80 A.D.2d 990 | N.Y. App. Div. | 1981
Order unanimously reversed, without costs, motion granted and complaint dismissed. Callahan, J., not participating. Memorandum: Plaintiff and a coemployee arrived at defendant’s loading dock, at about noon, to pick up a piano for their employer. They were told everyone was out to lunch and that, if they wanted help, they would have to wait until after the lunch hour. Instead of waiting, they decided to load, the piano themselves. While loading the piano onto their truck, it fell, injuring plaintiff. Plaintiff filed a negligence action against defendant and defendant filed a third-party complaint against plaintiff’s employer. Defendant appeals Special Term’s denial of its summary judgment motion. In order for plaintiff to maintain this negligence action, he must show the existence of a duty owed to him by defendant and its breach (Palsgraf v Long Is. R.R. Co., 248 NY 339, 342; Bernard v Village of Andover, 8 AD2d 993, affd 7 NY2d 1050). Plaintiff’s claim that a duty existed under common-law principles for defendant to assist in loading the piano is without merit. Defendant merely failed to provide assistance during its workers’ lunch hour. Such behavior is not