Opinion
16915/08.
Decided December 16, 2010.
Perry D. Silver, Esq., New York, NY, Attorney for Plaintiff.
Terranca J. Ingrao, Esq., Purcell Ingrao, P.C., Mineola, NY, Attorney for Defendants.
By notice of motion filed on June 25, 2010, under motion sequence number one, plaintiff Nur Hossain (Hossain) moves pursuant to CPLR § 3212 for an order granting summary judgment in his favor on the issue of liability against defendants Marek and Marzena Kurzynowski (hereinafter the Kurzynowskis) on his claim under Labor Law § 240 (1).
By notice of motion filed on June 28, 2010, under motion sequence number two, the Kurzynowskis jointly move pursuant to CPLR § 3212 for an order granting them summary judgment in their favor on the issue of liability and dismissing the complaint.
BACKGROUND On June 13, 2008, Hossain commenced this action by filing a summons and complaint with the Kings County Clerk's office. The Kurzynowskis joined issue by their joint verified answer dated August 12, 2008.
The complaint contains thirteen allegations of fact in support of a single cause of action for damages due to personal injuries allegedly by Hossain in a construction accident as a consequence of the Kurzynowskis' violation of Labor Law §§ § 200, 240, and 241(6). Hossain alleges, in sum and substance, that on November 27, 2007, he was on a ladder performing construction work at a residence owned by the Kurzynowskis, and that he fell and injured himself due to the Kurzynowskis' failure to provide sufficient safety devices.
The Kurzynowskis verified answer contains seven affirmative defenses. The first is premised on the doctrine of collateral estoppel. The second is premised on CPLR § 4545. The third is that the court lacks personal jurisdiction over the Kurzynowskis. The fourth is that Hossain failed to properly serve the Kurzynowskis. The fifth is premised on the Worker's Compensation Law. The sixth is that the accident was caused by intervening superceding acts of third parties. The seventh is that the accident resulted from Hossain's own negligence.
A note of issue was filed on April 30, 2010.
MOTION PAPERS Hossain's motion papers consist of a notice of motion, his attorney's affirmation and nine annexed exhibits labeled 1 through 9. Exhibit 1 is Hossain's affidavit. Exhibit 2 is a series of photographs. Exhibit 3 is an excerpt of a transcript of the deposition of Hossain taken on July 24, 2009. Exhibit 4 is an affidavit of non-party Iqbal Hossain. Exhibit 5 is a copy of an ambulance report. Exhibit 6 is an excerpt of a transcript of the deposition of Mark Kurzynowski taken on March 10, 2010. Exhibit 7 is a copy of a handwritten document. Exhibit 8 is an affidavit of Stuart Sokoloff, a professional engineer. Exhibit 9 is a copy of the instant summons and complaint.
The Kurzynowskis submitted an attorney's affirmation in opposition to Hossain's motion and five annexed exhibits labeled A through E. Exhibit A is an affidavit of Paul Angelides, a professional engineer. Exhibit B is a copy of a bill of particulars. Exhibit C is a series of photographs. Exhibit D is a copy of an invoice. Exhibit E is a copy of a provision from the New York State Industrial Code.
Hossain submitted an attorney's affirmation in reply to the Kurzynowskis' opposition and three annexed exhibits labeled 1 through 3. Exhibit 1 and 2 are partial copies of a transcript of the deposition of defendant Mark Kurzynowski taken on March 10, 2010. Exhibit 3 is a copy of a document produced by the New York City Buildings Department.
The Kurzynowskis' motion papers consist of a notice of motion, their attorney's affirmation and eleven annexed exhibits labeled A through K. Exhibit A is a copy of the instant summons and complaint. Exhibit B is a copy of the Kurzynowskis' notice of appearance and verified answer. Exhibit C is a bill of particulars. Exhibit D is an expert witness list. Exhibit E is a copy of a certified transcript of Hossain's deposition taken on July 24, 2009. Exhibit F is a copy of a certified transcript of the deposition of Mark Kurzynowski taken on March 10, 2010. Exhibit G is a series of photographs. Exhibit H is a series of photographs. Exhibit I is a copy of an invoice. Exhibit J is a copy of a provision from the New York State Industrial Code. Exhibit K is an affidavit of Paul Angelides, a professional engineer.
Hossain opposes the Kurzynowskis' motion with an affirmation of his counsel and nine annexed exhibits labeled 1 through 9. Exhibit 1 is a copy of an ambulance report. Exhibit 2 is Hossain's affidavit. Exhibit 3 is a partial copy of a transcript of the deposition of Hossain taken on July 24, 2009. Exhibit 4 is a series of photographs. Exhibit 5 is an affidavit of non-party Iqbal Hossain. Exhibit 6 is a series of copies of documents from the New York City Buildings Department. Exhibit 7 is a partial copy of a transcript of Mark Kurzynowski's deposition taken on March 10, 2010. Exhibit 8 is a copy of a handwritten document. Exhibit 9 is an affidavit of Stuart Sokoloff, a professional engineer.
The Kurzynowskis submitted an attorney's affirmation in reply to Hossain's opposition.
LAW AND APPLICATION CPLR § 3212(b) provides in pertinent as follows: Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.
