McLain v. Al Turi Landfill, Inc.

147 A.D.2d 620, 538 N.Y.S.2d 27, 1989 N.Y. App. Div. LEXIS 1991

Opinion

— In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Morrison, J.), entered September 15, 1987, which, inter alia, granted the defendant Browning-Ferris Industries of New York, Inc.’s motion for summary judgment dismissing the complaint as against it.

Ordered that the order is reversed, with costs, the motion is denied and the complaint and third-party complaint, together with any cross claims for indemnification, are reinstated.

Contrary to the conclusions of the Supreme Court, we find that the respondent has not established that it is entitled to a judgment dismissing the complaint, as a matter of law. The record reveals, inter alia, that the respondent owned the equipment which had been utilized by the plaintiff at the time of the incident and that the respondent maintained a managerial office at the transfer station where the waste material was loaded. Thus, triable issues of fact exist as to the degree of the respondent’s involvement in the management, control or supervision of the landfill operations at issue in this case. Moreover, since discovery has not yet been completed, an award of summary judgment, at this juncture, would be premature. Mangano, J. P., Brown, Fiber and Harwood, JJ., concur.