Diane Consalvo v City of New York

The decedent was a New York City sanitation worker. He was employed with the Department of Sanitation for ten years and his duties included picking up and disposing of dead animals. In 2000 the decedent was instructed to remove a dead cat from the roadway and in the process was struck and killed by a hit-and-run driver. Plaintiffs brought about an action to recover damages for wrongful death against the City of New York Department of Sanitation and the City of New York. The defendants appealed with a motion for summary judgment dismissing the complaint. Supreme Court denied the motion leading to this appeal.

Plaintiffs alleged that the defendants’ negligence caused decedent’s death. The defendants showed that the decedent was an experienced sanitation worker who was aware of the risks inherent in his job which included the duty of picking up dead animals from the roadway. The plaintiffs failed to raise a triable issue of fact with their contention that the defendants had a duty to send two sanitation workers to pick up the dead animal. Though union rules recommend sending two sanitation workers to promote efficiency, defendants were not required to do so.

Accordingly, the Supreme Court granted defendants’ motion for summary judgment dismissing the complaint.