Preview
FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 09/20/2021
EXHIBIT F
FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 09/20/2021
Temporarily unable to receive Shepard’s Signal™
As of: September 16, 2021 5:42 PM Z
Cabrera v. Ups
Supreme Court of New York, New York County
July 1, 2020, Decided; September 14, 2020, Published
453205/2015
Reporter
2020 NYLJ LEXIS 1411 *
judgment motion, finding conflicting expert reports as to
Cabrera v. United Parcel Serv. Inc.
whether the UPS driver should reasonably have been expected
to detect the presence of the boom lift bucket over his lane of
Notice: © [2020] ALM Media Properties, LLC. All rights
traffic. [*2]
reserved. Further duplication without permission is
prohibited. www.nylj.com Full Case Digest Text
(Cabrera v. United Parcel Serv. Inc., NYLJ, Sep. 14, 2020 at ADDITIONAL CASES
p.17, col.1)
United Parcel Service, Inc. and Robert A. Kreitzer, Jr., Third-
Party Plaintiffs, v. Altitude Equipment Rentals, LLC, Third-
Core Terms Party Defendant
lift, boom, trained, third-party, summary judgment, amended Altitude Equipment Rentals, LLC Second Third-Party
complaint, cross claim, summary judgment motion, Rentals, Plaintiff,v. Creative Christmas, Inc., Second Third-Party
rented, sequence, bucket, motor vehicle, Defendants', Defendant
platform, dealer, user, rental agreement, issue of fact, asserts,
negligent entrustment, vicarious liability, default judgment, The following e-filed documents, listed by NYSCEF
matter of law, indemnification, counterclaims, contractor, document number (Motion 001) 151-187, 212-249, 284-291,
personnel, detected, traffic 315-317, 320; (Motion 002) 76-92, 194-211, 292-299, 302,
303, 321; (Motion 003) 93-141, 256-283, 300, 304-314 were
Judges: [*1] Judge: Justice Paul Goetz read on this motion to/for SUMMARY JUDGMENT.
Opinion This action stems from an accident that occurred on
November 5, 2013, when Henry Esteban Salinas Cerrato (the
decedent) was thrown from the bucket of a telescopic boom
lift he was working in while installing holiday lights on trees
Decedent, an employee of defendant Creative Christmas Inc.,
located in front of a building on Columbus Avenue between
was hit by a UPS truck and thrown from the bucket of a
West 67th and West 68th Streets in Manhattan (the Premises).
telescopic boom lifthe was working in while installing
The decedent died as a result of the injuries he sustained in
holiday lights on trees located in front of a Manhattan
the accident. By order dated December 8, 2015, thisaction
building, and died from his injuries. Altitude Equipment
was joined for the purposes of discovery and trial with a
Rentals LLC, which leased the boom lift to Creative for the
related action arising out of the same accident captioned
job, moved for summary judgment dismissing the complaint
Alterra America Insurance Company v. Creative
as asserted against it. The court granted Altitude's motion, as
Christmas [*3] Inc., Index No. 152547/2015. In motion
it did not direct the decedent or the operation of the boom lift.
sequence number 001, Altitude Equipment Rentals, LLC
In addition, Altitude could not be held liable under Vehicle
(Altitude), moves, pursuant to CPLR 3212, for summary
and Traffic Law (VTL) §388 because the boom lift was not a
judgment dismissing (1) the amended complaint and the third-
"motor vehicle" for purposes of the statute as it is a machine
party complaint insofar as asserted against it in the action
that has multiple functions. The court denied premises owner
bearing Index No. 453205/2015 (the Cabrera Action), (2) the
Lincoln Square Condominium's motion for summary
third-party complaint insofar as asserted against it in the
judgment, finding an issue of fact as to whether Lincoln
action bearing Index No. 152547/2015 (the Alterra Action),
provided a parking space for the boom lift, a proximate cause
and (3) all cross claims asserted against it in both actions.
of the accident. The court also denied UPS's summary
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In motion sequence number 002, Wilmer Cabrera, as the seeking damages for common-law negligence, wrongful
administrator of the decedent's estate (Cabrera), moves for a death, and punitive damages (Supplemental Summons and
default judgment against Creative Christmas, Inc. (Creative) Amended Complaint, NYSCEF Doc. No. 22 [Index No.
in the Cabrera Action. In a second, separate motion 453205/2015]).1 Altitude answered and asserted cross claims
denominated motion sequence number 002, Lincoln Square against UPS, Kreitzer, Creative, and Lincoln for contribution
Condominium (Lincoln) moves, pursuant to CPLR 3212, for and indemnification (Altitude's Answer to Amended
summary judgment dismissing the amended complaint insofar Complaint, NYSCEF Doc. No. 23 [Index No. 453205/2015]).
as asserted against it and all cross claims asserted against it in
UPS and Kreitzer separately answered and asserted cross
the Cabrera Action. claims against Creative and Lincoln for contribution (UPS
Answer to Amended Complaint, NYSCEF Doc. No. 26;
In motion sequence number 003, United Parcel Service, Inc. Kreitzer's Answer to Amended Complaint, NYSCEF Doc.
(UPS) and Robert A. Kreitzer, Jr. (Kreitzer) (together,the No. 25 [Index No. 453205/2015]). Lincoln answered and
UPS Defendants) move, pursuant to CPLR 3212, for summary asserted cross [*6] claims against UPS, Kreitzer, Creative,
judgment dismissing (1) the amended complaint insofar as and Altitude for contribution and/or indemnification
asserted [*4] against them in the Cabrera Action, (2) the (Lincoln's Answer to Amended Complaint, NYSCEF Doc.
complaint insofar as asserted against them in the Alterra No. 33 [Index No. 453205/2015]).
Action, and (3) all counterclaims and cross claims asserted
against them in both actions. UPS and Kreitzer also initiateda third-party action against
Altitude for contribution (Third-Party Complaint, NYSCEF
Motion sequence numbers 001, 002, and 003 are consolidated Doc. No. 16 [Index No. 453205/2015]). Altitude asserted
for disposition. cross claims against Creative and Lincoln and counterclaimed
BACKGROUND against UPS and Kreitzer for contribution and/or
indemnification (Altitude's Answer to Third-Party Complaint,
On the date of the accident, Lincoln owned the Premises and, NYSCEF Doc. No. 18 [Index No. 453205/2015]).2
pursuant to a contract, hired Creative to hang holiday lights
on the trees located along the sidewalk of Columbus Avenue The Alterra Action
and West 67th Street.Creative employed the decedent and
Christian Baquedano to installthe lights using a telescopic In the Alterra action, Alterra America Insurance Company
boom lift provided to them by Creative. Creative leased the (Alterra), the insurer of the boom lift, alleges that it
boom lift from Altitude. reimbursed Altitude the sum of $80,166.00 for the damage
sustained to the boom liftand seeks reimbursement of that
sum from Creative, 3 UPS, and Kreitzer (Summons and
The decedent parked the boom liftnext to a tree, in the
parking lane on Columbus Avenue near the corner of 67th Complaint, NYSCEF Doc. No. 1 [Index No. 152547/2015]).4
Street, with the bucket hanging partially over the right travel UPS and Krietzer each answered and asserted cross claims
lane of traffic in order to reach the tree branches. Adjacent to
the base of the boom lift were three orange traffic cones. At
approximately 1:30 a.m., a UPS tractor traileroperated by 1 As reflectedin Ecourts,it appears thatthe cause of action for
Kreitzer struck the bucket that the decedent and Baquedano punitive damages was dismissed insofar as asserted against the UPS
were working in. As a resultof the collision, they were Defendants by an order of the Supreme Court, Kings County, dated
thrown from the bucket and sustained injuries. The next September 24, 2015.
day, [*5] the decedent died as a result of his injuries. 2 Altitudeinitiateda second third-partyaction againstCreative,
The Cabrera Action which Altitude voluntarily discontinued on October 3, 2019 (Second
Third-Party Summons and Complaint, NYSCEF Doc No. 52; Notice
Cabrera filed the Cabrera Action in the Supreme Court, Kings of Discontinuance, NYSCEF Doc. No. 322 [Index No.
