Opinion
101812/2014
12-01-2017
Brian Eilerman, Plaintiff, v. June Carey, STEVEN ANTONINO, JOHN SILVA and TRICAM INDUSTRIES, INC., Defendants.
The following papers were fully submitted: Papers Numbered Notice of Motion of Defendant Tricam Industries, Inc. with Exhibits (dated April 12, 2017) 1 Notice of Motion of Co-Defendants June Carey and Steven Antonino with Exhibits (dated April 12, 2017) 2 Notice of Cross-Motion and Opposition of Plaintiff to preclude with Exhibits (dated June 28, 2017) 3 Reply Affirmation of Defendant Tricam Industries, Inc. (dated August 23, 2017) 4 Reply Affirmation of Co-Defendants June Carey and Steven Antonino (dated August 28, 2017) 5 HON. PHILIP G. MINARDO
Defendant Tricam Industries, Inc. ("Tricam") and defendants June Carey and Steven Antonino ("Carey and Antonino") move for summary judgment pursuant to CPLR §3212 to dismiss plaintiff's claims. Plaintiff cross-moves pursuant to CPLR §3126 to preclude the expert of defendant Tricam.
Plaintiff Brian Eilerman ("Eilerman") alleges he was hired by co-defendant, John Silva, to work at a residence located at 5 Ruxton Avenue, Staten Island, New York. Defendants June Carey and Steven Antonino are co-owners of 5 Ruxton Avenue. Defendant Tricam is the manufacturer of a step ladder, model ASL1-6, used by plaintiff on the date of the accident.
On June 27, 2013, Silva was removing wet insulation from the attic on the premises. The process of insulation removal as follows: Silva placed wet insulation in a bag while in the attic, Eilerman positioned himself inside the attic opening by standing on the first step of the Tricam model ASL1—6 ladder. Eilerman testified that he was provided the Tricam step ladder, model ASL1-6 by Silva, which Silva found uncovered beneath an outdoor deck at the residence. Eilerman did not recount reading the warnings and instructions for the ladder located on the ladder, nor did he note the condition of the ladder prior to his fall.
Silva handed the bag of insulation to Eilerman while standing in the attic opening. Once in receipt of a bag of wet insulation, Eilerman would step down the ladder and dispose of the bag outside. Eilerman climbed up the ladder and stood within the vicinity of attic opening at least five times. He stood on the first step then descended four times before the accident.
The last climb before the accident, Eilerman alleges that he moved his right foot down from the top step toward the ladder's second step. As he did, Eilerman held the ladder's left front rail between the top and the first step with his left hand while holding a bag of wet insulation in his right hand. Just before his right foot touched the second step, the ladder fell to his left, and Eilerman fell sustaining personal injury.
On or about April 29, 2015, Eilerman filed this personal injury action against the co-owners, Silva, and Tricam. The allegations in the complaint include common-law negligence, violations of New York Labor Law §200, §240(1), §241(6), and strict products liability. On or about November 25, 2014, co-defendants Carey and Antonino joined issue by service of an answer on January 6, 2015. On February 26, 2015, Tricam moved pre-answer, pursuant to the CPLR §3211(a)(7), to dismiss. On April 29, 2015, plaintiff served an amended complaint. On August 26, 2015, this Court granted Tricam's pre-answer motion to dismiss. On March 16, 2016, plaintiff and Tricam stipulated to dismiss certain claims in the complaint. On March 21, 2016, Tricam then served an answer to the complaint.
Co-defendant Silva has not appeared and a motion for default judgment was granted by this Court on January 23, 2017.
At issue herein are the motions of co-defendants Tricam and Carey and Antonino for summary judgment.
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v. Ceppos, 46 NY2d 223; Herrin v. Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). To prevail upon the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. However, once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562). In this regard, mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to raise a triable issue (id. at 562). Thus, summary judgment is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (Persaud v. Darbeau, 13 AD3d 347). As the movant, Tricam made a showing that the subject ladder must have been "reasonably safe for its intended purpose." (Liquore v. Tri-Arc Mfg. Co., 821 N.Y.S.2d 246, citing . Voss v. Black & Decker Mfg. Co., 59 NY.2d 102.)
