Dery v. DeCostole Carting, Inc.

281 A.D.2d 508, 722 N.Y.S.2d 57, 2001 N.Y. App. Div. LEXIS 2554

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2001
• Status: Published

Opinions

—In an action to recover damages for personal injuries, etc., the defendant DeCostole Carting, Inc., d/b/a DCI Container Service appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated September 17, 1999, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and granted that branch of the plaintiffs’ cross motion which was to amend the complaint to add DCM Construction Corp. as a defendant, and the defendant New York Telephone Company, s/h/a NYNEX Corporation separately appeals from so much of the same order as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and granted that branch of the plaintiffs’ cross motion which was to compel discovery.

Ordered that the appeal by the defendant DeCostole Carting, Inc., d/b/a DCI Container Service from so much of the order as granted that branch of the plaintiffs’ cross motion which was to add DCM Construction Corp. as a defendant is dismissed, as DeCostole Carting, Inc., is not aggrieved by that portion of the order (see, CPLR 5511; Coffey v Brodsky, 278 AD2d 191); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the plaintiffs are awarded one bill of costs payable by the appellants.

The infant plaintiff was struck by an unidentified hit-and-run driver when she ran into the street in front of her house to retrieve a ball. The plaintiffs alleged causes of action against, among others, DeCostole Carting, Inc., d/b/a DCI Container Service which owned a garbage dumpster that was placed on the street, and New York Telephone Company, s/h/a NYNEX Corporation (hereinafter NYNEX), which had placed a work truck on the opposite side of the street. The driver of the vehicle that struck the infant plaintiff was never identified. The plaintiffs contend that the appellants’ actions were a proximate cause of the accident because the dumpster and the NYNEX truck were negligently placed on the street, and the truck forced vehicular traffic to veer into the opposite lane, where visibility was obstructed by the dumpster.

The Supreme Court properly denied summary judgment to the appellants. After the appellants established a prima facie case, the plaintiffs raised triable issues of fact in response to both motions (see, Zuckerman v City of New York, 49 NY2d 557).

The Supreme Court properly granted that branch of the plaintiffs’ cross motion which was to compel discovery of NY-NEX’s accident reports (see, Rothstein v Milleridge Inn, 251 AD2d 154; CPLR 3214 [b]). Florio, Luciano and Schmidt, JJ., concur.