Decedent Frank Consalvo was employed as a sanitation worker by the City of New York, when, during a regular work shift on February 15, 2000, he was struck and killed by a hit-and-run driver on 40th Street, Brooklyn. This action against the City was instituted by decedent's wife, Diane Consalvo, individually, as administratrix of his estate, and as guardian of his infant son, Christopher C. Consalvo, and by decedent's son, Frank J. Consalvo, alleging causes of action for themselves and decedent based upon the City's negligence.

On the day he was killed, Mr. Consalvo was working "relay," taking trucks that were loaded with garbage from that day's collection, and dumping the garbage so the trucks could be used the next day. He had been directed, however, to collect a dead animal on 40th Street. According to the deposition testimony of the City's witnesses, by agreement with the sanitation workers' union, one sanitation worker would be assigned to a relay truck, but two workers were required for collection.

Plaintiffs allege that the Department of Sanitation was negligent in directing Mr. [*2]Consalvo to perform an "unauthorized, unsafe, dangerous and hazardous" task; an "unauthorized, unnecessary, non-emergency task outside the scope of his normal/usual/specific/individual job duties, responsibilities and tasks;" "to make an unauthorized pick-up' of a dead animal while alone in his assigned [New York City Department of Sanitation] vehicle." (Verified Bill of Particulars, at 4-5.)

The City now moves for summary judgment, and an order dismissing Plaintiffs' Verified Complaint. The City relies primarily on the deposition testimony of Stephen Harbin, the Department of Sanitation's Director of Safety and Training, who had been a Deputy Chief in February 2000; and the deposition testimony of Charles Herbst, a Deputy Chief, who had been a District Superintendent in February 2000. The City's summary of that testimony is that Mr. Consalvo's assignment to collect the dead animal was "within the routine practice of the Department;" that "[t]here was nothing irregular about the assignment itself, the fact that Consalvo was taken off relay to perform it, or that it was performed by one person as opposed to two." (See Affirmation in Support of Defendants' Motion for Summary Judgment, ¶ 15.) The summary is fair as far as it goes, but fails to recognize the two-worker requirement for collection imposed by union contract, and that workers were paid more for collection than for relay.

Based upon this testimony and other undisputed facts, the City makes four assertions in favor of dismissal: "The City breached no duty to the decedent, as the Department acted within its discretionary purview in assigning decedent to retrieve a dead cat" (id., ¶ ¶ 13-17); "Plaintiff's (sic) action against the City is barred because he was injured by a condition necessarily incidental to his employment" (id., ¶ ¶ 18-20); "The City was not under a duty to protect Consalvo from the actions of reckless drivers" (id., ¶ ¶ 21-22); "The City's motion for summary judgment should be granted because the alleged negligence was not the proximate cause of the occurrence from which Plaintiff's (sic) injuries flow" (id., ¶ ¶ 23-25.)

"To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212 [b]), and he must do so by tender of evidentiary proof in admissible form." (Zuckerman v New York, 49 NY2d 557, 562 [1980] [quoting Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-68 (1979)].) "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004] [quoting Larkin Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992)]; see also Restrepo v Rockland Corp., 2007 NY Slip Op 2535, * 2 [2d Dept].) "Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)

As will appear, the City has failed to make a sufficient showing on this motion, primarily because it has not acknowledged and addressed its duties as an employer to protect its employees from work-related harm. The legal authorities it cites in support of its assertions are, for the most part, inapposite. In asserting its discretion to make work assignments, it cites an Article 78 [*3]proceeding challenging the promotion of certain employees (see Kitchings v Jenkins, 85 NY2d 694 [1995]) and a police officer's suit for increased compensation (see McGowan v Mayor of New York, 53 NY2d 86 [1981].) In arguing that the City owed no duty to Mr. Consalvo to protect him from the harm that occurred, it cites decisions on the tort liability of a landlord to a tenant's guest (see Murray v NYCHA, 269 AD2d 288 [1st Dept 2000]), and the liability of a garage to a pedestrian hit by an exiting vehicle (see Pulka v Edelman, 40 NY2d 781 [1976].) And in contending that proximate cause is absent, it relies on decisions on the tort liability of a landlord to a tenant (see Rivera v City of New York, 11 NY2d 856 [1962]) and an automobile collision (see Katz v Klagsbrun, 299 AD2d 317 [2d Dept 2002].)

Undoubtedly, the decisions cited by the City state general principles as to duty and causation that can provide a starting point for analysis and, appropriately, advocacy. The City and the Court, moreover, do not have the benefit of a developed body of modern caselaw in actions by employees against employers for work-related injuries, because the development of the common law in the area has been significantly affected by the exclusiveness of the workers' compensation remedy (see Workers' Compensation Law § 11.) But where the workers' compensation remedy does not control, as is concededly the case in this action, the older common law authorities will be applied, and, when necessary, modified to suit modern conditions. (See, for example, Lawrence v City of New York, 84 AD2d 485, 486-87 [2d Dept 1981], aff'd 56 NY2d 300 [1982].)

