Opinion
Index No. 528276/2021 Seqs. Nos. 002 003
09-17-2024
Jin Hui Wu, Plaintiff, v. Ching Hei Cheng and Mei Cheng, Defendants.
Unpublished Opinion
DECISION/ORDER
DEVIN P. COHEN JUSTICE OF THE SUPREME COURT
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion
| Papers | Numbered |
| Notice of Motion and Affidavits Annexed | 1-2 |
| Order to Show Cause and Affidavits Annexed | ___ |
| Answering Affidavits | 2-3 |
| Replying Affidavits | 4 |
| Exhibits | Var |
| Other | ___ |
Upon the foregoing papers, defendants' motion for summary judgment (Seq. 002) and plaintiff's cross-motion for summary judgment (Seq. 003) are decided as follows:
Introduction
Plaintiff commenced this action to recover for damages he claims to have sustained on July 21. 2021, when he fell while descending an extension ladder located at 1867 65th Street, Brooklyn, NY (the premises). Defendants Ching Hei Cheng and Mei Cheng admit ownership of the premises. Defendants further admit that the work being performed at the time of the accident was renovation work. Both parties now move for summary judgment.
Factual Background
Plaintiff testified that on the date of his alleged accident, he was employed by YX Construction and was working on interior renovations at the premises (Wu first BBT at 38), Plaintiff further testified that he believed the second floor was being converted into "hotels," or rental units for five to six families (id. at 36). This belief was based on what he was told by his co-workers (id. at 37-39)and on the installation of multiple electric boxes on the second floor of the premises (id. at 45).
Plaintiff testified that at the time of his accident he was descending the extension ladder that was serving as temporary replacement for the stairs between the first floor and the second floor (id. at 111-112). The two feet at the bottom of the ladder were placed on two wooden boards, with each foot resting on a different board (id. at 115-116) because there was an opening in the floor where the ladder needed to go (id. at 117-118), The record is unclear as to who placed the boards across the opening in the floor. At one point, plaintiff speaks of the ladder as though he found it already erected (id. at 108) and at another point the plaintiff seems to suggest that he placed the wooden boards under the ladder as a platform himself (id. at 117). There is no testimony as to who, if anyone, instructed plaintiff to construct this makeshift platform if he did actually place them himself. Plaintiff testified that the boards were not stabilized (id. at 124) and that while descending the ladder, the ladder shook and then fell down into the basement (id. at 123), The plaintiff remained on the ladder as it fell and was still on the ladder when the feet of the ladder struck the basement floor (id. at 126).
Defendants claim that the premises was not being converted into a multi-family dwelling, but instead that the bottom two floors were to be occupied by the owners and the top floor was to be rented to single family (C. Cheng first EBT at 35-36; 217-218), During the renovations, defendants lived in their primary residence in Kentucky (id. at 228). When renovations were completed in December, 2021, defendants contend they leased the second floor to a single family, as indicated by the affidavit of tenant Bulmaro Dominguez. The defendants testified that they moved into the lower two; floors in August 2022, when the sale of their Chinese restaurant in Kentucky was finalized in July 2022 (C. Cheng first EBT at 24, 44).
Analysis:
On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v Citibank, 100 N.Y.2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
Labor Law §§ 240 (1) and 241 (6)
"Labor Law § § 240 (1) and 241 (6) contain identical provisions expressly exempting owners of one- and two-family dwellings who contract for but do not direct or control the work. In order to satisfy its prima facie burden On the basis of these exemptions, a moving defendant is required to demonstrate not only that their house was a one- or two-family residence, but also, that they did not direct or control the work being performed" (Nucci v County of Suffolk, 204 A.D.3d 817, 819 [2d Dept 2022] [internal citations omitted]).
Here, defendants argue that the premises was intended to be a two-family dwelling, that there was never a commercial purpose nor an intended commercial purpose, and therefore the homeowner's exemption to statutory liability under the Labor Law' applies. However, plaintiff has raised .a triable issue of fact as to whether there was an intended commercial purpose for the renovation work. Plaintiff claims that he was told the renovation was for "multi-family rentals." While tills testimony is hearsay, and would be insufficient alone to resist summitry judgment (King v North Shore Long Island Jewish Hosp, at Plainview, 127 A.D.3d 928 [2d Dept 2015]), plaintiff further testified that his observation of the renovations (including the placement and number of electrical boxes, kitchens, and bathrooms) led him to believe that the premises was being converted into a multi-family commercial dwelling based on his previous experience with similar renovations. Plaintiff also provides an affidavit claiming that he had been employed by YX Construction for five years and that this type of conversion Was the kind of work in which his employer specialized (Wu aff. at ¶ 4).