Tricam cannot simply show compliance with minimum industry standards, as this is only "some evidence to be considered and is not a shield to liability." (Mercogliano v. Sears, Roebuck & Co., 756 N.Y.S.2d 472.) Rather, Tricam could be found liable: "to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages; provided: (1) that at the time of the occurrence the product is being used * * * for the purpose and in the manner normally intended, (2) that if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and (3) that by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages." (Codling v Paglia, 32 NY2d 330, 342; Voss, 59 NY.2d at 106.) A plaintiff alleging strict products liability may assert that "the product is defective because of a mistake in the manufacturing process or because of an improper design or because the manufacturer failed to provide adequate warnings regarding the use of the product (Voss, 59 NY.2d at 107).
Eilerman's injury occurred while working from the first step of Tricam's ladder. The warning label located on the ladder expressly forbid that work be performed from the first step. (Tricam's Motion exhibit "D".) Whether the manner of using the product is deemed defectively designed is determined "at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use" (Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471). Eilerman did not read the posted warning labels although they were clearly displayed.
Defendant Tricam has presented prima facie evidence which would entitle it to summary judgment. Plaintiff's remaining claim against Tricam alleges strict products liability, specifically, whether a design defect existed in the subject ladder which caused Eilerman to fall. In support of its motion for summary judgment, Tricam presents the affidavit of its expert, Jon Ver Halen, an industrial engineer. (Tricam Motion Exhibit "S.") As part of Mr. Ver Halen's examination of the ladder, he measured and tested the ladder, side rails and steps, to determine whether the ladder size and strength met the specifications for the model. He determined, based upon these measurements and nondestructive testing, that the subject ladder complied with the plans and specifications. He further concluded that the requirements for the ladder model ASL1—6 met the ANSI A 14.2 standard. The ANSI standard provides the design, manufacturing and labeling criteria for portable aluminum ladders. Mr. Ver Halen concluded based upon a reasonable degree of engineering certainty, that the subject ladder met the performance requirements of a ANSI A14.2 and 0SHJ 1926-1053 when it was manufactured.
In opposition, plaintiff did not present competent evidence to rebut Tricam's showing.
Specifically, plaintiff has failed to prove that Tricam's ladder is less safe than any other ladder on the market and does not cite a specific defect contained in Tricam's ladder design. Furthermore, plaintiff's own deposition states that the ladder was utilized in a manner inconsistent with the warning label by working from the first step.
Therefore, the motion of Tricam must be granted and the complaint and any cross-claims against Tricam are dismissed.
Defendants June Carey and Steven Antonino also move for summary judgment to dismiss plaintiff's complaint which alleges common law negligence, and violations of NY CLS Labor §200, §240(1) and §241(6) against these defendants.
NY CLS Labor §200
NY CLS Labor §200 is essentially codification of the common-law negligence theory ensuring a "general duty to protect the health and safety of employees" (Jock v. Fien, 80 NY2d 965). Essentially, individuals must work under "reasonable and adequate protection" when they utilize "machinery, equipment, and devices." While Jock maintains that Labor §200 may apply to situations outside construction worksites, it is typically appropriate only when an owner or employer "created a dangerous condition which caused the accident" or when that owner or employer had "actual or constructive notice of the dangerous condition that caused the accident" (Ortega v. Puccia, 57 AD3d 54). Labor Law §200 does not contain the single or two-family homeowners' exemption that §240(1) and §241(6) allows.