"[A] master owes the duty to his servant of furnishing adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his duties." (Pantzar v Tilly Foster Mining Co., 99 NY 368, 372 [1885].) "[T]he jury are to inquire whether, under the circumstances, the master did anything which, in the exercise of reasonable and ordinary care and prudence, he ought not to have done, or omitted any precaution which a prudent and careful man would or ought to have taken." (Leonard v Collins, 70 NY 90, 93-94 [1877]; see also McDonald v Huntington Crescent Club, Inc., 152 AD2d 543, 544 [2d Dept 1989].)

The employer's "duty . . . to furnish a sufficient number of men to properly perform [the] work" (see O'Connell v Thompson-Starrett Co., 72 AD 47, 51 [1st Dept 1902]) includes the duty to furnish workers to perform those tasks necessary to make the work safe for other workers (see Kostka v Stack, 266 AD 883, 884 [3d Dept 1943], aff'd 291 NY 808 [1944]; Skidmore v Rosenblatt, 258 AD 919, 919 [2d Dept 1939], after remand 260 AD 947, 947 [2d Dept 1940], aff'd 285 NY 809 [1941]; Aleckson v Erie Railroad Company, 101 AD 395, 399 [1st Dept 1905].) In appropriate circumstances, a necessary task would be serving as a lookout to warn other workers of an approaching vehicle. (See Di Napoli v New York, N.H. & H.R. Co, 136 AD 334, 335-36 [2d Dept 1910].) Limitations on the employer's duty arising from the fellow-servant rule (see Dair v NY & P.R. Steamship Co., 204 NY 341, 346-50 [1912]) are obviated by recent abandonment of that rule (see Buckley v City of New York, 56 NY2d 300, 304 [1982].) [*4]

In modern caselaw, any question as to an employer's breach of duty to its employee more often arises in the context of a cross-claim or third-party claim by a landowner or contractor against the employer, alleging the employer's negligence in the training, instruction, supervision, or direction of the employee as the basis for indemnity or contribution. (See, for example, Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 582 [1998]; Consolidated Edison Co. of NY, Inc. v Vilsmeir Auction Co., Inc., 21 AD3d 726, 727 [1st Dept 2005]; Basulto v Gravely International, Inc., 298 AD2d 280, 281 [1st Dept 2002]; Wesley v Long Island Power Authority, 284 AD2d 391, 392 [2d Dept 2001]; Reiner v Dormitory Authority of State of NY, 266 AD2d 443, 444 [2d Dept 1999]; Camarda v Summit Homes, 233 AD2d 285, 286 [2d Dept 1996].)

The City makes no showing that it was not negligent generally in the training, instruction, supervision, or direction of Mr. Consalvo, but neither can the Plaintiffs' pleadings be understood to allege such negligence, except as it might relate to the particular task that Mr. Consalvo was directed to perform on the night he was killed. (See Spinnicchia v Karg Brothers, Inc., 267 AD2d 689, 690-91 [3d Dept 1999].) Given that Mr. Consalvo apparently "had years of experience with tasks similar to [that] performed on the date of the accident" (see Consolidated Edison Co. of NY, Inc. v Vilsmeir Auction Co., Inc., 21 AD3d at 729; see also Basulto v Gravely International, Inc., 298 AD2d at 281), and that the retrieval of a small dead animal is, at least arguably, a "relatively simple" (see id.) and "common and ordinary activity" (see Wesley v Long Island Power Authority, 284 AD2d at 392; see also Mangiafreno v Wikstrom Machines, Inc., 243 AD2d 690, 690 [2d Dept 1997]; Carmada v Summit Homes, 233 AD2d at 286), the City's failure to make a showing as to that activity in itself, and apart from the number of workers, is

understandable.

Plaintiffs' allegations of negligence, however, focus primarily, not on the particular task itself, but on the direction that Mr. Consalvo perform it alone. There is no showing that, based upon Mr. Consalvo's prior work experience, "a new and more perilous service was [not] introduced." (See Fitzgerald v Brooklyn Institute of Arts and Sciences, 175 AD 554, 558 [2d Dept 1916].) Even so, as already demonstrated, the failure to furnish Mr. Consalvo with such assistance that reasonable care would have required will serve as an independent basis for liability, assuming that the failure was a proximate cause of the occurrence. (See O'Connoll v Thompson-Starrett Co., 72 AD at 53.) "The accident must flow from the omission of duty; otherwise there is no basis upon which liability may be predicated." (Id.)

The City makes no showing that a single worker was sufficient to safely perform the task. Particularly in light of the testimony of the City's witness that the union contract required two workers on collection, the City's failure to make a prima facie showing on the issue is fatal to its motion, unless one of the City's four contentions requires dismissal of Plaintiffs' claim as a matter of law.

The Department's discretion to make assignments as a general matter is not at issue. It is clear that the discretion must be exercised consistent with the City's duties as employer to its [*5]employees. Similarly, one might agree with the City that "the assignment itself was not the proximate cause of the accident." (See Affirmation in Support of Defendants' Motion for Summary Judgment, ¶ 25.) The question is whether the assignment under the circumstances here presented was both a breach of duty and a proximate cause of Mr. Consalvo's death.