County under Index No. 503785/2015. By order dated 453205/2015]).
December 18, 2015, the Cabrera Action was transferred to the 3 Creativefailedto appear oranswer the complaint inthe Alterra
Supreme Court, New York County, and joined with the Action. By order dated May 13, 2016, the court granted Altera's
Alterra Action for the purposes of discovery and jointtrial motion for a default judgment against Creative in the Alterra Action
(see Amended Dec & Order, NYSCEF Doc. No. 48 [Index (NYSCEF Doc. No. 61 [Index No. 152547/2015]).
No. 152547/2015]). 4 Alterraalsonamed United Parcel Service General Services Co.,
d/b/a/ UPS (UPSGS) as a defendant in the Alterra action, but has
In the amended complaint, Cabrera alleges causes of action discontinued all claims against UPSGS (see Stipulation of
against UPS, Kreitzer, Creative, Lincoln, and Altitude, Discontinuance, NYSCEF Doc. No. 17 [Index No. 152547/2015]).
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against Creative for,inter alia,contribution (UPS's Answer, Tusa, Last & Spellane, LLC, 157 AD3d 479, 481 [1st Dept
NYSCEF Doc. No. 7; Kreitzer's Answer, NYSCEF Doc. No. 2018]). "[S]ummary judgment is a drastic remedy that should
9 [Index No. 152547/2015]). be employed only when there is no doubt as to the absence of
triable issues" (Aguilar v. City of New York, 162 AD3d 601,
UPS and Kreitzer initiated a third-party action against 601 [1st Dept 2018]).
Altitude and Lincoln seeking [*7] damages for negligence on
behalf of UPS and contribution on behalf of UPS and Kreitzer Altitude's Motion for Summary Judgment
(Third-Party Summons and Complaint, NYSCEF Doc. No. 20
[Index No. 152547/2015]). In the third-party action, Lincoln Altitude now moves for summary judgment dismissing (1) the
cross-claimed against Creative and Altitude for contribution amended complaint and the third-partycomplaint insofar as
and/or indemnification (Lincoln's Answer, NYSCEF Doc. No. asserted against it in the Cabrera Action, (2) the third-party
34 [Index No. 152547/2015]) and Altitude asserted cross complaint insofar as asserted against it in the Alterra Action,
claims against Creative and Lincoln and counterclaimed and (3) all counterclaims and cross claims asserted against it
against UPS and Kreitzer for contribution and/or in both actions.
indemnification (Altitude's Answer, NYSCEF Doc. No. 35
Altitude contends that it played no role in the occurrence of
[Index No. 152547/2015]). Altitude also initiateda second
the [*9] accident. It merely rented the boom lift to Creative.
third-party action against Creative for contribution and/or
It did not supervise, direct and/or control Creative's work or
indemnification (Second Third-Party Summons and
its use of the boom lift, and it did not have any employees at
Complaint, NYSCEF Doc. No. 139 [Index No.
the site where the accident occurred. Altitude assertsthat it
152547/2015]).
agreed to rent the boom lift to Creative based on conditions
On April 8, 2019, Cabrera, Alterra, UPS, Kreitzer, Altitude, including that only properly trained personnel would be
and Lincoln stipulated that "in the interest of judicial allowed to operate it. As such, Altitude claims that there is no
economy and time," they would "accept and apply the basis for any negligence or negligent entrustment claims
determination as to culpable conduct and allocation of against it.
liability reached in the...Cabrera Action for all purposes in the
[Alterra] action" (Stipulation, NYSCEF Doc. No. 141 [Index Altitude further contends that it is not subject to vicarious
No. 152547/2015]). liability under Vehicle and Traffic Law (VTL) §388 because,
among other things, the boom liftis not a "motor vehicle"
DISCUSSION under the VTL. Moreover, even if the court were to find that
the boom lift should be classified as a "motor vehicle," then
Summary Judgment Standard
Altitude would be immune from vicarious liability under the
Graves Amendment (49 USC §30106 [a]).
"On a motion for summary judgment, facts [*8] must be
viewed 'in the light most favorable to the non-moving party'" In opposition, Cabrera and the UPS Defendants maintain that
(Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012], Altitude failed to satisfy its prima facie burden to judgment as
quoting Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 a matter of law. They contend, for various reasons, that the
[2011]). The "movant bears the heavy burden of establishing court should not consider certain affidavits submitted by
'a prima facie showing of entitlement to judgment as a matter Altitude in support of itsmotion. They further argue that
of law, tendering sufficient evidence to demonstrate the Altitude concedes that the [*10] American National
absence of any material issues of fact'" (Deleon v. New York Standards Institute's (ANSI) standards for renting boom-
City Sanitation Dept., 25 NY3d 1102, 1106 [2015], quoting supported elevating work platforms represent the industry's
Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see custom and practice, but that Altitude provided no evidence
Winegrad v. New York Univ. Med. Ctr.,64 NY2d 851, 853 that it complied with these standards.
[1985]; Zuckerman v. City of New York, 49 NY2d 557, 562
[1980]). "Once this showing has been made..., the burden Cabrera and the UPS Defendants also argue that Altitude
shifts to the party opposing the motion...to produce failed to demonstrate that there are no material issues of fact
evidentiary proof in admissible form sufficient to establish the regarding negligent entrustment inasmuch as it rented the
existence of material issues of fact which require a trial of theboom liftto Creative when it should have known thatthe
action" (Alvarez v. Prospect Hosp., 68 NY2d at 324; see decedent was incompetent to operate it. In addition, they
Zuckerman v. City of New York, 49 NY2d at 562). contend that VTL §388 applies to impose vicarious liability on
Altitude inasmuch as the boom lift is a "motor vehicle" under
"[T]he court's function is issue finding rather than issue the VTL given that it is a self-propelled vehicle being
determination" (Genesis Merchant Partners, L.P. v. Gilbride, operated or driven upon a public highway.
