Opinion
INDEX No. 11-14819
02-19-2016
JOSE ANTONIO AMAYA and MERCEDES BARAHINA, Plaintiffs, v. PETER REALI, LISA REALI, RANT PLUMBING & HEATING, INC., EAST MEADOW MECHANICAL SERVICES, INC., and DEVIA BROTHERS ASPHALT, INC., Defendants.
CANNON & ACOSTA, LLP Attorney for Plaintiffs 1923 New York Avenue Huntington Station, New York 11746 SCHONDEBARE & KORCZ, LLP Attorney for Defendants Reali 3555 Veterans Memorial Highway Ronkonkoma, New York 11779
COPY SHORT FORM ORDER PRESENT: Hon. DANIEL MARTIN MOTION DATE 12-24-14
ADJ. DATE 3-17-15
Mot. Seq. #004 MG; CASEDISP CANNON & ACOSTA, LLP
Attorney for Plaintiffs
1923 New York Avenue
Huntington Station, New York 11746 SCHONDEBARE & KORCZ, LLP
Attorney for Defendants Reali
3555 Veterans Memorial Highway
Ronkonkoma, New York 11779
Upon the following papers numbered 1 to 32 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers 1-14; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers 15-30; Replying Affidavits and supporting papers 31-32; Other ___; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion by defendants Peter Reali and Lisa Reali for summary judgment in their favor is granted.
Plaintiff Jose Amaya commenced this action to recover damages for injuries he allegedly sustained in October 2010 when he fell from a roof while performing framing work at a single-family residence in Searingtown, New York, owned by defendants Peter Reali and Lisa Reali. At the time of the accident, a remodeling project involving an expansion of the existing kitchen and the construction of a new den was underway at the residence. Plaintiff, a day laborer, allegedly was hired by nonparty Frank Loricco to perform framing work at the residence, and had worked on site for approximately one month before he was injured. According to his deposition testimony, the accident happened when plaintiff's foot slipped as he was installing tar paper on the roof of the extension, causing him to fall from the roof and land in a trench that had been dug for underground electrical wiring. The complaint asserts causes of action for violations of Labor Law §§ 200, 240 (1) and 241 (6), and for common law negligence. It also includes a derivative claim for loss of services interposed by plaintiff's wife, plaintiff Mercedes Barahona.
The Reali defendants now move for summary judgment in their favor on the complaint and the cross claims against them, arguing, in part, that the homeowner's exemption shields them from liability imposed under Labor Law §§ 240 (1) and 241 (6). They further assert plaintiff's claims based on Labor Law § 200 and common law negligence must be dismissed, because the accident was not caused by a dangerous condition on the premises. In support of their motion, defendants submit copies of the pleadings, a bill of particulars, the transcript of plaintiff's deposition testimony, and the transcripts of their own deposition testimony. Plaintiffs oppose the motion, arguing the Reali defendants were negligent in allowing an open trench at the job site, and that such trench ''caused or contributed to the injuries sustained by plaintiff." Plaintiffs also contend that evidence regarding Peter Reali's actions in connection with the remodeling project raises a triable issue as to whether he is entitled to the benefit of the homeowner's exemption. Plaintiffs' submissions in opposition to the motion include copies of the transcripts of plaintiff's and Peter Reali's deposition testimony, estimates for the remodeling project prepared by Jade Contracting, and permit applications for such project filed with the Town of North Hempstead by Peter Reali.
Initially, the Court notes that its computerized records show a stipulation discontinuing plaintiffs' claim against defendant Devia Brothers Asphalt, Inc., was executed on August 1, 2014, and that Rant Plumbing & Heating, Inc. and East Meadow Mechanical Services, Inc. did not appear in the action. As the Reali defendants are the only defendants remaining in the action, the application for leave to dismiss any cross claims against them is denied, as moot.
