Opinion
Index 55105/2017
04-04-2019
Unpublished Opinion
DECISION & ORDER
Helen M. Blackwood Judge
The following papers (e-filed documents 24-36, 38-68, 70) were read on the E-filed motion by SOKOL BIBERAJ and TRANDOLFILJA BIBERAJ, for an order granting summary judgment dismissing the complaint filed against them (motion sequence 1); and on the E-filed cross-motion by ARTURO LOPEZ and ARTURO ROOFING for an order granting summary judgment dismissing the complaint fded against them (motion sequence 2):
Papers
Notice of Motion. Affirmation in Support (Exhibits A-J) (motion sequence 1)
Notice of Cross-Motion, Affirmation in Support (Exhibits A-K) (motion sequence 2)
Affirmation in Opposition to Cross-Motion (motion sequence 2)
Affirmation in Opposition, Memorandum of Law (Exhibits 1-7) (motion sequence 1)
Affirmation in Opposition (Exhibits 1-7) (motion sequence 2)
Affirmation in Reply (motion sequence 1)
Upon reading ihe foregoing papers it is
ORDERED the branch of the motion which seeks an order granting summary judgment dismissing all causes of action and cross-claims against SOKOL BIBERAJ and TRANDOLFIUA BIBERAJ, is denied, except to the extent listed below; and it is further
ORDERED the branch of the motion which seeks an order granting summary judgment dismissing all causes of action and cross-claims against ARTURO LOPEZ and ARTURO ROOFING, is denied, except to the extent listed below; and it is further
ORDERED that the branches of the motions which seek the dismissal of any causes of action Hied pursuant to section 241(6) of the Labor Law insofar as they are based on violations of New York Industrial Code Regulations Sections 12 NYCRR 23-1.7(d), 12 NYCRR 23-1.18(a)(2), 12 NYCRR 23-1.18(a)(3), 12 NYCRR 23-L20(b), 12 NYCRR 23-3.3(k)(i) and 12 NYCRR 23-3.3(k)(ii) against SOKOL BIBERAJ, TRANDOLFIUA BIBERAJ, ARTURO LOPEZ and ARTURO ROOFING are granted; and it is further
ORDERED the parties are directed to appear on April 30, 2019, at 9:15 am in the Settlement Conference Part, Courtroom 1600, Westchester County Supreme Court, 111 Dr. Martin Luther King Boulevard, White Plains, New York, prepared to conduct a settlement conference.
On April 14, 2017, JAMES MORRONE ("plaintiff") fded a summons and verified complaint against SOKOL BIBERAJ and TRANDOLFILJA BIBERAJ ("Biberaj defendants") and ARTURO LOPEZ and ARTURO ROOFING ("Arluro defendants") for injuries allegedly sustained by the plaintiff on or about May 16, 2016, at 92 Maple Avenue, Dobbs Ferry, New York (the "premises"), a two-family home owned by the Biberaj defendants. On May 1, 2017, the plaintiff filed an amended summons and complaint. On May 17, 2017, the Biberaj defendants filed an answer, which included sixteen affirmative defenses. On June 30, 2017, the Arturo defendants filed an answer, also containing sixteen affirmative defenses.
Specifically, the plaintiff alleges that while supervising masonry work being done at the premises, owned and lived in by the Bibcraj defendants, the plaintiff stepped on a nail, which caused a puncture wound on his foot that became infected. As a result, the plaintiff developed Osteomyelitis, a bone infection, and required several surgeries to remove portions of the bone and flesh of his foot. The plaintiff alleges that the full extent of his injuries remain unknown. At the time of his injuries, the plaintiff alleges that the Arturo defendants were responsible for replacing the roof at the premises and had been demolishing the old one, discarding the debris on the ground surrounding the premises. The plaintiff alleges that the nail which caused his injuries was part of that debris. The verified complaint alleges negligence and violations of sections 200 and 241(6) of the Labor Law ("LL").
Discovery having been completed and a Note of Issue having been filed on August 21, 2018, all defendants now move for summary judgment.