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Finally, Cabrera and the UPS Defendants argue that Altitude (Rental Agreement at §2, NYSCEF Doc. No. 172 [Index No.
is not immune from vicarious liability under the Graves 453205/2015]). [*13] By including the this provision in the
Amendment inasmuch as it has not demonstrated that it is rental agreement, Altitude expressly conditioned Creative's
engaged in the trade or business of renting or leasing motor use of the boom lift on proper training and PPE being
vehicles that are manufactured primarily for use on public provided to the operator of the machine. Cabrera and the UPS
streets, roads and highways and that, in any event, Altitude is Defendants cite no authority for the proposition that Altitude
not entitled to the protections of the Graves Amendment for had a further duty to investigate whether the employees used
its own negligence. In this regard, Cabrera [*11] and the UPS by Creative were, in fact, properly trained to operate the boom
Defendants point out that Altitude is being sued for its own lift.
negligence, including violations of ANSI standards and
negligent entrustment. For the reasons set forth below, Altitude also submits the affidavitof engineer Peter Chen,
Altitude's motion is granted. who conducted an inspection of the boom lift and reviewed
"the documentary evidence developed in thisaction" (Chen
It is axiomatic that "[i]n order to prevail on a negligence Affidavit,
claim, a plaintiff must demonstrate (1) a duty owed by the
defendant to the plaintiff, (2) a breach thereof, and (3) injury 5, NYSCEF Doc. No. 189 [NYSCEF Doc. No.
453205/2015]). Chen opines that the rental agreement
proximately resulting therefrom. In the absence of a duty, as a
"contained standard industry conditions for the rentalof lift
matter of law, there can be no liability" (CB v. Howard Sec.,
equipment and, as per industry custom and practice, the lessee
158 AD3d 157, 164 [1st Dept 2018] [internal quotation marks
and operator of the equipment, in this case Creative, remained
and citations omitted]). "The existence and scope of a duty of
responsible to take all necessary safety precautions and to use
care is a question of law for the courts entailing the
only properly trained operators to operate the rented
consideration of relevant policy factors" (Church v. Callanan
equipment" (id. at
Indus., 99 NY2d 104, 110-111 [2002]).
14). Chen also opines that "[a]s per industry custom and
Here, Cabrera is not proceeding on a theory that Altitude was
practice and ANSI 92.5, Altitude, as the renter of the
negligent in maintaining the boom lift in good working order
equipment, would not retain responsibility over its operation
and repair, or that the accident was caused by any defect in
and use while it [*14] was in possession of the lessor" (id. at
the boom lift. Rather, he alleges that Altitude breached a duty
of care to ensure and/or verify that the person operating the
15).5
boom lift was properly trained. However, Altitude
established, as a matter of law, that it used reasonable care to Cabrera and the UPS Defendants argue that Altitude's motion
ensure that the person operating the boom liftwould be must be denied because Altitude failed to demonstrate that it
properly trained. In this [*12]regard, Altitude submits a copy complied with ANSI standards A92.5 §5.2.1, A92.5 §5.2.2,
of the rental agreement between it and Creative, which A92.5 §5.7, A92.5 §5.8, and A92.5 §5.11.1, and therefore
provides in relevant part: failed to establish its prima facie entitlement to judgment as a
matter of law on the negligence claim against it (see ANSI
"[Creative] is prohibited from authorizing or permitting other
Standards, NYSCEF Doc. No. 246 [Index No. 453205/2015]).
than properly trained personnel or any third party to operate
These standards pertain to "dealers,"such as Altitude, who
the equipment. [Creative] warrants that:...(d) [it] has received
rent boom-supported elevating work platforms (A92.5 §§3,
from Altitude all information needed or requested regarding
5). Broadly stated, they require dealers to keep, among other
the operation of the Equipment; (e) Altitude is not responsible
things, copies of the Operating Manual and Manual of
for providing operator or other training. ([Creative] being
Responsibilities in each rental, and to offer training to owners,
responsible to obtain all training that [Creative] desires prior
to the Equipment's use); (f) only authorized individuals shall
use and operate the Equipment ('authorized individuals' being
those who are properly trained to use the Equipment...; (g) the 5 Cabreraand the UPS Defendants argue that Altitudeshould be
Equipment's use shall be implemented in a careful manner, in precluded from introducing Chen's affidavitbecause itdid not
compliance with all operational and safety instructions disclose him as an expert under CPLR 3101 (d) before the notes of
provided on, in or with the Equipment and all Federal, State issue were filed or since then. "However, CPLR 3212 (b) expressly
and local laws and licenses, including but not limited to, permits the submission of expert affidavits
in connection with a
OSHA; and Renter is responsible for providing their operators summary judgment motion, even where an expert exchange pursuant
with all (PPE) personal protection equipment to include but to CPLR 3101 (d) was not furnished prior to the affidavit's
not limited to harness and lanyards" submission" (Brown v. 43-25 Hunter, L.L.C., 178 AD3d 493, n 1
[1st Dept 2019]).
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users, and operators. They also require dealers to maintain [Index No. 453205/2015]). Altitude also submits the affidavit
records of the names of those trained, the names of persons of Darren Levine, Altitude'sVice President during the time
providing the training, the date of training, and the names "of relevant to this action (Levine Affidavit, NYSCEF Doc. No.
person(s) receiving familiarization with the aerial platform 181 [Index No. 453205/2015]). Levine statesthat "Altitude
upon each delivery unless this individual has been provided did not retain possession, custody, care or control of the
with familiarization on the same model, or one having Boom Lift at any time during the rental term after delivery on
characteristics consistent with the one being delivered, within November 1, 2013 or during any of the four (4) days leading
the prior 90 days" [*15] (A92.5 §5.11.1). up to the collision...did not supervise or direct the means or
methods of Creative's work and it assumed no duty to do so"
ANSI requirements may "be considered...as some evidence of (id. at
negligence if it is first found that the standards set
forth...[represent] the general custom or usage in the industry" 18-19, 28).6 In opposition, Cabrera and the UPS Defendants
(Sawyer v. Dreis & Krump Mfg. Co., 67 NY2d 328, 337 proffer no evidence indicating that Altitude directed the
[1986][emphasis added]). Here, even assuming ANSI 92.5 decedent or Baquedano to operate the lift. As such, Cabrera
represents the general custom or usage in the industry, and the UPS Defendants' reliance on the ANSI standards is
viewing these standards as a whole, they place the misplaced.
responsibility on Creative for training and assuring that
persons directed to operate the boom lift are trained. With respect to the claim for negligent entrustment, the tort
Specifically in this regard, section A 92.5 defines "user" as "is based on the degree of knowledge the supplier of a chattel
"[p]erson(s) or entity(ies) that has care, control, and custody has or should have concerning the entrustee's propensity to
of the aerial platform," which "may also be the employer of use the chattel in an improper or dangerous fashion"
the operator, a dealer, employer, owner, lessor, lessee,or (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 237 [2001]).
operator" (A92.5 §3). In this case, Creative (not Altitude) had "To establish a cause of action under a theory of negligent
the care, control, and custody of the boom lift and served as entrustment, the defendant must either have [*18] some
the decedent's employer, and therefore falls under the special knowledge concerning a characteristic or condition
definition of "user." The standards state that "[s]ince the user peculiar to the [person to whom a particular chattel is given]
has direct control over the application and operation of aerial which renders [that person's] use of the chattel unreasonably
platforms, conformance with good safety practices in this area dangerous...or some special knowledge as to a characteristic
[it] is the responsibility of the user and the operating or defect peculiar to the chattel which renders it unreasonably
personnel" (A92.5 §7.1). Further, as the "user," Creative dangerous" (Byrne v. Collins, 77 AD3d 782, 784 [2d Dept
"shall [*16] ensure" that the person directed to operate the 2010] [internal quotation marks and citations omitted]
aerial platform has been "trained" and "familiarized" with the [emphasis in original]).