Plaintiff cross-moved for summary judgment on his Labor Law §§ 240 (1) and 241 (6). As an initial matter, plaintiffs motion at first appears untimely as it was filed seventy-eight days after the plaintiff filed the note of issue. However, defendants include arguments in their own motion that the plaintiff was the sole proximate cause of the accident. Also, plaintiff makes allegations that defendant gave instructions to plaintiff s boss (Wu aff. at ¶ 13-14). These arguments raise issues about how the accident occurred and do not merely concern status of the parties. Therefore, plaintiff s cross-motion implicates "nearly identical grounds" and can be considered on the merits (see Lennard v Khan, 69 A.D.3d 812 [2d Dept 2010]).
That said, there are material questions of fact about, inter alia, whether the homeowners' exemption applies considering defendants' potentially commercial intended use, whether Mr. Cheng was present on the site and supervised the work, and how the plaintiff's accident occurred. Moreover, there are questions concerning where the ladder came from, who decided to place the ladder on two wooden boards, whether there were any other ladders or means of elevation available, and who actually erected the ladder. Accordingly, since the court must view the evidence in a light most favorable to the non-moving party with respect to each motion, neither party is entitled to summary judgment on the Labor Law §§ 240 (1) or 241 (6) claims. The court need not reach the remainder of these arguments.
Labor Law § 200Defendants also seek summary judgment on plaintiffs Labor Law' § 200 claim,
Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work" (Pacheco v Smith, 128 A.D.3d 926, 926 [2d Dept 2015]). Thus, claims: for negligence and for violations of Labor Law § 200 are evaluated using the same negligence analysis (Ortega v Puccia, 57 A.D.3d 54,61 [2d Dept 2008]). "[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work. Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200. A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the: responsibility for the manner in which the work is performed" (id. at [internal citations omitted]).
Defendants contend that they were living in Kentucky at the time of the renovations and were not present at the site. Therefore, defendants claim, they only had general authority to oversee the work. Defendants also rely on plaintiff's deposition testimony that he did not know who the owner was and said, 'T cannot recognize the owner" (Wu first EBT at 35).
Defendants also provide an affidavit from Ching Hei Cheng's father, Sze Yuk Cheng, who claims to have visited the premises once or twice a month to check the progress of the work and claims that no one was residing at the premises prior to completion of renovations (Sze Yuk Cheng aff. at ¶¶ 1, 2). However, this: affidavit is inadmissible; it neither provides the: original-language text (Chinese) of the affidavit nor sufficiently identifies and supplies the qualifications for the purported translator (CPLR 2101 [b]; see Welenc v Bd. of Directors of Polish and Slavic Fed. Credit Union, 160 A.D.3d 683, 684 [2d Dept 2018]). Moreover, it is unclear how the affiants confirmed the contents of the English language affidavit were accurate when they required a translator in order to create the affidavits. In any event, the affidavit is not relevant for bolstering defendants claims as it aligns with defendants testimony that they were out of state. However, the affidavit does raise questions as to whether Sze Yuk Cheng was an agent of the owners and whether he had authority to direct the contractor's work, which militates against granting defendants' motion for summary judgment.
In opposition to tire motion, plaintiff provides an affidavit claiming that, after his deposition testimony claiming that he did not recognize the name of the owner, plaintiff s counsel showed plaintiff a photograph of defendant, Mr. Cheng (Wu affi at ¶ 12). These photographs are not a part of the record. However, plaintiff further claims that, after viewing the photographs, he recognized Ching Hei Cheng "as being involved in all the rooming hotels that I worked for on YX Construction," and claims that Mr, Cheng gave instructions to plaintiffs boss. An Zheng (id. at ¶¶ 13-14). Plaintiffs affidavit is not inconsistent with his deposition testimony-at his deposition, plaintiff was not shown any photographs and simply said that he did not know the name or identity of the Owner It does not necessarily follow that plaintiff could not identify Mr. Cheng after being shown a photograph. Therefore, the court is faced with a credibility determination in order to resolve, inter alia, the issue of whether Mr. Cheng was present at the site and gave instructions to Mr. Zheng. Such a credibility determination is inappropriate on a motion for summary judgment (Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]), and must be resolved by a jury.
Conclusion
Defendants' motion for summary judgment (Seq. 002) is denied.
Plaintiff s cross-motion for summary judgment (Seq. 003) is denied.
This constitutes the decision of the court.