The Biberaj defendants move for summary judgment, arguing that they are protected by the "homeowner exemption" incorporated into LL §241(6). That section of the Labor Law insulates "owners of one and two-family dwellings who contract for but do not direct or control the work" from liability (LL §240[6]). The Biberaj defendants contend that they satisfy both elements of the exemption - they own a one or two family dwelling and while they contracted with people to do the work in their home, they did not control the work being done. They rely on the deposition testimony of both Sokol and Trandolfilja Biberaj to support their contention. Specifically, the Biberaj defendants both testified that Sokol hired the Arturo defendants to replace their roof and had no supervisory control over the project. They indicated that although they would walk through the worksite to see how the work was progressing, they never directed the technical manner in which any of the work was to be done.
Similarly, the Biberaj defendants contend that the plaintiff cannot sustain the cause of action under LL §200, the codification of common law negligence, since they, as owners of the property, exercised no supervisory direction or control over the work being done. As such, they argue, they cannot be liable for the plaintiffs accident due to the alleged defective or dangerous condition, nor did they have any notice, actual or constructive, of the dangerous condition which caused the plaintiffs injury. Finally, the Biberaj defendants argue that the plaintiff should not be protected by the Labor Law, since it was actually his son that was doing the masonry work at the premises, not him.
The Arturo defendants move for summary judgment, arguing, first, that there is no entity called "Arturo Roofing". Furthermore, Arturo Lopez urges the court to find that he was not actually the contractor at the premises, nor did he do any work there. Simply, he was responsible for finding men, or "day laborers," to do the roofing work for the Biberaj defendants. Therefore, he cannot be held liable for any injuries sustained at the premises while the work was being done.
The plaintiff opposes both motions, arguing that he is protected by the Labor Law since he was supervising the masonry work being done there. Additionally, he argues that the Biberaj defendants were directly responsible for the roofing project at the premises. Such is evident by the facts that the Biberaj defendants took it upon themselves to select the materials to be used and purchase them, ordered the dumpster in which to discard the debris, placed the dumpster, and cleaned up the worksite at the end of the day. Finally, the plaintiff points out that Mrs. Biberaj called him two days before the accident to complain about the debris scattered all over her property as proof of Ihe Biberaj defendants' notice of the dangerous condition.
As to the motion made by the Biberaj defendants, the proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital. 68 N.Y.2d 320 [1986].) Thus, the moving party must tender sufficient evidence to demonstrate, as a matter of law, the absence of a material issue of tact. Once that initial burden has been satisfied, the burden shifts to the opponent, who must now go forward and produce sufficient evidence to establish the existence of a triable issue of fact. The court's function on a motion for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos. 46 N.Y.2d 223 [1978].) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 8 N.Y.2d 8 [1960]).
As a preliminary matter, the court finds that the plaintiff has established genuine issues of fact as to whether he was more than just a person "providing casual, uncompensated assistance" to the Biberaj defendants in the masonry project (Stringer v. Musacchia, 11 N.Y.3d 212, 216 [2008]). Rather, there is evidence suggesting that he was there to supervise the workers doing the masonry work. Therefore, the defendants' arguments that the plaintiff is not covered by the protections of the Labor Law is without merit.
Labor Law § 241(6) imposes a nondelegable duty upon owners, contractors and their agents to provide reasonable and adequate protection and safety to construction workers (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 [1993]). In order to impose liability under this section, the plaintiff must demonstrate that there existed a violation of a specific regulatory provision of the Industrial Code which resulted in injury to the plaintiff. If there was a breach of such a regulation, the general contractor and owner are vicariously liable for the resulting injury without regard to their fault (see Armer v. General Elec. Co., 241 A.D.2d 581 [3d Dept. 1997], leave denied, 90 N.Y.2d 812 [1997]). However, a regulation which merely sets forth general safety standards, and thus is simply a reiteration of the common law, does not give rise to a nondelegable duty under this section (see, Abreu v. Manhattan Plaza Associates, 214 A.D.2d 526 [2d Dept. 1995]). Therefore, the court finds that all defendants have established their entitlement to summary judgment on the causes of action pursuant to section 241(6) of the Labor Law insofar as they are based on violations of New York Industrial Code Regulations Sections 12 NYCRR 23-1.7(d), 12 NYCRR 23-1.18(a)(2), 12 NYCRR 23-1.18(a)(3), 12 NYCRR 23-1, 20(b), I2 NYCRR 23-3.3(k)(i) and 12 NYCRR 23-3.3(k)(ii). The plaintiff has failed to overcome that showing by failing to oppose that branch of the motions. Therefore, each of those causes of action are dismissed.