equipment (A92.5 §7.6 [1], [2]) and "shall permit only
properly trained personnel to operate an aerial platform" Here, Altitude demonstrated its prima facie entitlement to
(A92.5 §7.7). Importantly, the standards also specify thata judgment as a matter of law dismissing the negligent
dealer "shall assume the responsibilities of users" when the entrustment claim through the affidavit of Levine, wherein he
dealer "directs personnel to operate an aerial platform" (A92.5 states that Altitude had leased similar telescoping boom lifts
§5.9). Therefore, the standards place the responsibility for to Creative on several prior occasions between November 7,
safety practices and training on the user (in this case, 2012 and April 15, 2013 (Levine Affidavit at
Creative), and only shifts this responsibility to the dealer (in
6, NYSCEF Doc. No. 181 [Index No. 453205/2015]). He
this case, Altitude) when the dealer directs the personnel to
operate the equipment. This is consistent with Chen's opinion
that as per industry custom and practice, the lessee and 6 Cabreraand theUPS Defendants contend thatLevine's affidavit
operator remains responsible to take all necessary safety should be disregarded because Altitude failed to disclose Levine as a
precautions and to use only properly trained operators to possible fact witness during the discovery process. However, they
operate the rented equipment. were aware, prior to the filing of the note of issue, that Levine was
identified as Altitude's former Vice President who handled rentals
Altitude established that it did not direct the decedent or and ran its day to day operations at the time of the accident and at the
Baquedano to operate the liftby submitting, among other time of its closure.This fact had been testifiedto by Altitude
things, the rental agreement pursuant to which Creative employee, Scott Robinson, during his May 4, 2017 deposition
agreed that "Altitude has no control over the manner in which (Robinson EBT trat 14-15, NYSCEF Doc. No. 217 [Index No.
the Equipment is operated during the Rental Period [*17] by 345205/2015]). Cabrera or the UPS Defendants could have, if
desired, sought a deposition from Levine. Therefore, Levine's
[Creative]" (Rental Agreement at §2, NYSCEF Doc. No. 172
affidavit will be considered.
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avers that during these prior rentals on "November 7, 2012, claims asserted against it in the Cabrera Action.
November 8, 2012, December 28, 2012, January 13, 2013 and
April 15, 2013, Altitude was not made aware and received no In support of its motion, Lincoln argues that Creative was in
complaints from any source that Creative was using Altitude's the business of placing lights in trees and took no direction or
equipment in an improper or unsafe manner or that it was not instruction from Lincoln. Creative hired its employees and
complying with the terms of the rental Agreement" (id. at gave them whatever instruction it felt was required. Creative
rented the boom lift and provided its employees with all the
7). Further, he states that "Altitude was also not [*19] aware materials they required such as the lights and extension cords.
of any prior accidents or incidents involving Creative's rental Lincoln asserts that it provided no [*21] materials,
and use of Altitude's equipment" (id. at supervision, direction or control over the manner and method
of the work performed by Creative. Therefore, it asserts,it
8). In opposition to Altitude's prima facie showing, Cabrera was not negligent and cannot be vicariously liable for any
and the UPS Defendants fail to raise a triable issue of fact as alleged negligence on the part of Creative.
to whether or not Altitude possessed special knowledge
concerning a characteristic or condition peculiar to Creative In opposition, Cabrera and the UPS Defendants contend that
that rendered its use of the boom lift unreasonably dangerous. Lincoln's argument that it had no direction or control over the
decedent's work is contrary to the evidence. They argue that
As to the issue of vicarious liability, VTL §388 (1) provides" the contract between Creative and Lincoln specifically
required Lincoln to provide a location to park the boom lift
"every owner of a vehicle used or operated in this state shall during light installation and removal. They further argue that
be liable and responsible for death or injuries to person or the contract's express terms conflict with Lincoln's testimony
property resulting from negligence in the use or operation of that itdid not provide a parking location for the boom lift.
such vehicle, in the business of such owner or otherwise, by This conflict,they assert,involves a material issue of fact
any person using or operating the same with the permission, because the boom lift'slocation proximately caused the
express or implied, of such owner." accident, and therefore Lincoln is not entitled to summary
judgment. For the reasons that follow, Lincoln's motion is
The statute does not apply to the facts of this case because the
denied.
boom lift is "a machine that has multiple functions" and was
not functioning as a "vehicle" at the time of the accident "A party who hires an independent contractor is generally not
(Monell v. International Bus. Machs. Corp., 47 AD2d 637, liable for the independent contractor's negligence" (Flaherty
638 [2d Dept 1975], affd 38 NY2d 888 [1976]). Moreover, v. Fox House Condo., 299 AD2d 448, 448 [2d Dept 2002]).
even assuming that under the circumstances of this case, the "Although several justifications have been offered in support
boom lift is properly characterized as a "motor vehicle," the of this rule, the most commonly accepted rationale is
Graves Amendment would apply to shield Altitude from based [*22] on the premise that one who employs an
vicarious liability [*20] (see generally Olmann v. Neil, 132 independent contractor has no right to control the manner in
AD3d 744, 745 [2d Dept 2015] ["Pursuant to the Graves which the work is to be done and, thus, the risk of loss is more
Amendment (49 USC §30106), generally, the owner of a sensibly placed on the contractor" (Kleeman v. Rheingold, 81
leased or rented motor vehicle cannot be held liable for NY2d 270, 274 [1993]). Exceptions to the rule include
personal injuries resulting from the use of such vehicle if: (1) situations where the party
the owner is engaged in the trade or business of renting or
leasing motor vehicles, and (2) there is no negligence or "(1) is under a statutory duty to perform or control the work,
criminal wrongdoing on the part of the owner"]). (2) has assumed a specific duty by contract, (3) is under a
duty to keep premises safe, or (4) has assigned work to an
Cabrera's and the UPS Defendants' remaining arguments with independent contractor which the employer knows or has
respect to Altitude's motion for summary judgment have been reason to know involves special dangers inherent in the work
considered and they are without merit. or dangers which should have been anticipated by the
employer"
Accordingly, Altitude's motion for summary judgment will be
granted.
(Rosenberg v.Equitable Life Assur. Socy. of U.S.,79 NY2d
Lincoln's Motion for Summary Judgment 663, 668 [1992] [emphasis added]; see Flaherty v. Fox House
Condo., 299 AD2d at 449). "In such instances, the employer
Lincoln moves for summary judgment dismissing the cannot insulate itself from liability by claiming that it was not
amended complaint insofar as asserted against it and all cross negligent: the employer isvicariously liable for the faultof
Carol Notias Kotsinis
FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019
NYSCEF DOC. NO. 110 RECEIVED NYSCEF:
Page 7 of09/20/2021
9
2020 NYLJ LEXIS 1411, *22
the independent contractor because a legal duty is imposed on illumination at the time of the accident. The UPS Defendants
itwhich cannot be delegated" (Rosenberg v. Equitable Life assert, therefore, that they owed no duty to the decedent and
Assur. Socy. of U.S., 79 NY2d at 668 ). are not liable for the accident.