Labor Law § 240 (1) imposes a nondelegable duty on contractors, owners and their agents to provide workers engaged in construction, repair or renovation of a building with "proper protection" against elevation-related risks ( Jock v Fein , 80 NY2d 965, 967-968, 590 NYS2d 878 [1992]). An owner, agent or contractor who breaches this duty will be held strictly liable for injuries sustained as a result of such breach, regardless of whether the owner, agent or contractor exercised supervision or control over the plaintiff's work (see Ross v Curtis-Palmer Hydro-Elec . Co., 81 NY2d 494, 601 NYS2d 49 [1993]). The statute is intended to provide "exceptional protection" to workers subject to elevation-related hazards, such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured (see Ross v Curtis-Palmer Hydro-Elec. Co., supra; Rocovich v Consolidated Edison Co ., 78 NY2d 509, 577 NYS2d 219 [1991]). To establish a viable cause of action under Labor Law § 240 (1), a plaintiff first must show he or she was injured during the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure"(see Joblon v Solow , 91 NY2d 457, 672 NYS2d 286 [1998]). Having shown that Labor Law § 240 (1) is applicable, a plaintiff establishes a prima facie case of entitlement to summary judgment with proof that an owner, agent or contractor violated the duty owed under the statute, and that such violation proximately caused his or her injury (see Cahill v Triborough Bridge & Tunnel Auth ., 4 NY3d 35, 790 NYS2d 74 [2004]; Barr v 157 5 Ave., LLC , 60 AD3d 796, 875 NYS2d 228 [2d Dept 2009]; Florio v LLP Realty Corp., 38 AD3d 829, 833 NYS2d 148 [2d Dept 2008]; Woszcyna v BJW Assocs., 31 AD3d 754, 820 NYS2d 289 [2d Dept 2006]).
Similarly, Labor Law § 241 (6) requires owners and contractors, or their agents, to "provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. The duty under Labor Law § 241 (6) to comply with the Commissioner's regulations, which are set forth in the Industrial Code, is nondelegable ( Misicki v Caradonna , 12 NY3d 511, 515, 882 NYS2d 385 [2009]). To support a claim under Labor Law § 241 (6), the regulation relied upon by the plaintiff "must mandate compliance with concrete specifications and not simply general safety standards or reiterate common law principles" (id.), and the plaintiff must show that the violation of such regulation was a proximate cause of his or her accident (see Seaman v Betlmore Fire Dist., 59 AD3d 515, 873 NYS2d 181 [2d Dept 2009]).
However, both Labor Law §§ 240 (1) and 241 (6) provide that owners of a one- or two- family dwelling "who contract for but do not direct or control the work" are exempt from the absolute liability imposed under such statutes (see Bartoo v Buell , 87 NY2d 362, 639 NYS2d 778 [1996]; Garcia v Pond Acquisition Corp., 131 AD3d 1102, 16 NYS3d 755 [2d Dept 2015]; Holifield v Seraphim , LLC , 92 AD3d 841, 940 NYS2d 100 [2d Dept 2012]). The exemptions to shield owners of one and two-family homeowners, however, do not apply in circumstances where an owner directed or controlled the work being performed or where the property is used exclusively for commercial purposes (see Lombardi v Stout , 80 NY2d 290, 590 NYS2d 55 [1992]; Van Amerogen v Donnini , 78 NY2d 880, 573 NYS2d 443 [1991]). Further, the phrase "direct or control" in the statutes is strictly construed to refer to situations where a homeowner supervises the method and manner of the work performed at the residence (see Ortega v Puccia , 57 AD3d 54, 866 NYS2d 323 [2d Dept 2008]; Arama v Fruchter , 39 AD3d 678, 833 NYS2d 665 [2d Dept 2007]).
The Reali defendants' submissions established a prima facie case that they did not direct or control the work performed at their Searingtown property, and that such property is used for residential purposes (see Caiazzo v Mark Joseph Contr., Inc., 119 AD3d 718, 990 NYS2d 529 [2d Dept 2014]; DiMaggio v Cataletto , 117 AD3d 984, 986 NYS2d 536 [2d Dept 2014]; Holifield v Seraphim , LLC , 92 AD3d 841, 940 NYS2d 100; see also Castellanos v United Cerebal Palsy Assn . of Greater Suffolk , Inc., 77 AD3d 879, 909 NYS2d 757 [2d Dept 2010]). The burden, therefore, shifted to plaintiffs to raise a triable issue of fact (see Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]). Contrary to the assertions by plaintiffs' counsel, absent proof that he directed or supervised the framing work performed by plaintiff, evidence that Peter Reali obtained building, plumbing, HVAC and drainage permits from the Town of North Hempstead, hired contractors for the project and questioned whether the foundation work was performed in accordance with the architect's plans fails to raise a material issue as to whether the homeowner's exemption applies (see Bombard v Pruiksma , 110 AD3d 1304, 975 NYS2d 183 [3d Dept 2013]; Ferrero v Best Modular Homes , Inc., 33 AD3d 847, 823 NYS2d 477 [2d Dept 20061, lv dismissed 8 NY3d 841, 830 NYS2d 693 [2007]; Jenkins v Jones , 255 AD2d 805, 680 NYS2d 307 [3d Dept 1998]). "[N]either providing site plans, obtaining a building permit, hiring contractors, purchasing materials, offering suggestions/input, inspecting the site, retaining general supervisory authority, performing certain work nor physical presence at the site operates to deprive a homeowner of the statutory exemption - so long as the homeowner did not exercise direction or control over the injury-producing work" ( Bombard v Pruiksma , 110 AD3d 1304, 1305-1306, 975 NYS2d 183 [internal citations omitted]; see Nai Ren Jiang v Shane Yeh , 95 AD3d 970, 944 NYS2d 200 [2d Dept 2012]; Ferrero v Best Modular Homes , Inc., 33 AD3d 847, 823 NYS2d 477). Further, evidence that Peter Reali fired the general contractor originally hired for the project, hired a new general contractor, and accepted an offer by his brother-in-law, who was not paid for his labor, to dig a trench at the property does not raise an issue as to whether he was responsible for supervising the entire project (see Ferrero v Best Modular Homes , Inc., 33 AD3d 847, 823 NYS2d 477). Accordingly, the branch of the motion seeking dismissal of plaintiff's claims under Labor Law §§ 240 (1) and 241 (6) is granted.
