Cabrera v. United Parcel Serv. Inc.

ADDITIONAL CASES United Parcel Service, Inc. and Robert A. Kreitzer, Jr., Third-Party Plaintiffs, v. Altitude Equipment Rentals, LLC, Third-Party Defendant Altitude Equipment Rentals, LLC Second Third-Party Plaintiff, v. Creative Christmas, Inc., Second Third-Party Defendant The following e-filed documents, listed by NYSCEF document number (Motion 001) 151-187, 212-249, 284-291, 315-317, 320; (Motion 002) 76-92, 194-211, 292-299, 302, 303, 321; (Motion 003) 93-141, 256-283, 300, 304-314 were read on this motion to/for           SUMMARY JUDGMENT.   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 located in front of a building on Columbus Avenue between West 67th and West 68th Streets in Manhattan (the Premises). The decedent died as a result of the injuries he sustained in the accident. By order dated December 8, 2015, this action was joined for the purposes of discovery and trial with a related action arising out of the same accident captioned Alterra America Insurance Company v. Creative Christmas Inc., Index No. 152547/2015. In motion sequence number 001, Altitude Equipment Rentals, LLC (Altitude), moves, pursuant to CPLR 3212, for summary judgment dismissing (1) the amended complaint and the third-party complaint insofar as asserted against it in the action bearing Index No. 453205/2015 (the Cabrera Action), (2) the third-party complaint insofar as asserted against it in the action bearing Index No. 152547/2015 (the Alterra Action), and (3) all cross claims asserted against it in both actions. In motion sequence number 002, Wilmer Cabrera, as the administrator of the decedent’s estate (Cabrera), moves for a default judgment against Creative Christmas, Inc. (Creative) in the Cabrera Action. In a second, separate motion denominated motion sequence number 002, Lincoln Square Condominium (Lincoln) moves, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint insofar as asserted against it and all cross claims asserted against it in the Cabrera Action. In motion sequence number 003, United Parcel Service, Inc. (UPS) and Robert A. Kreitzer, Jr. (Kreitzer) (together, the UPS Defendants) move, pursuant to CPLR 3212, for summary judgment dismissing (1) the amended complaint insofar as asserted against them in the Cabrera Action, (2) the complaint insofar as asserted against them in the Alterra Action, and (3) all counterclaims and cross claims asserted against them in both actions. Motion sequence numbers 001, 002, and 003 are consolidated for disposition. BACKGROUND On the date of the accident, Lincoln owned the Premises and, pursuant to a contract, hired Creative to hang holiday lights on the trees located along the sidewalk of Columbus Avenue and West 67th Street. Creative employed the decedent and Christian Baquedano to install the lights using a telescopic boom lift provided to them by Creative. Creative leased the boom lift from Altitude. The decedent parked the boom lift next to a tree, in the parking lane on Columbus Avenue near the corner of 67th Street, with the bucket hanging partially over the right travel 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 trailer operated by Kreitzer struck the bucket that the decedent and Baquedano were working in. As a result of the collision, they were thrown from the bucket and sustained injuries. The next day, the decedent died as a result of his injuries. The Cabrera Action Cabrera filed the Cabrera Action in the Supreme Court, Kings County under Index No. 503785/2015. By order dated December 18, 2015, the Cabrera Action was transferred to the Supreme Court, New York County, and joined with the Alterra Action for the purposes of discovery and joint trial (see Amended Dec & Order, NYSCEF Doc. No. 48 [Index No. 152547/2015]). In the amended complaint, Cabrera alleges causes of action against UPS, Kreitzer, Creative, Lincoln, and Altitude, seeking damages for common-law negligence, wrongful death, and punitive damages (Supplemental Summons and Amended Complaint, NYSCEF Doc. No. 22 [Index No. 453205/2015]).