Here, in support of its motion, Lincoln relies on the deposition The UPS Defendants also argue that the accident was caused
testimony of William Murphy, Lincoln's Residence Manager, by the decedent, Baquedano, [*25] Creative, Lincoln, and
who served as Lincoln's contact with Creative (Murphy EBT Altitude's failure to have a safe work zone with trained
tr, NYSCEF Doc. Nos. 83
Preview
FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 09/20/2021 EXHIBIT F FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 09/20/2021 Temporarily unable to receive Shepard’s Signal™ As of: September 16, 2021 5:42 PM Z Cabrera v. Ups Supreme Court of New York, New York County July 1, 2020, Decided; September 14, 2020, Published 453205/2015 Reporter 2020 NYLJ LEXIS 1411 * judgment motion, finding conflicting expert reports as to Cabrera v. United Parcel Serv. Inc. whether the UPS driver should reasonably have been expected to detect the presence of the boom lift bucket over his lane of Notice: © [2020] ALM Media Properties, LLC. All rights traffic. [*2] reserved. Further duplication without permission is prohibited. www.nylj.com Full Case Digest Text (Cabrera v. United Parcel Serv. Inc., NYLJ, Sep. 14, 2020 at ADDITIONAL CASES p.17, col.1) United Parcel Service, Inc. and Robert A. Kreitzer, Jr., Third- Party Plaintiffs, v. Altitude Equipment Rentals, LLC, Third- Core Terms Party Defendant lift, boom, trained, third-party, summary judgment, amended Altitude Equipment Rentals, LLC Second Third-Party complaint, cross claim, summary judgment motion, Rentals, Plaintiff,v. Creative Christmas, Inc., Second Third-Party rented, sequence, bucket, motor vehicle, Defendants', Defendant platform, dealer, user, rental agreement, issue of fact, asserts, negligent entrustment, vicarious liability, default judgment, The following e-filed documents, listed by NYSCEF matter of law, indemnification, counterclaims, contractor, document number (Motion 001) 151-187, 212-249, 284-291, personnel, detected, traffic 315-317, 320; (Motion 002) 76-92, 194-211, 292-299, 302, 303, 321; (Motion 003) 93-141, 256-283, 300, 304-314 were Judges: [*1] Judge: Justice Paul Goetz read on this motion to/for SUMMARY JUDGMENT. Opinion This action stems from an accident that occurred on November 5, 2013, when Henry Esteban Salinas Cerrato (the decedent) was thrown from the bucket of a telescopic boom lift he was working in while installing holiday lights on trees Decedent, an employee of defendant Creative Christmas Inc., located in front of a building on Columbus Avenue between was hit by a UPS truck and thrown from the bucket of a West 67th and West 68th Streets in Manhattan (the Premises). telescopic boom lifthe was working in while installing The decedent died as a result of the injuries he sustained in holiday lights on trees located in front of a Manhattan the accident. By order dated December 8, 2015, thisaction building, and died from his injuries. Altitude Equipment was joined for the purposes of discovery and trial with a Rentals LLC, which leased the boom lift to Creative for the related action arising out of the same accident captioned job, moved for summary judgment dismissing the complaint Alterra America Insurance Company v. Creative as asserted against it. The court granted Altitude's motion, as Christmas [*3] Inc., Index No. 152547/2015. In motion it did not direct the decedent or the operation of the boom lift. sequence number 001, Altitude Equipment Rentals, LLC In addition, Altitude could not be held liable under Vehicle (Altitude), moves, pursuant to CPLR 3212, for summary and Traffic Law (VTL) §388 because the boom lift was not a judgment dismissing (1) the amended complaint and the third- "motor vehicle" for purposes of the statute as it is a machine party complaint insofar as asserted against it in the action that has multiple functions. The court denied premises owner bearing Index No. 453205/2015 (the Cabrera Action), (2) the Lincoln Square Condominium's motion for summary third-party complaint insofar as asserted against it in the judgment, finding an issue of fact as to whether Lincoln action bearing Index No. 152547/2015 (the Alterra Action), provided a parking space for the boom lift, a proximate cause and (3) all cross claims asserted against it in both actions. of the accident. The court also denied UPS's summary Carol Notias Kotsinis FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: Page 2 of09/20/2021 9 2020 NYLJ LEXIS 1411, *3 In motion sequence number 002, Wilmer Cabrera, as the seeking damages for common-law negligence, wrongful administrator of the decedent's estate (Cabrera), moves for a death, and punitive damages (Supplemental Summons and default judgment against Creative Christmas, Inc. (Creative) Amended Complaint, NYSCEF Doc. No. 22 [Index No. in the Cabrera Action. In a second, separate motion 453205/2015]).1 Altitude answered and asserted cross claims denominated motion sequence number 002, Lincoln Square against UPS, Kreitzer, Creative, and Lincoln for contribution Condominium (Lincoln) moves, pursuant to CPLR 3212, for and indemnification (Altitude's Answer to Amended summary judgment dismissing the amended complaint insofar Complaint, NYSCEF Doc. No. 23 [Index No. 453205/2015]). as asserted against it and all cross claims asserted against it in UPS and Kreitzer separately answered and asserted cross the Cabrera Action. claims against Creative and Lincoln for contribution (UPS Answer to Amended Complaint, NYSCEF Doc. No. 26; In motion sequence number 003, United Parcel Service, Inc. Kreitzer's Answer to Amended Complaint, NYSCEF Doc. (UPS) and Robert A. Kreitzer, Jr. (Kreitzer) (together,the No. 25 [Index No. 453205/2015]). Lincoln answered and UPS Defendants) move, pursuant to CPLR 3212, for summary asserted cross [*6] claims against UPS, Kreitzer, Creative, judgment dismissing (1) the amended complaint insofar as and Altitude for contribution and/or indemnification asserted [*4] against them in the Cabrera Action, (2) the (Lincoln's Answer to Amended Complaint, NYSCEF Doc. complaint insofar as asserted against them in the Alterra No. 33 [Index No. 453205/2015]). Action, and (3) all counterclaims and cross claims asserted against them in both actions. UPS and Kreitzer also initiateda third-party action against Altitude for contribution (Third-Party Complaint, NYSCEF Motion sequence numbers 001, 002, and 003 are consolidated Doc. No. 16 [Index No. 453205/2015]). Altitude asserted for disposition. cross claims against Creative and Lincoln and counterclaimed BACKGROUND against UPS and Kreitzer for contribution and/or indemnification (Altitude's Answer to Third-Party Complaint, On the date of the accident, Lincoln owned the Premises and, NYSCEF Doc. No. 18 [Index No. 453205/2015]).2 pursuant to a contract, hired Creative to hang holiday lights on the trees located along the sidewalk of Columbus Avenue The Alterra Action and West 67th Street.Creative employed the decedent and Christian Baquedano to installthe lights using a telescopic In the Alterra action, Alterra America Insurance Company boom lift provided to them by Creative. Creative leased the (Alterra), the insurer of the boom lift, alleges that it boom lift from Altitude. reimbursed Altitude the sum of $80,166.00 for the damage sustained to the boom liftand seeks reimbursement of that sum from Creative, 3 UPS, and Kreitzer (Summons and The decedent parked the boom liftnext to a tree, in the parking lane on Columbus Avenue near the corner of 67th Complaint, NYSCEF Doc. No. 1 [Index No. 152547/2015]).4 Street, with the bucket hanging partially over the right travel UPS and Krietzer each answered and asserted cross claims lane of traffic in order to reach the tree branches. Adjacent to the base of the boom lift were three orange traffic cones. At approximately 1:30 a.m., a UPS tractor traileroperated by 1 As reflectedin Ecourts,it appears thatthe cause of action for Kreitzer struck the bucket that the decedent and Baquedano punitive damages was dismissed insofar as asserted against the UPS were working in. As a resultof the collision, they were Defendants by an order of the Supreme Court, Kings County, dated thrown from the bucket and sustained injuries. The next September 24, 2015. day, [*5] the decedent died as a result of his injuries. 