Opinion
Index No. 20666/2019E
04-10-2023
Jorge Salazar, Plaintiff, v. 52 W 9th Street Owners Corp., Defendant.
Unpublished Opinion
Lucindo Suarez, J.
PAPERS NUMBERED
Defendant/Third-Party Plaintiff 52 W 9th Street Owners Corp.'s Notice of Motion, Affirmation in Support, Exhibits (Mtn. Seq. # 3) NYSCEF Doc. No. 72-94
Stipulation - Withdrawing Motion (Mtn. Seq. # 3) NYSCEF Doc. No. 95
Defendant/Third-Party Plaintiff 52 W 9th Street Owners Corp.'s Notice of Motion, Statement of Material Facts, Affirmation in Support, Exhibits (Mtn. Seq. # 4) NYSCEF Doc. No. 96-119
Third-Party Defendant Hudson Greencraft, LLC's Counter Statement of Facts, Affirmation in Opposition, Exhibits (Mtn. Seq. # 4) NYSCEF Doc. No. 123-132
Defendant/Third-Party Plaintiff 52 W 9th Street Owners Corp.'s Reply Affirmation, Exhibits (Mtn. Seq. # 4) NYSCEF Doc. No. 161-163
Defendant/Third-Party Plaintiff 52 W 9th Street Owners Corp.'s Affirmation in Further Support and Rejection of Plaintiff's Reply Affirmation (Mtn. Seq. # 4) NYSCEF Doc. No. 166
Plaintiff's Notice of Cross-Motion, Statement of Material Facts, Counter Statement of Material Facts, Affirmation in Support of Cross-Motion and Opposition to Defendant/Third-Party Plaintiff 52 W 9th Street Owners Corp.'s Motion, Exhibits (Mtn. Seq. # 4) NYSCEF Doc. No. 133-142
Defendant/Third-Party Plaintiff 52 W 9th Street Owners Corp.'s Affirmation in Opposition to Plaintiff's Cross-Motion and in Support of Motion, Response to Statement of Material Facts, Exhibits (Mtn. Seq. # 4) NYSCEF Doc. No. 154-158 NYSCEF Doc. No. 144-160
Defendants Notice of Motion, Affirmation in Support, Exhibits (Mtn. Seq. # 5) NYSCEF Doc. No. 164
Plaintiff's Affirmation in Opposition (Mtn. Seq. # 5)
Defendants in Further Support and Reply Affirmation (Mtn. Seq. # 5) NYSCEF Doc. No. 167
Motion sequence Numbers 3, 4 and 5 are consolidated for determination herein. In addition, while CPLR §2214 and 22 NYCRR §202.8-b(e) do not expressly recognize the right to serve a reply on a cross-motion, Defendant submits a sur-reply to its motion in chief without leave by fashioning the papers as an "Affirmation in Further Support of Summary Judgment Motion and Rejection of Plaintiff's Reply Affirmation." The court will consider Defendant's sur-reply and Plaintiff's reply in further support of its cross-motion.
The primary issue in Defendant/Third-Party Plaintiff 52 W 9TH Street Owners Corp.'s (Defendant) summary judgment motion is whether a cooperative composed of two residential units falls within the homeowner's exemption contained in Labor Law §§240(1) and 241(6) despite an owners' mix commercial-residential use.
The secondary issue is whether Defendant is entitled to contractual indemnification from Third-Party Defendant Hudson Greencraft, LLC. This court finds that Defendant established its entitlement to summary judgment on its contractual indemnification claim.
This court holds that the homeowner's exemption under Labor Law §§240(1) and 241(6) is applicable to Defendant due to its sui generis cooperative composition consisting of only two residential units, and the record demonstrating that Defendant did not control or supervise the injury-producing work.
Plaintiff's cross-motion for summary judgment on the Labor Law §§240(1) and 241(6) claims are denied. Moreover, Plaintiff did not oppose Defendant's application to dismiss the Labor Law §200 claim, therefore, same is dismissed, without opposition, and shall not be addressed herein. Lastly, despite an occupant's mix commercial use, Plaintiff's request for disclosure of non-party witness tax returns is denied.
Plaintiff Jorge Salazar, an employee of Third-Party Defendant Hudson Greencraft LLC (Hudson), fell from a ladder and suffered injuries.
Eileen Newmark, the Secretary-Treasurer for Defendant testified that she has held the position since 2016. The Defendant's board of directors is comprised of three board members: Ms. Newmark, her husband Craig Newmark, and Mario Debenedetti. The Newmarks occupy and own the shares for the first and second floor bi-level unit, under a proprietary lease from Defendant; and the Debenedettis occupy and own the shares for the third and fourth floor bi-level unit, with its mezzanine, also with a proprietary lease from Defendant. See NYSECF Doc. No.153 Newmark Tr. 8-9.
According to Eileen Newmark, Mr. Newmark retired from his business (Craig Newmark founded Craigslist), but established his own non-for-profit foundation, and serves on many Boards of Directors, and does work for those entities from this home office. See NYSECF Doc. No.153 Newmark Tr. 38.
She further testified: that the units were and are used primarily for residential and not for commercial purposes; that Hudson was retained to perform the work; Defendant did not have a representative supervising the renovation; the accident occurred while performing work in the Newmark Unit; the project was "one project" but divided into three contracts for payment purposes-the Newmark contract, the DiBenedetti contract, and the Defendant contract for common areas; Hudson had site supervisors; and that neither she nor Defendant supervised or controlled the means and methods of Hudson's work. (NYSECF Doc. No.153).
