dangerous instrument - the log splitter - to third-party defendant.
A. Negligence - Failure to Maintain the Property in a Reasonably Safe Condition
It is well-settled that a property owner "has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition 'in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'" [Dawkins v. Mastrangelo, 137 A.D.3d 739, 739 (2d Dept. 2016) quoting Salomon v. Prainito, 52 A.D.3d 803 (2d Dept. 2008); see also Basso v Miller, 40 N.Y.2d 233 (1976)].
Moffitt established, prima facie, that he had maintained the Property in a reasonably safe condition and that he did not have notice of or create a dangerous condition that posed a foreseeable risk of injury. His moving papers showed that: there were no mechanical problems with the log splitter and that it functioned properly [Mendoza Dep Tr, NYSCHF Docket No. 97, p 60]; plaintiff had operated log splitters on the Property without issue for years prior to the accident [Pltf Dep Tr, NYSCEF Docket No. 95, p 16]; plaintiff had operated the log splitter at the Property three or four days prior to the accident without any complication [id.] and third-party defendant had operated the log splitter at the Property by himself in the week leading up to the accident [Mendoza Dep Tr, NYSCKF Docket No. 97, p 21]. In opposition, plaintiffs failed to raise a triable issue of fact.
Moffitt also made out a prima facie case tor summary judgment by submitting evidence that there was no causal nexus between any alleged breach by Moffitt and the injury sustained by plaintiff. Plaintiffs and Moffitt (and third-party defendant) agree that third-party defendant negligently operated the log splitter. Third-party defendant admitted he activated the log splitter without determining whether plaintiffs hand was clear [Mendoza Dep Tr, NYSCHF Docket No. 97, p 29] and without reading the warning labels [id. at pp 26-27]. Plaintiffs offered no facts in opposition to this showing. In fact, plaintiffs-concede that third-party plaintiff was the "sole and proximate cause" of the accident [see Plaintiffs' Response to Moffitt Statement of Material Facts, NYSCFF Docket No. 112, ¶6]. Thus, third-party defendant's misuse of the log splitter was an intervening act that relieves Moffitt of liability for any alleged breach.
Although a determination of proximate cause is generally for the trier of fact, summary judgment is appropriate where, as here, "only one conclusion may be drawn from the established facts" [Jones v. Saint Rita's Roman Catholic Church, 187 A.D.3d 727, 729 (2d Dept. 2020), citing Derdiarian v. Felix Contr Corp, 51 N.Y.2d 308, 315 (1980)]. The record before the Court establishes that Moffitt "merely furnish[ed] the condition or occasion for the occurrence of the event but [was] not one of its causes" [Deschamps v. Timberwolf Tree & Tile Service, 172 A.D.3d 1308, 1309 (2d Dept. 2019)]. Based upon the foregoing, Moffitt is entitled to summary judgment dismissing the claims asserted against him in the second amended complaint based upon his alleged failure to maintain the Property in a reasonably safe condition.
B. Respondeat Superior and Negligent Entrustment
As an alternative basis of liability, plaintiffs assert that third-party defendant was Moffitt's employee and, thus, Moffitt is responsible for the negligence of third-party defendant under a respondeat superior theory.
"The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment" [CB v. Incorporated Pillage of Garden City, 194 A.D.3d 897. 899 (2d Dept. 2021) (internal quotation marks and citation omitted)]. "Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results" [id. (citing Matter of O 'Brian v. Spitzer, 7 N.Y.3d 239 (2006)]. "Control of the method and means by which the work is to be done is the critical factor in determining whether one is an independent contractor or an employee for purposes of tort liability" Sanabria v. Aguero-Borges, 117 A.D.3d 1024, 1025 (2d Dept. 2014) (citations omitted)]. "Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll, and (5) was on a fixed schedule" [CB v. Incorporated Village of Garden City, supra at 899].
Moffitt established, prima facie, that third-party defendant was an independent contractor and not an employee at the time of the accident. Moffitt *s papers demonstrated, inter alia, that third-party defendant: had no set work schedule; submitted his hours on a piece of paper and was then paid in cash; was free to engage in other employment (and did, with Triple J); and received no fringe benefits. However, in opposition plaintiffs raised triable issues of fact as to whether third-party defendant was an employee of Moffitt and Solvang Tree Farm or an independent contractor. Plaintiffs demonstrated, through third-party defendant's deposition testimony, that: third-party defendant had no skill or judgment in the manner or method of using the log splitter and that Moffitt showed him how to use it [Mendoza Dep Tr, NYSCKF Docket No. 97, pp 26, 46-47]; Moffitt told plaintiff and third-party defendant what work they were to perform on April 28, 2018 [id. at p 28]; third-party defendant and plaintiff knew that on weekends they did work for Moffitt at the Property; [id at p 85]; all instructions on which power tools to use for work on the Property came from Moffitt [id. at p 32]; plaintiff and third-party defendant utilized tools and materials furnished by Moffitt for all work done on the Property [id. at p 19]; third-party defendant was not hired to perform a specific job or task, but to perform work generally for Moffitt, for an indefinite period of time; and third-party defendant was paid an hourly wage in cash and was not paid by the job [id. alp 18].
Based upon the foregoing, and because the question of whether an actor is an employee or independent contractor is usually a factual issue for the jury, Moffitt's motion is denied as to the plaintiffs' claim that Moffitt is responsible for the negligence of third-party defendant under respondeat superior [see Sirigncmo v. Jencik 123 A.D.3d 1002 (2d Dept. 2014)]. Moreover, there arc questions of fact regarding whether Moffitt had any "special knowledge concerning a characteristic or condition peculiar to [third-party defendant] which rendered] [his] use of the [log splitter] unreasonably dangerous, as is required to establish a negligent entrustment cause of action" [Deschamps, 172 A.D.3d al 1310 (internal quotation marks and citation omitted)]. Thus, Moffitt's motion is also denied as to the plaintiffs' claim of negligent entrustment.
The plaintiffs cross-moved for summary judgment against Moffitt (Sequence No. 4). They argued that third-party defendant, as a matter of law, was Moffitt's employee at the time of the accident. Given the above-referenced issues of material fact, plaintiffs' cross-motion for summary judgment against Moffitt is also denied.
III. Plaintiffs' Cross-Motion against Third-Party Defendant (Sequence No. 4)
Plaintiffs also cross-moved for summary judgment against third-party defendant. The cross-motion is denied as the plaintiffs have not asserted any claim against third-party defendant [see Time v. Whipple-Allen Const. Co.. Inc., 245 A.D.2d 1061 (4th Dept. 1997)]. Moreover, the cross-motion must be denied "as an improper vehicle for seeking affirmative relief from [third-party defendant], a nonmoving party" [Mango v. Long Island Jewish Med. Or., 123 A.D.2d 843, 844 (2d Dept. 1986); see also CPLR 2215; Terio v. Spodek, 25 A.D.3d 781 (2d Dept. 2006)].
Based upon the foregoing, it is hereby
ORDERED that Triple J's motion for summary judgment (Sequence No. 2) is granted and the second amended complaint insofar as asserted against it, and any cross claims, are dismissed; and it is further
ORDERED that Moffitt's motion for summary judgment (Sequence No. 3) is granted in part and denied in part; and it is further
ORDERED that Plaintiffs' cross-motion for summary judgment (Sequence No. 4) is denied; and it is further
ORDERED that counsel for plaintiffs and defendant Moffitt, as well as third-party defendant Juan Dedios Lavariega Mendoza, shall appear in this court for a conference (in-person) on November 30, 2021 at 9:15 a.m.
The foregoing constitutes the Decision and Order of the Court.