2 Altitudeinitiateda second third-partyaction againstCreative, The Cabrera Action which Altitude voluntarily discontinued on October 3, 2019 (Second Third-Party Summons and Complaint, NYSCEF Doc No. 52; Notice Cabrera filed the Cabrera Action in the Supreme Court, Kings of Discontinuance, NYSCEF Doc. No. 322 [Index No. County under Index No. 503785/2015. By order dated 453205/2015]). December 18, 2015, the Cabrera Action was transferred to the 3 Creativefailedto appear oranswer the complaint inthe Alterra Supreme Court, New York County, and joined with the Action. By order dated May 13, 2016, the court granted Altera's Alterra Action for the purposes of discovery and jointtrial motion for a default judgment against Creative in the Alterra Action (see Amended Dec & Order, NYSCEF Doc. No. 48 [Index (NYSCEF Doc. No. 61 [Index No. 152547/2015]). No. 152547/2015]). 4 Alterraalsonamed United Parcel Service General Services Co., d/b/a/ UPS (UPSGS) as a defendant in the Alterra action, but has In the amended complaint, Cabrera alleges causes of action discontinued all claims against UPSGS (see Stipulation of against UPS, Kreitzer, Creative, Lincoln, and Altitude, Discontinuance, NYSCEF Doc. No. 17 [Index No. 152547/2015]). Carol Notias Kotsinis FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: Page 3 of09/20/2021 9 2020 NYLJ LEXIS 1411, *6 against Creative for,inter alia,contribution (UPS's Answer, Tusa, Last & Spellane, LLC, 157 AD3d 479, 481 [1st Dept NYSCEF Doc. No. 7; Kreitzer's Answer, NYSCEF Doc. No. 2018]). "[S]ummary judgment is a drastic remedy that should 9 [Index No. 152547/2015]). be employed only when there is no doubt as to the absence of triable issues" (Aguilar v. City of New York, 162 AD3d 601, UPS and Kreitzer initiated a third-party action against 601 [1st Dept 2018]). Altitude and Lincoln seeking [*7] damages for negligence on behalf of UPS and contribution on behalf of UPS and Kreitzer Altitude's Motion for Summary Judgment (Third-Party Summons and Complaint, NYSCEF Doc. No. 20 [Index No. 152547/2015]). In the third-party action, Lincoln Altitude now moves for summary judgment dismissing (1) the cross-claimed against Creative and Altitude for contribution amended complaint and the third-partycomplaint insofar as and/or indemnification (Lincoln's Answer, NYSCEF Doc. No. asserted against it in the Cabrera Action, (2) the third-party 34 [Index No. 152547/2015]) and Altitude asserted cross complaint insofar as asserted against it in the Alterra Action, claims against Creative and Lincoln and counterclaimed and (3) all counterclaims and cross claims asserted against it against UPS and Kreitzer for contribution and/or in both actions. indemnification (Altitude's Answer, NYSCEF Doc. No. 35 Altitude contends that it played no role in the occurrence of [Index No. 152547/2015]). Altitude also initiateda second the [*9] accident. It merely rented the boom lift to Creative. third-party action against Creative for contribution and/or It did not supervise, direct and/or control Creative's work or indemnification (Second Third-Party Summons and its use of the boom lift, and it did not have any employees at Complaint, NYSCEF Doc. No. 139 [Index No. the site where the accident occurred. Altitude assertsthat it 152547/2015]). agreed to rent the boom lift to Creative based on conditions On April 8, 2019, Cabrera, Alterra, UPS, Kreitzer, Altitude, including that only properly trained personnel would be and Lincoln stipulated that "in the interest of judicial allowed to operate it. As such, Altitude claims that there is no economy and time," they would "accept and apply the basis for any negligence or negligent entrustment claims determination as to culpable conduct and allocation of against it. liability reached in the...Cabrera Action for all purposes in the [Alterra] action" (Stipulation, NYSCEF Doc. No. 141 [Index Altitude further contends that it is not subject to vicarious No. 152547/2015]). liability under Vehicle and Traffic Law (VTL) §388 because, among other things, the boom liftis not a "motor vehicle" DISCUSSION under the VTL. Moreover, even if the court were to find that the boom lift should be classified as a "motor vehicle," then Summary Judgment Standard Altitude would be immune from vicarious liability under the Graves Amendment (49 USC §30106 [a]). "On a motion for summary judgment, facts [*8] must be viewed 'in the light most favorable to the non-moving party'" In opposition, Cabrera and the UPS Defendants maintain that (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012], Altitude failed to satisfy its prima facie burden to judgment as quoting Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 a matter of law. They contend, for various reasons, that the [2011]). The "movant bears the heavy burden of establishing court should not consider certain affidavits submitted by 'a prima facie showing of entitlement to judgment as a matter Altitude in support of itsmotion. They further argue that of law, tendering sufficient evidence to demonstrate the Altitude concedes that the [*10] American National absence of any material issues of fact'" (Deleon v. New York Standards Institute's (ANSI) standards for renting boom- City Sanitation Dept., 25 NY3d 1102, 1106 [2015], quoting supported elevating work platforms represent the industry's Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see custom and practice, but that Altitude provided no evidence Winegrad v. New York Univ. Med. Ctr.,64 NY2d 851, 853 that it complied with these standards. [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). "Once this showing has been made..., the burden Cabrera and the UPS Defendants also argue that Altitude shifts to the party opposing the motion...to produce failed to demonstrate that there are no material issues of fact evidentiary proof in admissible form sufficient to establish the regarding negligent entrustment inasmuch as it rented the existence of material issues of fact which require a trial of theboom liftto Creative when it should have known thatthe action" (Alvarez v. Prospect Hosp., 68 NY2d at 324; see decedent was incompetent to operate it. In addition, they Zuckerman v. City of New York, 49 NY2d at 562). contend that VTL §388 applies to impose vicarious liability on Altitude inasmuch as the boom lift is a "motor vehicle" under "[T]he court's function is issue finding rather than issue the VTL given that it is a self-propelled vehicle being determination" (Genesis Merchant Partners, L.P. v. Gilbride, operated or driven upon a public highway. Carol Notias Kotsinis FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: Page 4 of09/20/2021 9 2020 NYLJ LEXIS 1411, *10 Finally, Cabrera and the UPS Defendants argue that Altitude (Rental Agreement at §2, NYSCEF Doc. No. 172 [Index No. is not immune from vicarious liability under the Graves 453205/2015]). [*13] By including the this provision in the Amendment inasmuch as it has not demonstrated that it is rental agreement, Altitude expressly conditioned Creative's engaged in the trade or business of renting or leasing motor use of the boom lift on proper training and PPE being vehicles that are manufactured primarily for use on public provided to the operator of the machine. Cabrera and the UPS streets, roads and highways and that, in any event, Altitude is Defendants cite no authority for the proposition that Altitude not entitled to the protections of the Graves Amendment for had a further duty to investigate whether the employees used its own negligence. In this regard, Cabrera [*11] and the UPS by Creative were, in fact, properly trained to operate the boom Defendants point out that Altitude is being sued for its own lift. negligence, including violations of ANSI standards and negligent entrustment. For the reasons set forth below, Altitude also submits the affidavitof engineer Peter Chen, Altitude's motion is granted. who conducted an inspection of the boom lift and reviewed "the documentary evidence developed in thisaction" (Chen It is axiomatic that "[i]n order to prevail on a negligence Affidavit, claim, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury 5, NYSCEF Doc. No. 189 [NYSCEF Doc. No. 453205/2015]). Chen opines that the rental agreement proximately resulting therefrom. In the absence of a duty, as a "contained standard industry conditions for the rentalof lift matter of law, there can be no liability" (CB v. Howard Sec., equipment and, as per industry custom and practice, the lessee 158 AD3d 157, 164 [1st Dept 2018] [internal quotation marks and operator of the equipment, in this case Creative, remained and citations omitted]). "The existence and scope of a duty of responsible to take all necessary safety precautions and to use care is a question of law for the courts entailing the only properly trained operators to operate the rented consideration of relevant policy factors" (Church v. Callanan equipment" (id. at Indus., 99 NY2d 104, 110-111 [2002]). 