Opinion
INDEX No. 14-2766
05-21-2019
CESAR CASTRO, Plaintiff, v. ALLIANCE EQUITY PARTNERS, LLC, Defendant.
JORDAN & LEVERRIER, P.C. Attorney for Plaintiff 257 Pantigo Road East Hampton, New York 11937 DEVITT SPELLMAN BARRETT LLP Attorney for Defendant 50 Route 111, Suite 314 Smithtown, New York 11787
COPY
SHORT FORM ORDER CAL. No. 18-00547OT PRESENT: Hon. DAVID T. REILLY Justice of the Supreme Court MOTION DATE 11-7-18 (003 & 004)
ADJ. DATE 12-19-18
Mot. Seq. # 003 - MotD # 004 - MG JORDAN & LEVERRIER, P.C.
Attorney for Plaintiff
257 Pantigo Road
East Hampton, New York 11937 DEVITT SPELLMAN BARRETT LLP
Attorney for Defendant
50 Route 111, Suite 314
Smithtown, New York 11787
Upon the following papers numbered 1 to 22 read on these motions for summary judgment and for leave to file a late motion: Notices of Motion and supporting papers 1 - 8; 14 - 22; Answering Affidavits and supporting papers 9 - 11; Replying Affidavits and supporting papers 12 - 13; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motions by defendant are consolidated for purposes of this determination; and it is
ORDERED that the motion (seq. 003) by defendant for summary judgment dismissing the complaint against it is granted to the extent provided herein, and is otherwise denied; and it is further
ORDERED that the motion (seq. 004) by defendant for leave to file a late motion for summary judgment is granted.
This action was commenced by plaintiff Cesar Castro to recover damages for injuries he allegedly sustained on February 22, 2011, when he slipped and fell while performing construction work at a premises known as 439 Butter Lane, Bridgehampton, New York. Defendant Alliance Equity Partners, LLC, was the owner of the subject premises. By his complaint and bill of particulars, plaintiff asserts claims sounding in general premises liability, as well as pursuant to Labor Law §§ 200 and 240.
Defendant now moves for summary judgment in its favor, arguing that plaintiff's Labor Law § 240 (1) claim should be dismissed because the incident was not elevation-related, that it was not acting in the capacity of a general contractor for the construction site, that it did not supervise the plaintiff's work, and that the edifice under construction was a one or two-family home, exempting it from liability for plaintiff's alleged injuries. Defendant also moves for leave to file the aforementioned motion for summary judgment late, arguing that it can show good cause therefor. In support of its motion for summary judgment, defendant submits copies of the pleadings, transcripts of the parties' deposition transcripts, and a transcript of nonparty Dean Boyer's deposition testimony.
As an initial matter, the Court will address defendant's second motion (seq. 004) first. Said motion is unopposed by plaintiff and seeks leave to file a motion for summary judgment (seq. 003) beyond the 120-day period specified in CPLR 3212 (a). CPLR 3212 (a) requires a "showing of good cause for the delay in making the motion- a satisfactory explanation for the untimeliness- rather than simply permitting meritorious, nonprejudicial filings, however tardy" ( Brill v City of New York , 2 NY3d 648, 652, 781 NYS2d 261 [2004]; see Miceli v State Farm Mut . Auto. Ins. Co., 3 NY3d 725, 786 NYS2d 379 [2004]; Puello v Georges Units , LLC ,146 AD3d 561, 46 NYS3d 28 [1st Dept 2017]). Absent a showing of good cause, "a court has no discretion to entertain even a meritorious, nonprejudicial summary judgment motion" ( Hesse v Rockland County Legislature , 18 AD3d 614, 614, 795 NYS2d 339 [2d Dept 2005]; Rivera v Toruno ,19 AD3d 473, 796 NYS2d 708 [2d Dept 2005]; see also Mayorquin v AP Development , LLC, 92 AD3d 849, 939 NYS2d 129 [2d Dept 2012]).
Here, defendant avers that its motion was served upon plaintiff well within the 120-day period following filing of the note of issue herein, but was inadvertently filed with the Court without inclusion of the requisite filing fee. According to defendant's counsel, the motion was rejected and returned by the Court due to its failure to pay that fee, but that defendant did not receive notice of that rejection for some months. Defendant further states that in the period between when it initially filed its summary judgment motion and when it learned of its rejection, it engaged in dialogue with plaintiff's counsel, granting plaintiff additional time to file his opposition to such motion. In essence, defendant argues that despite being served upon opposing counsel within the proper time period, law office failure resulted in his motion for summary judgment not being properly filed with the Court until nearly three months after the statutory deadline. The Court finds defendant has shown good cause for its motion's late filing. Accordingly, defendant's motion for leave to file a late summary judgment motion is granted.