The branch of the motion seeking dismissal of plaintiff's claims for violation of Labor Law § 200 and for common law negligence also is granted. Section 200 of the Labor Law codifies the common-law duty to provide workers with a safe place to work (see Rizzuto v L .A. Wenger Contr. Co., 91 NY2d 343, 670 NYS2d 816 [1998]; Jock v Fein , 80 NY2d 965, 590 NYS2d 878), and applies to owners, employers, and their agents ( Romang v Welsbach Elec. Corp., 47 AD3d 789, 852 NYS2d 144 [2d Dept 2008]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" ( Ortega v Puccia , 57 AD3d 54, 61, 866 NYS2d 323; see Chowdhury v Rodriguez , 57 AD3d 121, 867 NYS2d 123 [2d Dept 2008]). Where, as here, the condition of the premises is at issue, property owners may be held liable for violating Labor Law § 200 if they created the dangerous condition that caused the plaintiff's accident or if they had actual or constructive notice of such condition and failed to remedy it within a reasonable period of time (see White v Village of Port Chester , 92 AD3d 872, 940 NYS2d 94 [2d Dept 2012]; Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 919 NYS3d 44 [2d Dept 2011]; Rojas v Schwartz , 74 AD3d 1046, 903 NYS2d 484 [2d Dept 2010]; Ortega v Puccia , 57 AD3d 54, 61, 866 NYS2d 323).
Defendants established prima facie their entitlement to summary judgment as a matter of law with evidence that plaintiff's injury was not due to a dangerous condition on the premises. While property owners have a duty to maintain their property in a reasonably safe condition (see Peralta v Henriquez , 100 NY2d 139, 760 NYS2d 741 [2003]; Basso v Miller , 40 NY2d 233, 386 NYS2d 564 [ 1976]), they are not insurers of the safety of people on their property (see Nallan v Helmsley-Spear , Inc., 50 NY2d 507, 429 NYS2d 606 [1980]; Donahue v Seaman's Furniture Corp., 270 AD2d 451, 705 NYS2d 291 [2d Dept 2000]; Novikova v Greenbriar Owners Corp., 258 AD2d 149, 694 NYS2d 445 [2d Dept 1999]).
Here, plaintiff alleges his injury was due to a dangerous condition on the premises, namely, the dirt trench that had been dug for underground electrical wiring. Defendants met their burden on the Labor Law § 200 claim through plaintiff's deposition testimony that the accident was caused, not by the trench, but by his foot slipping out from under him while he was installing tar paper on the roof (see Azad v 270 5th Realty Corp., 46 AD3d 728, 848 NYS2d 688 [2d Dept 2007], lv denied 10 NY3d 706, 857 NYS2d 39 [2008]; see also Egan v Emerson Assoc., LLC , 127 AD3d 806, 6 NYS3d 600 [2d Dept 2015]; cf. Aragona v State of New York , 74 AD3d 1260, 905 NYS2d 237 [2d Dept 2010]). In opposition, plaintiffs failed to raise an issue of fact as to whether defendants' alleged negligence in allowing the trench to exist on the property was a substantial cause of the subject accident (see Garcia v Pepe , 11 AD3d 654, 783 NYS2d 406 [2d Dept 2004], lv dismissed in part, denied in part 5 NY3d 821, 804 NYS2d 31 [2005]). While proximate cause generally is a matter for the jury, a plaintiff who brings a negligence action must establish prima facie that the defendant's negligence was a substantial cause of the event which produced his or her injury ( Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 434 NYS2d 166 [1980]; see Maheshwari v City of New York , 2 NY3d 288, 778 NYS2d 442 [2004]; Garcia v Pepe , 11 AD3d 654. 783 NYS2d 406).
Accordingly, defendants' motion for summary judgment dismissing the complaint is granted. Dated: February 19, 2016
/s/_________
A.J.S.C.