A motion made pursuant to CPLR § 3212 would require the annexing of pleadings under section 3212(b). "The pleadings" means "a complete set of the pleadings" Wider v. Heller , 24 AD3d 433 [2nd Dept. 2006]) or "all the pleadings" Welton v. Drobniki, 298 AD2d 757 [3rd Dept. 2002]).
The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective ( Matsyuk v. Konkalipos , 35 AD3d 675 [2nd Dept. 2006]; Wider v. Heller , 24 AD3d 433 [2nd Dept. 2006]).
As Hossain has failed to annex a copy of the Kurzynowskis' answer to the complaint to its motion papers, its motion filed under motion sequence number one is procedurally defective and is denied.
The court now turns to the Kurzynowskis' motion for summary judgment.
A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact ( Kolivas v. Kirchoff , 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; Napolitano v. Suffolk County Dept. Of Public Works , 65 AD3d 676 [2nd Dept. 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]). "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" ( See, Mennerich v. Esposito , 4 AD3d 399 [2nd Dept. 2004]).
Marek Kurzynowski testified to the following salient facts at his deposition. He and his wife own and reside in a two family house located at 79-28 69th Avenue, Middle Village, New York, where Hossain's accident occurred. They occupy the first floor and his father and cousin occupy the second.
Hossain testified that he was employed by City Builder, a general construction company, for ten to twelve days before his accident occurred. His first day at the job site at 79-28 69th Avenue, Middle Village, New York was on November 26, 2007. The accident took place the following day at approximately 1:30 p.m. On that date and time he had climbed up a ladder supplied to him by City Builder with the intention of working on the left second story window of the Kurzynowskis residence. He placed and extended the ladder himself. He then climbed up 14 or 15 steps when the base of the ladder slipped causing him to fall and injure himself. He further testified that the the Kurzynowskis were not at the job site on the day of his accident or the previous day.
Labor Law §§ 240 (1) and Labor Law § 241(6) contain identical language exempting from the statutes "owners of one and two-family dwellings who contract for but do not direct or control the work" ( compare Labor Law § 240 (1) with § 241(6) ( Chowdhury v. Rodriguez , 57 AD3d 121 [2nd Dept. 2008]).
In order for a defendant to receive the protection of the homeowners' exemption, the defendant must satisfy two prongs required by the statutes. First, the defendant must show that the work was conducted at a dwelling that is a residence for only one or two families (( Chowdhury v. Rodriguez , 57 AD3d 121 [2nd Dept. 2008] citing generally Mandelos v. Karavasidis, 86 NY2d 767, 768-769). The second requirement of the homeowners' exemption is that the Kurzynowskis "not direct or control the work" (Labor Law §§ 240 (1), 241(6) and ( Chowdhury v. Rodriguez , 57 AD3d 121 [2nd Dept. 2008]). The expressed and unambiguous language of both statutes focuses upon whether the Kurzynowskis supervised the methods and manner of the work ( Id.).
The Kurzynowskis have made a prima facie showing that they are exempt from the requirement of Labor Law §§ 240(1) and 241(6) through deposition testimony of the Hossain and Marek Kurzynowski. Their testimony demonstrates that Hossain was injured while performing work at the Kurzynowskis' two family residence. The Kurzynowskis did not supply the ladder which Hossain fell from and they did not direct or control the work being performed.
The burden now shifts to Hossain to raise a triable issue of fact as to whether property located at 79-28 69th Avenue in Queens was a one or two family dwelling and whether the work was directed or controlled by the Kurzynowskis. The only documents annexed to Hossain's affirmation in opposition to the Kurzynowskis' motion for summary judgment which contain sworn allegations of fact and are admissible are the affidavit of Hossain and the affidavit of Iqubal Hossain. The partial transcripts of the depositions of Marek Kurzynowski and Hossain are not admissible because they are not certified or signed by the deponent. As neither the affidavit of Hossain, nor the affidavit of Iqubal Hossain raises a triable issue of fact, the Kurzynowskis are entitled to summary judgment dismissing Hossain's cause of action based on violations of Labor Law §§ 240 (1) and 241(6).
Furthermore, to be held liable under Labor Law § 200 a defendant must have actually exercised supervision or control over the work performed at the site ( See, Cooper v. State, 72 AD3d 633 [2nd Dept. 2010] citing McLeod v. Corporation of Presideing Bishop of Church of Jesus Christ of Latter Day Sts. , 41 AD3d 796 [2nd Dept. 2007]). A defendant may meet its prima facie burden on a summary judgment motion by demonstrating that it did not so exercise supervision or control ( id.)
As the court has already noted, Hossain testified at his deposition that the owners of the subject premises were not present while work was being performed. Thus, through their presentation of Hossain's deposition testimony, the Kurzynowskis have also made a prima facie showing that they did not supervise or control the work being performed. They have therefore met their prima facie burden showing entitlement to judgment in their favor on Hossain's Labor Law § 200 claim and Hossain's opposition papers do not raise a triable issue of fact.
In conclusion, Hossain's motion for summary judgment in his favor on liability against the Kurzynowskis on his Labor Law § 240 (1) claim is denied.
The Kurzynowskis motion for summary judgment in their favor on liability on the Labor Law §§ 240(1), 241(6), and 200 claims is granted and the complaint is dismissed. The foregoing constitutes the decision and order of the court.