Turning now to defendant's motion for summary judgment dismissing the complaint against it, plaintiff testified that at the time of the incident in question, he had been employed by Don't Move, Improve, a company owned by Dean Boyer, for 12 years, He stated that Don't Move, Improve performed residential home improvements, including carpentry and tile work. Plaintiff indicated that on the subject date, he was installing interior doors at the home under construction on the subject premises. Upon questioning, he testified that the weather was "completely cold," that "everything was frozen," and that there was snow and ice on the ground. Plaintiff testified that he believes Christopher Tufo was the owner of the premises, that he was acting as the general contractor for the project, and that he lived in nearby Hampton Bays.
Immediately prior to plaintiff's incident, the truck delivering the interior doors pulled within 13 feet of the house's entrance. Plaintiff stated that there was a plywood deck attached to the entranceway, but that there was an area of bare dirt between the truck and the deck. He testified that in the dirt area "[t]here were some pieces of Sheetrock on the floor, on the ground, and there was ice." He described the Sheetrock pieces as measuring 2 feet by 3 feet, with some larger and some smaller. Plaintiff indicated that he and one other person carried a heavy door, measuring approximately 80 by 60 inches, from the delivery truck toward the home's entrance. He testified that he walked backwards over the dirt and over the deck for approximately eight feet, until he nearly reached the entrance door. Plaintiff stated that when he was "a foot" away from the entrance, he observed that "the ground around the door was frozen," he "slipped on the ice," then "the door fell on [his] hand [pinning it] against the saddle of the [main] door."
Christopher Tufo testified that he is self-employed, having been in the business of buying and selling yachts for the last 20 years. Upon questioning, he denied ever having been a contractor, builder, carpenter, architect, or a member of any trade. He stated that he was living in Pompano Beach, Florida at the time of the incident in question, but that in summer months, he stays on a friend's property in Hampton Bays, New York. Asked whether he had owned homes on Long Island prior to the subject date, he indicated that he had, in Huntington, Babylon, Westhampton Beach, and Southampton. He explained that he lived in each of those homes, sequentially, for a significant period of time in each.
Mr. Tufo testified that he purchased the subject premises as an unimproved lot in approximately August 2010, with the intention of constructing a residence thereupon. He indicated that he formed a Delaware limited liability company entitled "Alliance Equity Partners, LLC," of which he is the sole member, for the purposes of purchasing the subject premises. Asked why he formed Alliance, he stated that it was "just because [he] saw everyone else [in the Hamptons] do it, and it seemed like the way to do it." Mr. Tufo testified that after he sold the subject premises in 2011, he stopped paying the requisite franchise tax to the Delaware Division of Corporations, because "[t]he house was sold and there was no need for it."
Mr. Tufo testified that there was no general contractor for the construction of the home at the subject premises. Rather, Alliance hired an architect, who designed the home to his specifications, and those plans were distributed to various tradespeople hired by Alliance as property owner. Mr. Tufo stated that each contractor was informed of what particular aspect of the construction it was to accomplish, and then was authorized to commence, as well as complete, such work without any deadlines. He further stated that he informed each contractor that it was their responsibility to maintain safe working practices. Mr. Tufo indicated after hiring the contractors in the Fall of 2011, he flew to his other home in Florida for the winter, returning to Long Island approximately three times between then and the time of construction's completion in late-Spring 2012. Mr. Tufo testified that (he return trips to Long Island were very brief, lasting only two to three days each, during which time he would travel to the subject premises and note the progress of the construction. He stated that he also received occasional telephone calls while he was in Florida from contractors informing him that their portion of the work had been completed.
Nonparty Dean Boyer testified that he is a general contractor, a carpenter, the former employer of plaintiff, and a long-time friend of Christopher Tufo. He stated that he and Mr. Tufo have been in the business of "flipping houses" since approximately 1990. Mr. Boyer indicated that Mr. Tufo's role in the business was as "the money man" and purchaser of the properties, while his role was performing renovations on those properties. He testified that Mr. Tufo would live at each property "for a while," after which he "moved on to the next." Questioned regarding the subject premises, Mr. Boyer stated that he was a subcontractor, that he does not know who the general contractor was, but that "[t]he contractor obtains all permits."
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853, 487 NYS2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr . Corp., 18 NY3d 499, 942 NYS2d 13 [2012]; Zuckerman v City of New York ,49 NY2d 557, 427 NYS2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth . of N.Y. & N.J., 29 NY3d 27, 52 NYS3d 68 [2017]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v Varsity Holdings , LLC, 18 NY3d 335, 339, 937 NYS2d 157 [2011]).