¹ Altitude answered and asserted cross claims against UPS, Kreitzer, Creative, and Lincoln for contribution and indemnification (Altitude’s Answer to Amended Complaint, NYSCEF Doc. No. 23 [Index No. 453205/2015]). UPS and Kreitzer separately answered and asserted cross claims against Creative and Lincoln for contribution (UPS Answer to Amended Complaint, NYSCEF Doc. No. 26; Kreitzer’s Answer to Amended Complaint, NYSCEF Doc. No. 25 [Index No. 453205/2015]). Lincoln answered and asserted cross claims against UPS, Kreitzer, Creative, and Altitude for contribution and/or indemnification (Lincoln’s Answer to Amended Complaint, NYSCEF Doc. No. 33 [Index No. 453205/2015]). UPS and Kreitzer also initiated a third-party action against Altitude for contribution (Third-Party Complaint, NYSCEF Doc. No. 16 [Index No. 453205/2015]). Altitude asserted cross claims against Creative and Lincoln and counterclaimed against UPS and Kreitzer for contribution and/or indemnification (Altitude’s Answer to Third-Party Complaint, NYSCEF Doc. No. 18 [Index No. 453205/2015]).² The Alterra Action In the Alterra action, Alterra America Insurance Company (Alterra), the insurer of the boom lift, alleges that it reimbursed Altitude the sum of $80,166.00 for the damage sustained to the boom lift and seeks reimbursement of that sum from Creative,³ UPS, and Kreitzer (Summons and Complaint, NYSCEF Doc. No. 1 [Index No. 152547/2015]).⁴ UPS and Krietzer each answered and asserted cross claims against Creative for, inter alia, contribution (UPS’s Answer, NYSCEF Doc. No. 7; Kreitzer’s Answer, NYSCEF Doc. No. 9 [Index No. 152547/2015]). UPS and Kreitzer initiated a third-party action against Altitude and Lincoln seeking damages for negligence on behalf of UPS and contribution on behalf of UPS and Kreitzer (Third-Party Summons and Complaint, NYSCEF Doc. No. 20 [Index No. 152547/2015]). In the third-party action, Lincoln cross-claimed against Creative and Altitude for contribution and/or indemnification (Lincoln’s Answer, NYSCEF Doc. No. 34 [Index No. 152547/2015]) and Altitude asserted cross claims against Creative and Lincoln and counterclaimed against UPS and Kreitzer for contribution and/or indemnification (Altitude’s Answer, NYSCEF Doc. No. 35 [Index No. 152547/2015]). Altitude also initiated a second third-party action against Creative for contribution and/or indemnification (Second Third-Party Summons and Complaint, NYSCEF Doc. No. 139 [Index No. 152547/2015]). On April 8, 2019, Cabrera, Alterra, UPS, Kreitzer, Altitude, and Lincoln stipulated that “in the interest of judicial economy and time,” they would “accept and apply the determination as to culpable conduct and allocation of liability reached in the…Cabrera Action for all purposes in the [Alterra] action” (Stipulation, NYSCEF Doc. No. 141 [Index No. 152547/2015]). DISCUSSION Summary Judgment Standard “On a motion for summary judgment, facts must be viewed ‘in the light most favorable to the non-moving party’” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). The “movant bears the heavy burden of establishing ‘a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’” (Deleon v. New York City Sanitation Dept., 25 NY3d 1102, 1106 [2015], quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “Once this showing has been made…, the burden shifts to the party opposing the motion…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 v. Prospect Hosp., 68 NY2d at 324; see Zuckerman v. City of New York, 49 NY2d at 562). “[T]he court’s function is issue finding rather than issue determination” (Genesis Merchant Partners, L.P. v. Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 481 [1st Dept 2018]). “[S]ummary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues” (Aguilar v. City of New York, 162 AD3d 601, 601 [1st Dept 2018]). Altitude’s Motion for Summary Judgment Altitude now moves for summary judgment dismissing (1) the amended complaint and the third-party complaint insofar as asserted against it in the Cabrera Action, (2) the third-party complaint insofar as asserted against it in the Alterra Action, and (3) all counterclaims and cross claims asserted against it in both actions. Altitude contends that it played no role in the occurrence of the accident. It merely rented the boom lift to Creative. It did not supervise, direct and/or control Creative’s work or its use of the boom lift, and it did not have any employees at the site where the accident occurred. Altitude asserts that it agreed to rent the boom lift to Creative based on conditions including that only properly trained personnel would be allowed to operate it. As such, Altitude claims that there is no basis for any negligence or negligent entrustment claims against it. Altitude further contends that it is not subject to vicarious liability under Vehicle and Traffic Law (VTL) §388 because, among other things, the boom lift is not a “motor vehicle” under the VTL. Moreover, even if the court were to find that the boom lift should be classified as a “motor vehicle,” then Altitude would