Plaintiff Eilerman worked with the ladder without incident prior to the injury. If there existed a dangerous condition with the ladder or worksite, Carey and Antonino did not receive any constructive notice of one. (Klein v. City of New York, 89 NY2d 833.) The existence of a dangerous condition is not the fault of the owner if the worker could have adjusted the manner of his work to make it safer (Azad v. 270 5th Realty Corp, 46 AD3d 728; Robinson v. East Med. Ctr., LP, 6 NY3d 550.) The warning label on the ladder unquestionably warns the user not to work from the first step, which Plaintiff admits he was doing when the accident occurred. If the ladder was "indisputably in proper working order, and needed no further protective devices," then "there could be no liability because the worker's actions were the sole proximate cause of the accident" (Blake v. Neighborhood Hous. Servs. of N.Y.C., Inc., 1 NY3d 280; Bland v. Manocherian, 66 NY2d 452.)
Regardless of the dangerous condition elements of Labor §200, the statute would only apply to Carey and Antonino if they had the responsibility to oversee the work being performed, which plaintiff has not shown. (Kearney v. Dynegy, Inc., 2017 NY Slip Op 05209.) They are co-owners of the property, they were not the individuals who contracted for the work. Additionally, the possibility that Carey and Antonino had notice or observed that the manner of the work being performed was unsafe does not equate to a breach of a common-law duty under a negligence theory. (Dennis v. City of New York, 304 AD2d 611.) NY CLS Labor §240(1) and §241(6)
NY CLS Labor §240(1) and §241(6) both allow an exemption from liability for "owners of one and two-family dwellings who contract for but do not direct or control the work." (Khlea v. Neiger, 85 NY2d 333.) Carey and Antonino fit this description because they were co-owners of the property, the work contracted for was residential not commercial in nature, and they did not exercise supervision or direction because they did not have the responsibility to do so.
Carey and Antonino are co-owners of the property and may have indirectly benefitted from the work, however, this does make the homeowner's exemption inapplicable. First, under the plain meaning of Labor §240(1) and §241(6), Carey and Antonino are not excluded by indirectly benefitting from this contracted work because the statutes do not specify 'direct' contracting. Second, the courts have not applied any restrictive construction into the homeowner's exemption. When the issue has arisen, Courts have deferred to the legislative history of Labor §240(1) and §241(6) which specified that "owners are those parties with a property interest who hire the general contractor to undertake the construction work on their behalf" (Copertino v. Ward, 100 AD2d 565, citing NY Legis Ann., 1969, pp 407-408).
The nature of the work being performed and the type of property involved is also factored in the determination of exemption (Cannon v. Putnam, 76 NY2d 644.) This case involves insulation removal in a one family residential home to remediate after Hurricane Sandy. The exemption would not extend to work that is solely commercial in nature (Van Amerogen v. Donnini, 577 N.E.2d 1035). The insulation removal work done here was for residential purposes, but would not extend to a commercial nature even if a future leasehold was considered (Bartoo v. Buell, 87 NY2d 362).
Carey and Antonino did not exercise the authority of supervising or directing the Plaintiff Eilerman's work nor did they have the responsibility to do so (Diltz v. Bowman, 246 AD2d 623). The notion of supervising or directing contracting work is "construed strictly" and focuses on a "situation where the owner supervises the manner and method of the work" (Malloy v. Hanache, 231 AD2d 693). Even if Carey and Antonino "periodically reviewed the progress of the work performed," this type of behavior would not warrant an exposure to liability (Kelly v. Bruno & Son, Inc., 190 AD2d 777). There is an express distinction between the level of direction and supervision a typical homeowner would employ compared to individuals with actual authority (Schwartz v. Foley, 142 AD2d 635).
Accordingly, it is hereby
ORDERED, that the motion of defendant Tricam for summary judgment is granted and the complaint and any cross-claims against Tricam are dismissed; and it is further
ORDERED, that the motion of defendants Carey and Antonino for summary judgment is granted and the complaint and any cross-claims against these defendants are dismissed; and it is further
ORDERED, that the cross-motion of plaintiff is denied; and it is further
ORDERED, the Clerk of the Court shall enter judgment in favor of defendants accordingly. ENTER December 1, 2017 /s/ Philip G.Minardo Hon. Philip G. Minardo, J.S.C