The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Nallan v Helmsley-Spear , Inc., 50 NY2d 507, 429 NYS2d 606 [1980]; Milewski v Washington Mut., Inc.,88 AD3d 853, 931 NYS2d 336 [2d Dept 2011]). A real property owner "will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence" ( Yeung v Selfhelp (KIV) Assoc., L.P., 170 AD3d 653, 653, 95 NYS3d 312 [2d Dept 2019], quoting Cuillo v Fairfield Prop. Servs., L.P., 112 AD3d 777, 778, 977 NYS2d 353 [2d Dept 2013]). A defendant has constructive notice of a hazardous condition on property "when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" ( Torre v Aspen Knolls Estates Home Owners Assn., Inc., 150 AD3d 789, 790, 54 NYS3d 84 [2d Dept 2017]). On a motion for summary judgment, "the question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case" ( Riviere v City of New York ,127 AD3d 720, 720-721, 7 NYS3d 219 [2d Dept 2015]).
Labor Law § 240 (1) provides, in relevant part, that "[a]ll contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." The law "imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks" ( Saint v Syracuse Supply Co., 25 NY3d 117, 124, 8 NYS3d 229 [2015]). The hazards intended to be mitigated by Labor Law § 240 (1) "are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" ( Rocovich v Consolidated Edison Co.,78 NY2d 509, 514, 577 NYS2d 219 [1991]; see Ross v Curtis-Palmer Hydro-Elec . Co., 81 NY2d 494, 501, 601 NYS2d 49 [1993]).
Labor Law § 200 is a codification of the common-law duty imposed upon an owner, contractor, or their agent to provide construction site workers with a safe place to work (see Comes v New York State Elec . & Gas Corp., 82 NY2d 876, 609 NYS2d 168 [1993]; Haider v Davis , 35 AD3d 363, 827 NYS2d 179 [2d Dept 2006]). "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" ( DeFelice v Seakco Constr. Co., LLC , 150 AD3d 677, 678, 54 NYS3d 55 [2d Dept 2017], quoting Ortega v Puccia ,57 AD3d 54, 61, 866 NYS2d 323 [2d Dept 2008]). A real property owner who moves for summary judgment "has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence" ( Hanney v White Plains Galleria , LP , 157 AD3d 660, 661, 68 NYS3d 522 [2d Dept 2018]). Then, to meet its prima facie burden on the issue of lack of constructive notice, "the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (id.).
Alliance has established a prima facie case of entitlement to summary judgment in its favor regarding plaintiff's cause of action asserted under Labor Law § 240 (1) (see Nicometi v Vineyards of Fredonia , LLC , 25 NY3d 90, 7 NYS3d 263 [2015]; see generally Alvarez v Prospect Hosp., supra). Here, plaintiff alleges his injury was caused by his slipping on an icy condition at the premises, not by any elevation-related risks (see generally Saint v Syracuse Supply Co ., supra). Thus, through the submission of a transcript of plaintiff's deposition testimony, defendant demonstrated that the mechanism of plaintiff's alleged injury does not fall within the risks intended to be prevented under Labor Law § 240 (1). Plaintiff does not offer an argument or evidence in opposition to raise a triable issue of whether the cause of his alleged injury falls within the purview of Labor Law § 240 (1). Accordingly, plaintiff's cause of action alleging a violation of Labor Law § 240 (1) is dismissed.
As to plaintiff's claims under common-law negligence and a violation of Labor Law § 200, however, Alliance failed to establish a prima facie case of entitlement to summary judgment (see DeFelice v Seakco Constr . Co., LLC, supra). If a plaintiff's injuries are attributable to dangerous premises conditions at a work site, "the general contractor may be held for a violation of Labor Law § 200 if he or she had control over the work site and either created the condition that caused the accident, or had actual or constructive notice of the dangerous condition" ( Simon v Granite Bldg. 2 , LLC, 170 AD3d 1227, 1232, 97 NYS3d 240 [2d Dept 2019]). Further, "homeowners ha[ve] a duty to keep their property in a reasonably safe condition and provide workers with a safe place to work, even though they [are] residing out of state at the time of the accident" ( DeFelice v Seakco Constr. Co., LLC , supra at 678). Defendant failed to submit evidence demonstrating that it was not a general contractor, that it did not create the alleged icy condition, or that it did not have constructive notice thereof. Regarding constructive notice, defendant also failed adduce evidence of when the premises was last cleaned or inspected (see Hanney v White Plains Galleria , LP , supra).
Accordingly, the motion by defendant Alliance Equity Partners, LLC, for summary judgment dismissing the complaint against it is granted to the extent provided herein, and is otherwise denied. Dated: May 21, 2019
Riverhead, NY
/s/_________
J.S.C.