14). Chen also opines that "[a]s per industry custom and Here, Cabrera is not proceeding on a theory that Altitude was practice and ANSI 92.5, Altitude, as the renter of the negligent in maintaining the boom lift in good working order equipment, would not retain responsibility over its operation and repair, or that the accident was caused by any defect in and use while it [*14] was in possession of the lessor" (id. at the boom lift. Rather, he alleges that Altitude breached a duty of care to ensure and/or verify that the person operating the 15).5 boom lift was properly trained. However, Altitude established, as a matter of law, that it used reasonable care to Cabrera and the UPS Defendants argue that Altitude's motion ensure that the person operating the boom liftwould be must be denied because Altitude failed to demonstrate that it properly trained. In this [*12]regard, Altitude submits a copy complied with ANSI standards A92.5 §5.2.1, A92.5 §5.2.2, of the rental agreement between it and Creative, which A92.5 §5.7, A92.5 §5.8, and A92.5 §5.11.1, and therefore provides in relevant part: failed to establish its prima facie entitlement to judgment as a matter of law on the negligence claim against it (see ANSI "[Creative] is prohibited from authorizing or permitting other Standards, NYSCEF Doc. No. 246 [Index No. 453205/2015]). than properly trained personnel or any third party to operate These standards pertain to "dealers,"such as Altitude, who the equipment. [Creative] warrants that:...(d) [it] has received rent boom-supported elevating work platforms (A92.5 §§3, from Altitude all information needed or requested regarding 5). Broadly stated, they require dealers to keep, among other the operation of the Equipment; (e) Altitude is not responsible things, copies of the Operating Manual and Manual of for providing operator or other training. ([Creative] being Responsibilities in each rental, and to offer training to owners, responsible to obtain all training that [Creative] desires prior to the Equipment's use); (f) only authorized individuals shall use and operate the Equipment ('authorized individuals' being those who are properly trained to use the Equipment...; (g) the 5 Cabreraand the UPS Defendants argue that Altitudeshould be Equipment's use shall be implemented in a careful manner, in precluded from introducing Chen's affidavitbecause itdid not compliance with all operational and safety instructions disclose him as an expert under CPLR 3101 (d) before the notes of provided on, in or with the Equipment and all Federal, State issue were filed or since then. "However, CPLR 3212 (b) expressly and local laws and licenses, including but not limited to, permits the submission of expert affidavits in connection with a OSHA; and Renter is responsible for providing their operators summary judgment motion, even where an expert exchange pursuant with all (PPE) personal protection equipment to include but to CPLR 3101 (d) was not furnished prior to the affidavit's not limited to harness and lanyards" submission" (Brown v. 43-25 Hunter, L.L.C., 178 AD3d 493, n 1 [1st Dept 2019]). Carol Notias Kotsinis FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: Page 5 of09/20/2021 9 2020 NYLJ LEXIS 1411, *14 users, and operators. They also require dealers to maintain [Index No. 453205/2015]). Altitude also submits the affidavit records of the names of those trained, the names of persons of Darren Levine, Altitude'sVice President during the time providing the training, the date of training, and the names "of relevant to this action (Levine Affidavit, NYSCEF Doc. No. person(s) receiving familiarization with the aerial platform 181 [Index No. 453205/2015]). Levine statesthat "Altitude upon each delivery unless this individual has been provided did not retain possession, custody, care or control of the with familiarization on the same model, or one having Boom Lift at any time during the rental term after delivery on characteristics consistent with the one being delivered, within November 1, 2013 or during any of the four (4) days leading the prior 90 days" [*15] (A92.5 §5.11.1). up to the collision...did not supervise or direct the means or methods of Creative's work and it assumed no duty to do so" ANSI requirements may "be considered...as some evidence of (id. at negligence if it is first found that the standards set forth...[represent] the general custom or usage in the industry" 18-19, 28).6 In opposition, Cabrera and the UPS Defendants (Sawyer v. Dreis & Krump Mfg. Co., 67 NY2d 328, 337 proffer no evidence indicating that Altitude directed the [1986][emphasis added]). Here, even assuming ANSI 92.5 decedent or Baquedano to operate the lift. As such, Cabrera represents the general custom or usage in the industry, and the UPS Defendants' reliance on the ANSI standards is viewing these standards as a whole, they place the misplaced. responsibility on Creative for training and assuring that persons directed to operate the boom lift are trained. With respect to the claim for negligent entrustment, the tort Specifically in this regard, section A 92.5 defines "user" as "is based on the degree of knowledge the supplier of a chattel "[p]erson(s) or entity(ies) that has care, control, and custody has or should have concerning the entrustee's propensity to of the aerial platform," which "may also be the employer of use the chattel in an improper or dangerous fashion" the operator, a dealer, employer, owner, lessor, lessee,or (Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, 237 [2001]). operator" (A92.5 §3). In this case, Creative (not Altitude) had "To establish a cause of action under a theory of negligent the care, control, and custody of the boom lift and served as entrustment, the defendant must either have [*18] some the decedent's employer, and therefore falls under the special knowledge concerning a characteristic or condition definition of "user." The standards state that "[s]ince the user peculiar to the [person to whom a particular chattel is given] has direct control over the application and operation of aerial which renders [that person's] use of the chattel unreasonably platforms, conformance with good safety practices in this area dangerous...or some special knowledge as to a characteristic [it] is the responsibility of the user and the operating or defect peculiar to the chattel which renders it unreasonably personnel" (A92.5 §7.1). Further, as the "user," Creative dangerous" (Byrne v. Collins, 77 AD3d 782, 784 [2d Dept "shall [*16] ensure" that the person directed to operate the 2010] [internal quotation marks and citations omitted] aerial platform has been "trained" and "familiarized" with the [emphasis in original]). equipment (A92.5 §7.6 [1], [2]) and "shall permit only properly trained personnel to operate an aerial platform" Here, Altitude demonstrated its prima facie entitlement to (A92.5 §7.7). Importantly, the standards also specify thata judgment as a matter of law dismissing the negligent dealer "shall assume the responsibilities of users" when the