Opinion
2014-06-25
Wilson MORA, plaintiff-respondent, v. David NAKASH, et al., defendants-respondents, M.N.C. General Contractors Corp., appellant (and a third-party action).
Tarshis & Hammerman LLP (Carol R. Finocchio, New York, N.Y., of counsel), for appellant. Bruce Montague, Bayside, N.Y. (Steven B. Drelich of counsel), for plaintiff-respondent.
Tarshis & Hammerman LLP (Carol R. Finocchio, New York, N.Y., of counsel), for appellant. Bruce Montague, Bayside, N.Y. (Steven B. Drelich of counsel), for plaintiff-respondent.
Hodgson Russ, LLP, New York, N.Y. (Margaret M. Cmielewski of counsel), for defendants-respondents.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the defendant M.N.C. General Contractors Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated December 14, 2012, as granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it, and granted that branch of the cross motion of the defendants David Nakash and Debbie Nakash which was for summary judgment dismissing its cross claims insofar as asserted against them.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion for summary judgment on the issue of liability as to the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant M.N.C. General Contractors Corp., and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendants David Nakash and Debbie Nakash payable by the defendant M.N.C. General Contractors Corp., and one bill of costs to the defendant M.N.C. General Contractors Corp. payable by the plaintiff.
The plaintiff allegedly sustained injuries while working on the construction project of a single-family house owned by the defendants David Nakash and Debbie Nakash (hereinafter together the owners). The plaintiff was employed by the third-party defendant Silvio Painting, Inc. (hereinafter Silvio Painting). According to the plaintiff's deposition testimony, he placed an open A–frame ladder atop a scaffold to apply a skim coat to an area of the house that was 15 to 18 feet high. The plaintiff lost his balance when the ladder on which he was standing moved, causing him to fall and sustain injuries. The plaintiff commenced this action against the owners and the general contractor on the project, the defendant M.N.C. General Contractors Corp. (hereinafter M.N.C.).
Contrary to M.N.C.'s contention, the owners properly denominated their request for relief as a cross motion since, in addition to seeking summary judgment dismissing all of the cross claims asserted against them by M.N.C., they also sought summary judgment dismissing the complaint insofar as asserted against them. Since the owners thereby sought affirmative relief against the plaintiff, who was the moving party, they properly denominated their request for relief as a cross motion ( seeCPLR 2215; Darras v. Romans, 85 A.D.3d 710, 711–712, 925 N.Y.S.2d 140), subject to the notice periods applicable to cross motions.
Turning to the merits, the Supreme Court properly granted that branch of the owners' cross motion which was for summary judgment dismissing M.N.C.'s cross claims. Pursuant to Labor Law § 240(1), “owners of one and two-family dwellings who contract for but do not direct or control the work” are exempt from liability thereunder. The owners made a prima facie showing that they were entitled to the homeowner's exemption by submitting evidence that their house was a single-family residence and that they did not direct or control the plaintiff's work ( see Ortega v. Puccia, 57 A.D.3d 54, 59, 866 N.Y.S.2d 323;Arama v. Fruchter, 39 A.D.3d 678, 679, 833 N.Y.S.2d 665;Saverino v. Reiter, 1 A.D.3d 427, 767 N.Y.S.2d 445;Kolakowski v. Feeney, 204 A.D.2d 693, 694, 612 N.Y.S.2d 243). In opposition, M.N.C. failed to raise a triable issue of fact as to the applicability of the homeowner's exemption. Accordingly, the owners were entitled to summary judgment dismissing M.N.C.'s cross claims, which were asserted against them.
However, the Supreme Court should not have granted the plaintiff's motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) against M.N.C. The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of a transcript of his deposition, at which he testified that the ladder and scaffold failed to afford him proper protection for the work being performed, and that this failure was the proximate cause of his injuries ( see Gonzalez v. AMCC Corp., 88 A.D.3d 945, 946, 931 N.Y.S.2d 415;Inga v. EBS N. Hills, LLC, 69 A.D.3d 568, 569, 893 N.Y.S.2d 562;Chlebowski v. Esber, 58 A.D.3d 662, 662–663, 871 N.Y.S.2d 652). In opposition, M.N.C. raised a triable issue of fact as to whether it lacked the authority to supervise the plaintiff's work and enforce safety standards at the site. M.N.C. submitted evidence showing that M.N.C. was responsible for supervising only those subcontractors that it hired, that it did not hire Silvio Painting as its subcontractor, that Silvio Painting and M.N.C. had separate contracts with the owners, that M.N.C.'s contract excluded it from responsibility for overseeing the paint job, and that M.N.C.'s contract did not provide that it was responsible for enforcing safety standards ( see Reilly v. Loreco Constr., 284 A.D.2d 384, 386, 726 N.Y.S.2d 142;cf. Aversano v. JWH Contr. LLC, 37 A.D.3d 745, 746–747, 831 N.Y.S.2d 222;Loiacono v. Lehrer McGovern Bovis, 270 A.D.2d 464, 465, 704 N.Y.S.2d 658). In addition, M.N.C. raised a triable issue of fact as to whether the plaintiff's conduct was the sole proximate cause of his accident, as it submitted evidence showing that either the ladder or the scaffold, alone, was adequate for the job at hand, thereby negating any need for the plaintiff's placement of the ladder on top of the scaffold ( see Singh v. City of New York, 113 A.D.3d 605, 606, 977 N.Y.S.2d 914;Bin Gu v. Palm Beach Tan, Inc., 81 A.D.3d 867, 868, 917 N.Y.S.2d 661;Probst v. 11 W. 42 Realty Invs., LLC, 106 A.D.3d 711, 712, 965 N.Y.S.2d 513).
M.N.C.'s remaining contentions are without merit.