Gwood v. Progressive Waste Sols., Inc.,

64 Misc. 3d 653, (N.Y. Sup. Ct. 2019)

Opinion [In relevant part]

Garfield GWOOD, Plaintiff, v. PROGRESSIVE WASTE SOLUTIONS OF LI, INC., IESI NY Corporation and Roberto A. Venditti, Defendants. Dawn McDonald, as Administrator of the Estate of Dwayne McDonald deceased, Plaintiff, v. Garfield A. Gwood, IESI NY Corporation and Roberto A. Venditti, Defendants. Maddia Monet Bunch, Individually and as Administrator of the Estate of Marquis Willis, Deceased, and as the Mother and Guardian of the Property of Their Infant Daughter, Lailonni Daisy Willis, Dion Willis and Selena McGuire, Plaintiff, v. Garfiled A. Gwood, Roberto A. Venditti a/k/a Robert A. Venditi, IESI NY Corporation, IESI Corporation, Progressive Waste Solutions of Li, Inc., Progressive Waste Solutions TS of Li Inc., John Does 1-5, a fictitious name

Attorney for Garfield Gwood, Plaintiff in Action No. 1, Kliopatre Vrontos, Esq., Rubenstein & Rynecki, Esqs., 16 Court Street, Brooklyn, NY 11241, (718) 522-1020

Attorney for Plaintiff in Action No. 2, The Cochran Firm, One Exchange Plaza, 55 Broadway, 23rd Floor, New York, NY 10006

Attorney for Plaintiff in Action No. 3, Peter DeFilippis & Associates, 369 Ashford Avenue, Suite L, Dobbs Ferry, NY 11714

Attorney for Defendant, Jennifer L. Sciales, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 150 East 42nd Street, New York, New York 10017-5639, (212) 490-3000

Attorney for Garfield Gwood, Defendant in Action No. 2 & No. 3, Picciano & Scahill. P.C, 1065 Stewart Avenue, Suite 210, Bethpage, NY 11714

Francois A. Rivera, J.

Action No. 3 Decision and Orders

The Willis Estate made a motion for summary judgment in their favor on the issue of liability as against all Action No. 3 defendants and for partial summary judgment finding that Willis’ death satisfied the “serious injury” requirement of Insurance Law § 5102(d).

There was no dispute that Venditti operated the garbage truck within the scope of his employment with IESI. Consequently, IESI and IESI Corporation were also liable pursuant to Vehicle Traffic Law § 388 and vicariously liable as Venditti’s employer.

The Willis Estate’s motion was granted in part and denied in part. It was granted on the issue of liability as against Venditti and Gwood in that both were negligent in the operation of their respective vehicles. Venditti violated Vehicle Traffic Law § 1141 by making an unsafe left turn in front of opposing traffic. Gwood plead guilty to Vehicular Manslaughter, a violation of Penal Law § 125.13, and admitted to driving while intoxicated and causing the death of two people by the subject collision. By his admission and by applying the principles of collateral estoppel Gwood was liable for the subject collision that resulted in the death of Marquis Willis. However, the apportionment of fault between Venditti and Gwood is to be resolved by a trial jury. The Willis Estate motion was also granted pursuant to Vehicle Traffic Law § 388 against IESI as the owner of the garbage truck operated by Venditti. Neither Venditti, Gwood, IESI Corporation or IESI raised a triable issue of fact.

The Willis Estate’s motion for summary judgment on the issue of liability was denied as against Progressive Waste Solutions of LI, Inc., Progressive Waste Solutions Ltd. and Progressive Waste Solutions TS of LI Inc for failure to make a prima facie showing of entitlement.

The garbage truck defendants motion for summary judgment dismissing the complaint as asserted against each of them was denied for the following reasons.

First, they failed to establish that Gwood was the sole proximate cause of the collision and that they were free of comparative fault. Second, they failed to establish that Marquis Willis contributed to Gwood’s intoxication or that he was an active participant in a drag race. Finally, they failed to establish that Marquis Willis experienced no conscious pain and suffering or pre-impact terror before his death.

Gwood v. Progressive Waste Sols., Inc., 64 Misc. 3d 653, 656-57 (N.Y. Sup. Ct. 2019)

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