be immune from vicarious liability under the Graves Amendment (49 USC §30106 [a]). In opposition, Cabrera and the UPS Defendants maintain that Altitude failed to satisfy its prima facie burden to judgment as a matter of law. They contend, for various reasons, that the court should not consider certain affidavits submitted by Altitude in support of its motion. They further argue that Altitude concedes that the American National Standards Institute’s (ANSI) standards for renting boom-supported elevating work platforms represent the industry’s custom and practice, but that Altitude provided no evidence that it complied with these standards. Cabrera and the UPS Defendants also argue that Altitude failed to demonstrate that there are no material issues of fact regarding negligent entrustment inasmuch as it rented the boom lift to Creative when it should have known that the decedent was incompetent to operate it. In addition, they contend that VTL §388 applies to impose vicarious liability on Altitude inasmuch as the boom lift is a “motor vehicle” under the VTL given that it is a self-propelled vehicle being operated or driven upon a public highway. Finally, Cabrera and the UPS Defendants argue that Altitude is not immune from vicarious liability under the Graves Amendment inasmuch as it has not demonstrated that it is engaged in the trade or business of renting or leasing motor vehicles that are manufactured primarily for use on public streets, roads and highways and that, in any event, Altitude is not entitled to the protections of the Graves Amendment for its own negligence. In this regard, Cabrera and the UPS Defendants point out that Altitude is being sued for its own negligence, including violations of ANSI standards and negligent entrustment. For the reasons set forth below, Altitude’s motion is granted. It is axiomatic that “[i]n order to prevail on a negligence claim, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In the absence of a duty, as a matter of law, there can be no liability” (CB v. Howard Sec., 158 AD3d 157, 164 [1st Dept 2018] [internal quotation marks and citations omitted]). “The existence and scope of a duty of care is a question of law for the courts entailing the consideration of relevant policy factors” (Church v. Callanan Indus., 99 NY2d 104, 110-111 [2002]). Here, Cabrera is not proceeding on a theory that Altitude was negligent in maintaining the boom lift in good working order and repair, or that the accident was caused by any defect in the boom lift. Rather, he alleges that Altitude breached a duty of care to ensure and/or verify that the person operating the boom lift was properly trained. However, Altitude established, as a matter of law, that it used reasonable care to ensure that the person operating the boom lift would be properly trained. In this regard, Altitude submits a copy of the rental agreement between it and Creative, which provides in relevant part: “[Creative] is prohibited from authorizing or permitting other than properly trained personnel or any third party to operate the equipment. [Creative] warrants that:…(d) [it] has received from Altitude all information needed or requested regarding the operation of the Equipment; (e) Altitude is not responsible for providing operator or other training. ([Creative] being 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 Equipment’s use shall be implemented in a careful manner, in compliance with all operational and safety instructions provided on, in or with the Equipment and all Federal, State and local laws and licenses, including but not limited to, OSHA; and Renter is responsible for providing their operators with all (PPE) personal protection equipment to include but not limited to harness and lanyards” (Rental Agreement at §2, NYSCEF Doc. No. 172 [Index No. 453205/2015]). By including the this provision in the rental agreement, Altitude expressly conditioned Creative’s use of the boom lift on proper training and PPE being provided to the operator of the machine. Cabrera and the UPS Defendants cite no authority for the proposition that Altitude had a further duty to investigate whether the employees used by Creative were, in fact, properly trained to operate the boom lift. Altitude also submits the affidavit of engineer Peter Chen, who conducted an inspection of the boom lift and reviewed “the documentary evidence developed in this action” (Chen Affidavit, 5, NYSCEF Doc. No. 189 [NYSCEF Doc. No. 453205/2015]). Chen opines that the rental agreement “contained standard industry conditions for the rental of lift equipment and, as per industry custom and practice, the lessee and operator of the equipment, in this case Creative, remained responsible to take all necessary safety precautions and to use only properly trained operators to operate the rented equipment” (id. at 14). Chen also opines that “[a]s per industry custom and practice and ANSI 92.5, Altitude, as the renter of the equipment, would not retain responsibility over its operation and use while it was in possession of the lessor” (id. at 15).