One might also agree with the City that sanitation workers "are subject to the inherent risk of being struck by a motor vehicle." (See id., ¶ 20.) In actions by sanitation workers against property owners or lessees, recovery has been denied when the injury resulted from "the ordinary and obvious hazards of his or her employment", but only when the worker "has the time and other resources (e.g., a coworker) . . . to proceed safely." (See Steiner v Benroal Realty Associates, L.P., 290 AD2d 551, 551 [2d Dept 2002]; Marin v San Martin Restaurant, Inc., 287 AD2d 441, 442 [2d Dept 2001]; Abbadessa v Ulrik Holding Ltd., 244 AD2d 517, 518 [2d Dept 1997].)

"The rule that the servant takes the risk of the service presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him." (Pantzar v Tilly Foster Iron Mining Co., 99 NY at 376.) "It is those risks alone which cannot be obviated by the adoption of reasonable measures of precaution by the master, that the servant assumes." (Id; see also Eastland v Clarke, 165 NY 420, 427 [1901]; Weisman v Camp Beecher, Inc., 269 AD 278, 280 [1st Dept], aff'd 295 NY 626 [1945].)

Considered from the perspective of contributory fault, rather than a priori duty, "when a person in the capacity of a superior assumes control over a workman on a job and directs him to proceed under circumstances recognizable as dangerous, the subordinate workman has little, if any, choice in the matter but to obey it and, if he stays within the limits of the superior's instructions and is injured, he may not be penalized by a claim of contributory negligence as a matter of law." (Broderick v Cauldwell-Wingate Co., Inc., 301 NY 182, 188 [1950]; see also Maddox v City of New York, 66 NY2d 270, 279 [1985]; Williams v Bonowicz, 296 AD2d 401, 401 [2d Dept 2002]; Salvieterra v Havekotte, 273 AD2d 218, 219 [2d Dept 2000]; Porter v Avlis Contracting Corp., 57 AD2d 222, 226 [2d Dept 1977].) It may be that an appropriate standard would be that applied to the "inherent risks" of sports activity, "whether the conditions caused by the defendant['s ] negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the [activity]'." (See Morgan v State of New York, 90 NY2d 471, 485 [1997] [quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 (1997)].)

In our case, the City's failure to make a showing that it discharged its duties to Mr. Consalvo precludes judgment based upon the "inherent risks" of the job. We have, moreover, specific testimony from one of the City's witnesses that Mr. Consalvo could not have refused the direction to proceed on his own to collect the dead animal.

The City's remaining assertions, concerning duty and proximate cause, are related. Addressing duty, the City contends that "the City had no duty to protect Consalvo from the reckless behavior of motorists whom the City cannot control." (See Affirmation in Support of [*6]Defendants' Motion for Summary Judgment, ¶ 22.) But the "traditional master-servant relationship" is the kind of "special relationship" that may require the employer "to protect the [employee] from the conduct of others." (See Purdy v Public Administrator of County of Westchester, 72 NY2d 1, 8 [1988].) An employer may be liable to its employee for even the criminal acts of third parties if the acts are sufficiently foreseeable. (See Cooper v State of New York, 89 AD2d 811, 811 [4th Dept 1982]; Hefele v City of New York, 25 AD2d 142, 144 [1st Dept 1966]; see, generally, Linda A. Sharpe, J.D., Employer's Liability to Employee or Agent for Injury or Death Resulting From Assault or Criminal Act by Third Person, 40 ALR 5th 1 [2000]; see also Vetrone v Ha Di Corp., 22 AD3d 835, 837-39 [2d Dept 2005].)

"Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, . . . liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." (Derdiarian v Felix Contracting Corp., 51 NY2d 308, 315 [1980].) "An intervening act may not serve as a superceding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent." (Id., at 316.)

Like its assertion as to the "inherent risk" of the work, which cannot relieve the City of liability for breach of the duties owed as employer, the City's contentions as to duty for third-party acts and proximate cause cannot require judgment without an assessment of the relationship between the City's specific duty and its breach and the act or acts that were also substantial factors in bringing about the employee's injury. Again, we have no showing by the City that it did not breach a duty owed to Mr. Consalvo. Assuming a breach, the Court cannot say as a matter of law on this record that Mr. Consalvo's death was not among the foreseeable risks that made the City's conduct negligent.

The Court stresses that, on this motion, the issue is not Plaintiffs' prima facie case. For example, there is nothing in the record on this motion (even considering Plaintiffs' opposition papers that include a copy of the union contract) that shows that the two-worker requirement was designed, at least in part, to protect the workers from the risk of injury by a third person, or that the requirement was understood to apply to the type of task that Mr. Consalvo was told to perform. There is no admissible evidence as to the details of the accident, and, therefore, no evidence that, but for any negligence of the Department, the accident would not have happened.

But neither is there anything that shows the contrary, and that absence, together with the other identified gaps in the City's argument, determines this motion.

The City's motion for dismissal of the Verified Complaint is denied.

April 10, 2007___________________

Jack M. Battaglia [*7]

Justice, Supreme Court