entrustment claim through the affidavit of Levine, wherein he dealer "directs personnel to operate an aerial platform" (A92.5 states that Altitude had leased similar telescoping boom lifts §5.9). Therefore, the standards place the responsibility for to Creative on several prior occasions between November 7, safety practices and training on the user (in this case, 2012 and April 15, 2013 (Levine Affidavit at Creative), and only shifts this responsibility to the dealer (in 6, NYSCEF Doc. No. 181 [Index No. 453205/2015]). He this case, Altitude) when the dealer directs the personnel to operate the equipment. This is consistent with Chen's opinion that as per industry custom and practice, the lessee and 6 Cabreraand theUPS Defendants contend thatLevine's affidavit operator remains responsible to take all necessary safety should be disregarded because Altitude failed to disclose Levine as a precautions and to use only properly trained operators to possible fact witness during the discovery process. However, they operate the rented equipment. were aware, prior to the filing of the note of issue, that Levine was identified as Altitude's former Vice President who handled rentals Altitude established that it did not direct the decedent or and ran its day to day operations at the time of the accident and at the Baquedano to operate the liftby submitting, among other time of its closure.This fact had been testifiedto by Altitude things, the rental agreement pursuant to which Creative employee, Scott Robinson, during his May 4, 2017 deposition agreed that "Altitude has no control over the manner in which (Robinson EBT trat 14-15, NYSCEF Doc. No. 217 [Index No. the Equipment is operated during the Rental Period [*17] by 345205/2015]). Cabrera or the UPS Defendants could have, if desired, sought a deposition from Levine. Therefore, Levine's [Creative]" (Rental Agreement at §2, NYSCEF Doc. No. 172 affidavit will be considered. Carol Notias Kotsinis FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: Page 6 of09/20/2021 9 2020 NYLJ LEXIS 1411, *18 avers that during these prior rentals on "November 7, 2012, claims asserted against it in the Cabrera Action. November 8, 2012, December 28, 2012, January 13, 2013 and April 15, 2013, Altitude was not made aware and received no In support of its motion, Lincoln argues that Creative was in complaints from any source that Creative was using Altitude's the business of placing lights in trees and took no direction or equipment in an improper or unsafe manner or that it was not instruction from Lincoln. Creative hired its employees and complying with the terms of the rental Agreement" (id. at gave them whatever instruction it felt was required. Creative rented the boom lift and provided its employees with all the 7). Further, he states that "Altitude was also not [*19] aware materials they required such as the lights and extension cords. of any prior accidents or incidents involving Creative's rental Lincoln asserts that it provided no [*21] materials, and use of Altitude's equipment" (id. at supervision, direction or control over the manner and method of the work performed by Creative. Therefore, it asserts,it 8). In opposition to Altitude's prima facie showing, Cabrera was not negligent and cannot be vicariously liable for any and the UPS Defendants fail to raise a triable issue of fact as alleged negligence on the part of Creative. to whether or not Altitude possessed special knowledge concerning a characteristic or condition peculiar to Creative In opposition, Cabrera and the UPS Defendants contend that that rendered its use of the boom lift unreasonably dangerous. Lincoln's argument that it had no direction or control over the decedent's work is contrary to the evidence. They argue that As to the issue of vicarious liability, VTL §388 (1) provides" the contract between Creative and Lincoln specifically required Lincoln to provide a location to park the boom lift "every owner of a vehicle used or operated in this state shall during light installation and removal. They further argue that be liable and responsible for death or injuries to person or the contract's express terms conflict with Lincoln's testimony property resulting from negligence in the use or operation of that itdid not provide a parking location for the boom lift. such vehicle, in the business of such owner or otherwise, by This conflict,they assert,involves a material issue of fact any person using or operating the same with the permission, because the boom lift'slocation proximately caused the express or implied, of such owner." accident, and therefore Lincoln is not entitled to summary judgment. For the reasons that follow, Lincoln's motion is The statute does not apply to the facts of this case because the denied. boom lift is "a machine that has multiple functions" and was not functioning as a "vehicle" at the time of the accident "A party who hires an independent contractor is generally not (Monell v. International Bus. Machs. Corp., 47 AD2d 637, liable for the independent contractor's negligence" (Flaherty 638 [2d Dept 1975], affd 38 NY2d 888 [1976]). Moreover, v. Fox House Condo., 299 AD2d 448, 448 [2d Dept 2002]). even assuming that under the circumstances of this case, the "Although several justifications have been offered in support boom lift is properly characterized as a "motor vehicle," the of this rule, the most commonly accepted rationale is Graves Amendment would apply to shield Altitude from based [*22] on the premise that one who employs an vicarious liability [*20] (see generally Olmann v. Neil, 132 independent contractor has no right to control the manner in AD3d 744, 745 [2d Dept 2015] ["Pursuant to the Graves which the work is to be done and, thus, the risk of loss is more Amendment (49 USC §30106), generally, the owner of a sensibly placed on the contractor" (Kleeman v. Rheingold, 81 leased or rented motor vehicle cannot be held liable for NY2d 270, 274 [1993]). Exceptions to the rule include personal injuries resulting from the use of such vehicle if: (1) situations where the party the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or "(1) is under a statutory duty to perform or control the work, criminal wrongdoing on the part of the owner"]). (2) has assumed a specific duty by contract, (3) is under a duty to keep premises safe, or (4) has assigned work to an Cabrera's and the UPS Defendants' remaining arguments with independent contractor which the employer knows or has respect to Altitude's motion for summary judgment have been reason to know involves special dangers inherent in the work considered and they are without merit. or dangers which should have been anticipated by the employer" Accordingly, Altitude's motion for summary judgment will be granted. (Rosenberg v.Equitable Life Assur. Socy. of U.S.,79 NY2d Lincoln's Motion for Summary Judgment 663, 668 [1992] [emphasis added]; see Flaherty v. Fox House Condo., 299 AD2d at 449). "In such instances, the employer Lincoln moves for summary judgment dismissing the cannot insulate itself from liability by claiming that it was not amended complaint insofar as asserted against it and all cross negligent: the employer isvicariously liable for the faultof Carol Notias Kotsinis FILED: KINGS COUNTY CLERK 09/20/2021 02:33 PM INDEX NO. 516285/2019 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: Page 7 of09/20/2021 9 2020 NYLJ LEXIS 1411, *22 the independent contractor because a legal duty is imposed on illumination at the time of the accident. The UPS Defendants itwhich cannot be delegated" (Rosenberg v. Equitable Life assert, therefore, that they owed no duty to the decedent and Assur. Socy. of U.S., 79 NY2d at 668 ). are not liable for the accident. Here, in support of its motion, Lincoln relies on the deposition The UPS Defendants also argue that the accident was caused testimony of William Murphy, Lincoln's Residence Manager, by the decedent, Baquedano, [*25] Creative, Lincoln, and who served as Lincoln's contact with Creative (Murphy EBT Altitude's failure to have a safe work zone with trained tr, NYSCEF Doc. Nos. 83