⁵ Cabrera and the UPS Defendants argue that Altitude’s motion must be denied because Altitude failed to demonstrate that it complied with ANSI standards A92.5 §5.2.1, A92.5 §5.2.2, A92.5 §5.7, A92.5 §5.8, and A92.5 §5.11.1, and therefore failed to establish its prima facie entitlement to judgment as a matter of law on the negligence claim against it (see ANSI Standards, NYSCEF Doc. No. 246 [Index No. 453205/2015]). These standards pertain to “dealers,” such as Altitude, who rent boom-supported elevating work platforms (A92.5 §§3, 5). Broadly stated, they require dealers to keep, among other things, copies of the Operating Manual and Manual of Responsibilities in each rental, and to offer training to owners, users, and operators. They also require dealers to maintain records of the names of those trained, the names of persons providing the training, the date of training, and the names “of person(s) receiving familiarization with the aerial platform upon each delivery unless this individual has been provided with familiarization on the same model, or one having characteristics consistent with the one being delivered, within the prior 90 days” (A92.5 §5.11.1). ANSI requirements may “be considered…as some evidence of negligence if it is first found that the standards set forth…[represent] the general custom or usage in the industry” (Sawyer v. Dreis & Krump Mfg. Co., 67 NY2d 328, 337 [1986][emphasis added]). Here, even assuming ANSI 92.5 represents the general custom or usage in the industry, viewing these standards as a whole, they place the responsibility on Creative for training and assuring that persons directed to operate the boom lift are trained. Specifically in this regard, section A 92.5 defines “user” as “[p]erson(s) or entity(ies) that has care, control, and custody of the aerial platform,” which “may also be the employer of the operator, a dealer, employer, owner, lessor, lessee, or operator” (A92.5 §3). In this case, Creative (not Altitude) had the care, control, and custody of the boom lift and served as the decedent’s employer, and therefore falls under the definition of “user.” The standards state that “[s]ince the user has direct control over the application and operation of aerial platforms, conformance with good safety practices in this area [it] is the responsibility of the user and the operating personnel” (A92.5 §7.1). Further, as the “user,” Creative “shall ensure” that the person directed to operate the aerial platform has been “trained” and “familiarized” with the equipment (A92.5 §7.6 [1], [2]) and “shall permit only properly trained personnel to operate an aerial platform” (A92.5 §7.7). Importantly, the standards also specify that a dealer “shall assume the responsibilities of users” when the dealer “directs personnel to operate an aerial platform” (A92.5 §5.9). Therefore, the standards place the responsibility for safety practices and training on the user (in this case, Creative), and only shifts this responsibility to the dealer (in 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 operator remains responsible to take all necessary safety precautions and to use only properly trained operators to operate the rented equipment. Altitude established that it did not direct the decedent or Baquedano to operate the lift by submitting, among other things, the rental agreement pursuant to which Creative agreed that “Altitude has no control over the manner in which the Equipment is operated during the Rental Period by [Creative]” (Rental Agreement at §2, NYSCEF Doc. No. 172 [Index No. 453205/2015]). Altitude also submits the affidavit of Darren Levine, Altitude’s Vice President during the time relevant to this action (Levine Affidavit, NYSCEF Doc. No. 181 [Index No. 453205/2015]). Levine states that “Altitude did not retain possession, custody, care or control of the Boom Lift at any time during the rental term after delivery on November 1, 2013 or during any of the four (4) days leading 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” (id. at