As to the remaining causes of action pursuant to LL§241(6), the court recognizes that the homeowner's exemption contained in the law "was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability" (Acosta v. Hadjigavriel. 18 A.D.3d 406, 406 [2d Dept. 2005J). While the Bibcraj defendants have established their entitlement to summary judgement on these causes of action based upon their lack of supervision of the worksite, the plaintiff has overcome this burden and established materials issues of fact as to whether the Biberaj defendants "exercised the requisite degree of direction and control" over the work being done by the plaintiff (Acosta v. Hadjigavriel 18 A.D.3d at 407; see also Szczepanski v. Dandrea Const. Corp. 90 A, D.3d 642 [2d Dept. 2001] (Appellate Division upheld Supreme Court's denial of summary judgment motion to dismiss LL §241(6) cause of action since triable issue of fact existed as to applicability of homeowner's exception when homeowner was also general contractor for the job); Rodriguez v. Gany, 82 A.D.3d 863 [2d Dept. 2001] (denial of summary judgment motion affirmed when question of fact existed as to whether homeowner's exemption applied based upon evidence that homeowner directed subcontractor to move duct work during project).
Similarly, the court finds that the plaintiff has established genuine issues of fact with respect to the LL §§200 cause of action, which is a codification of the common law duty of an owner or employer to provide employees with a safe place to work (see Jock v. Fien, 80 N.Y.2d 965 [1992].) Liability under LL §200 can not be imposed unless a plaintiff establishes that the owner or general contractor supervised or controlled the work performed or had actual or constructive notice of the unsafe condition which precipitated plaintiffs injury (see, Comes v. New York State Elec. & Gas Corp.. 82 N.Y.2d 876 [1993J; Murray v. South End Improvement Corp., 263 A.D.2d 577 [3d Dept. 1999]; Butigian v. Port Authority of New York and New Jersey. 266 A.D.2d 133 [1st Dept. 1999]). Once again, this issue of fact is based upon the Biberaj defendants' alleged "authority to exercise supervision and control over the work" (Rojas v. Schwartz, 74 A.D.3d 1046, 1046 [2d Dept. 2010]; citing Gallello v. MARJ Distribs.. Inc., 50 A.D.3d 734, 735 [2d Dept. 2008]). Furthermore, the plaintiff has established that there is a triable issue of fact as to whether or not the Biberaj defendants had notice of the alleged dangerous condition that caused his accident, given the telephone call made to the plaintiff by Mrs. Biberaj regarding the condition of the worksite just days before the accident.
As to the summary judgment motion filed by the Arturo defendants, the court finds that the plaintiff has established material issues of fact as to whether there is actually an entity known as "Arturo Roofing" based upon the deposition testimony tiiat that was the name of the contractor on the building permit application and that the defendant, Arturo Lopez, had business cards with this company name on them. Additionally, there are questions of fact as to whether or not the Arturo defendants served as the contractor for the project at the premises, given the evidence that Sokol Biberaj hired Mr. Lopez, who he knew to be a roofer, to repair his roof. Additionally, the deposition testimony of Sokol Biberaj indicates that Mr. Lopez would come to the worksite to observe his workers' progress, and that sometimes, he paid Mr. Lopez directly for the work and other times, if Mr. Lopez was not present at the worksite, Mr. Biberaj would pay the workers so that they could give the money to Mr. Lopez. Therefore, since there are issues of fact as to whether the Arturo defendants served as the contractor for the roofing job and were responsible for the work that created the dangerous condition that caused the plaintiffs injury, the motion for summary judgment is denied (see Rizzuto v. LA. Wenger Contracting Co., Inc., 91 N.Y.2d 343 [1998]).
For all of these reasons, the motions for summary judgment are denied, except to the extent indicated above.
This constitutes the decision, and order of this Court.