As originally enacted, Labor Law §§240(1) and 241(6) imposed strict liability on owners and contractors in the absence of supervision or control. See Zangiacomi v. Hood, 193 A.D.2d 188, 603 N.Y.S.2d 31 (1st Dep't 1993). In 1980, the New York State Legislature amended Labor Law §§240(1) and 241(6) to exempt "owners of one and two-family dwellings" who contract for and do not direct or control the contractor's work.
The Plaintiff, relying on Krukowski v. Steffensen, 194 A.D.2d 179, 605 N.Y.S.2d 773 (2d Dept. 1993) (one family home used solely for rental to tenants) argues the Newmarks' duel commercial/residential use of the units abrogates the application of the homeowner's exemption. This court disagrees.
Plaintiff attempts to rely upon an unauthenticated real estate printout which describes the subject premises as a three-unit cooperative. However, same cannot be considered as it was not tendered in admissible form, nor did Plaintiff provide a reasonable excuse for his failure in tendering same. See Zuckerman v. New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980).
Defendant made a prima facie showing of its entitlement to the homeowner's exemption. It is uncontroverted that the subject cooperative solely consisted of a two-family dwelling, used primarily for residential purposes, and that the proprietary lessees did not direct or control the injury-producing work. See Farias v. Simon, 122 A.D.3d 466, 997 N.Y.S.2d 28 (1st Dep't 2014). Plaintiff failed to raise triable issues of fact. The fact that proprietary lessee, Craig Newmark, worked from a home office and attended Zoom meetings does not convert the subject premises into a commercial/investment venture that falls outside of the homeowner's exemption. As the Court of Appeals held: "when an owner of a one-or two-family dwelling contracts for work that directly relates to the residential use of the home, even if the work also serves a commercial purpose, that owner is shielded by the homeowner's exemption from the absolute liability." Bartoo v. Buell, 87 N.Y.2d 362, 662 N.E.2d 1068, 639 N.Y.S.2d 778 (1996); see also Van Amerogen v. Donnini, 78 N.Y.2d 880, 557 N.E.2d 1035, 573 N.Y.S.2d 443 (1991); and Guryev v. Tomchinsky, 20 N.Y.3d 194, 981 N.E.2d 273, 957 N.Y.S.2d 677 (2012).
Although in Guryev, in dicta mentioned cooperative corporations have been considered "owners" potentially liable under the Labor Law, it did not envision the rather unique cooperative structure presented here wherein the cooperative is composed of two residential units.
Accordingly, since the subject cooperative is composed of two residential units, and the occupants engaged in some mix-use activity and did not exercise control or supervision over the injury-producing work, the homeowner's exemption applies. See Cannon v. Putnam, 76 N.Y.2d 644, 564 N.E.2d 626, 563 N.Y.S.2d 16 (1990).
To the extent Defendant failed to plead the homeowner's exemption as an affirmative defense in its answer, is of no consequence as Plaintiff failed to demonstrate prejudice. See Bautista v. Archdiocese of NY, 164 A.D.3d 450, 84 N.Y.S.3d 47 (1st Dep't 2018).
Moreover, Defendant demonstrated its prima facie entitlement to judgment on its third-party claim for contractual indemnity against Hudson.
Eileen Newmark's testimony: that she executed a separate hold harmless agreement following the execution of the contract for the underlying work demonstrated Hudson's intent to indemnify Defendants for claims arising out of Hudson's contracted work. The evidence is not in dispute. On October 3, 2016, Defendant and Hudson entered into a separate hold harmless agreement, wherein Hudson explicitly agreed to contractually indemnify Defendant. Further, Defendant established that it did not supervise or control the injury-producing work, nor was there any evidence to suggest that Defendant furnished tools or equipment to Plaintiff. Consequently, Defendant demonstrated its freedom from negligence and is therefore, entitled to contractual indemnity. Priestly v. Montefiore Med. Ctr., 10 A.D.3d 493, 781 N.Y.S.2d 506 (1st Dep't 2004).
Lastly, Defendant's motion for a protective order is granted. Despite the mix commercial use, disclosure of non-party defendant's tax returns is denied. Plaintiff failed to make a sufficient showing of necessity nor did Plaintiff demonstrate how the tax returns are relevant, and indispensable to this labor law litigation. Contrary to Plaintiff's contention, the nonparties met their initial burden of establishing that the requested disclosure was irrelevant, and in response, Plaintiff failed to establish that the requested disclosure was material and necessary to the prosecution of this action. See Islip Theaters, LLC v. Landmark Plaza Props. Corp., 183 A.D.3d 875, 876, 125 N.Y.S.3d 161(2d Dept. 2020); see also Hudson City Sav. Bank v. 59 Sands Point, LLC, 153 A.D.3d at 613, 57 N.Y.S.3d 399 (2d Dep't 2017).
Accordingly, it is
ORDERED, that Defendant's summary judgment motion (Mtn. Seq. # 4) seeking dismissal of the complaint is granted; and it is further
ORDERED, that Defendant is entitled to contractual indemnity from Hudson; and it is further
ORDERED, that Plaintiff's cross-motion for summary judgment seeking judgment as to liability on the Labor Law §§240(1) and 241(6) claims and to extend the deadline to file the note of issue is denied; and it is further
ORDERED, that Defendant's prior summary judgment motion (Mtn. Seq. # 3) is withdrawn; and it is further
ORDERED, that Defendant's motion for a protective order is granted (Mtn. Seq. # 5).
This constitutes the decision and order of the court.