Opinion
58364/2017
05-22-2019
Enrique MUNOZ, Plaintiff, v. Julia R. STEDMAN, 319 E. 50th Owners Corp., 319 East 50th Street Associates and 319 East50 Realty LLC., Defendants.
The Pagan Law Firm, Attorney for plaintiff, 805 Third Ave. Suite 1205, New York, NY 10022 Law office of Thomas K. Moore., Attorneys for defendants 319 East 50 St. Owners Corp., 701 Westchester Avenue, suite 101W, White Plains, NY 10604 Gallo Vitucci Klar LLP, Attorneys for 319 East 50 Street Associates and 319 East 50 Realty LLC, 90 Broad Street, 12th Floor, New York, NY 10004
The Pagan Law Firm, Attorney for plaintiff, 805 Third Ave. Suite 1205, New York, NY 10022
Law office of Thomas K. Moore., Attorneys for defendants 319 East 50 St. Owners Corp., 701 Westchester Avenue, suite 101W, White Plains, NY 10604
Gallo Vitucci Klar LLP, Attorneys for 319 East 50 Street Associates and 319 East 50 Realty LLC, 90 Broad Street, 12th Floor, New York, NY 10004
Lawrence H. Ecker, J.
The following papers were considered on the motion of defendants JULIA R. STEDMAN, and 319 E. 50th OWNERS CORP. ("Owners Corp.") [Mot. Seq. 1], made pursuant to CPLR 3212 for an order granting summary judgment dismissal of the complaint, as against plaintiff ENRIQUE MUNOZ ("plaintiff"):
PAPERS
Notice of Motion, Affirmation, Exhibits A-Q
Affirmation in Opposition, Exhibits A-C
Court rules direct plaintiff to use numbered exhibit tabs.
Affirmation in Reply
Upon consideration of the foregoing papers, the court determines as follows:
Plaintiff, a carpenter, is the employee of non-party Anthony Loddo Construction Co. ("Loddo"). Plaintiff alleges that he sustained physical injuries to his left hand on July 5, 2016, while assigned by his employer to perform renovation work at a cooperative apartment in a building located at 319 East 50th Street, New York, NY ("the Building").The work was being done in apartment 3F ("the Apartment"). Defendant Julia R. Stedman ("Stedman") was the shareholder tenant of the Apartment and the Building was owned by Owners Corp.
On the day of the accident, plaintiff was using a power driven table saw.
At some point, Stedman asked plaintiff to do the sawing in the Building basement, and the Building superintendent granted plaintiff permission to use the basement. Neither Stedman nor the Building superintendent provided plaintiff with any tools or instructions on the work.
The saw plaintiff used, supplied to him by Loddo, did not have a blade cover, nor did he have a stick to guide the wood through the saw. Plaintiff was not wearing safety equipment.
The basement floor was wet. Plaintiff stated that, in order to avoid the possibility of electrical shock, he placed a piece of cardboard that he found in the basement over the wet area where he was working, and then placed a tarp he found in the basement over the cardboard. He did not otherwise secure the saw. As plaintiff was cutting a piece of wood, the saw moved, causing injuries to plaintiff's hand.
Plaintiff commenced this action on May 31, 2017, alleging two causes of action: negligence and Labor Law §§ 200, 240 and 241 and the Industrial Code. Defendants answered and it is noted that Owners Corp. alleged a cross-claim against Stedman for common law and contractual indemnification. Discovery was completed and a note of issue was filed on November 13, 2018. Defendants brought the present motion for summary judgment on December 27, 2018.
CPLR § 3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case ( Winegrad v. New York University Medical Center , 64 NY2d 851, 853 [1985] ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). Put another way, in order to obtain summary judgment, there must be no triable issue of fact presented, even the color of a triable issue of fact forecloses the remedy ( In re Cuttitto Family Trust , 10 AD3d 656 [2d Dept 2004] ; LNL Constr. v. MTF Indus. , 190 AD2d 714, 715 [2d Dept 1993] ). If a party makes a prima facie showing of its entitlement to summary judgment, the opposing party bears the burden of establishing the existence of a triable issue of fact (Zuckerman v. City of New York, supra ; Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986] ).
It is well settled that summary judgment is a drastic remedy not to be granted where there is any doubt about the existence of a triable issue of fact. It is nevertheless an appropriate tool to weed out meritless claims. In Andre v. Pomeroy (35 NY2d 361, 364 [1974] ), the Court stated:
"[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law ... when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated."
The complaint in this matter alleges negligence and violations of Labor Law § 240(1), § 241(6), § 200 and the Industrial Code.
Plaintiff concedes in his submissions that this is not an elevation related case, and that, therefore, § 240(1) does not apply. As such, the claim based on § 240(1) is dismissed as against defendants.
LABOR LAW § 241(6) - Stedman :
Stedman alleges that the Apartment is subject to the single family home exemption under Labor Law § 241(6). Stedman further asserts that she did not direct, control or supervise the means, methods and manner in which plaintiff performed his work, and did not have authority to do so. Simply stated, any input she had into the project was purely aesthetic.
Plaintiff counters that there are issues of fact that preclude a finding that the single family exemption in Labor Law § 241(6) applies to Stedman. Specifically, plaintiff claims that unresolved factual questions exist as to whether Stedman: was an owner of the Apartment or an owner of the shares of the corporation allocated to the Apartment; was responsible for plaintiff's injuries due to the "Apartment Decorating Agreement"; supervised or controlled the renovation work; and failed to provide plaintiff with safety equipment.
Labor Law § 240(1) and § 241 each impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities ( Bombard v. Pruiksma , 110 AD3d 1304, 1305 [3d Dept 2013] ). The Legislature has carved out an exemption from liability under both Labor Law §§ 240 (1) and 241, however, for owners of one- and two-family dwellings who contract for but do not direct or control the work (Bombard v. Pruiksma , supra ; Bartoo v. Buell , 87 NY2d 362, 367 [1996] ; Fawcett v. Stearns , 142 AD3d 1377 [4th Dept 2016] ; Byrd v. Roneker , 90 AD3d 1648, 1649 [4th Dept 2011] ; Dineen v. Rechichi , 70 AD3d 81, 83 [4th Dept 2009] ; Berner v. Town of Cheektowaga , 151 AD3d 1636 [4th Dept 2017] ).
The homeowner exemption was added to Labor Law § 240 (1) and § 241 in 1980, and was intended by the Legislature to shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law, and reflects the legislative determination that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection (Fawcett v. Stearns, supra; Dineen v. Rechichi , supra ; Bartoo v. Buell , supra ). "As stated by the Law Revision Commission [at the time], ‘an exemption for one and two family dwelling owners is needed’ because ‘the theory of dominance of the owner over the subcontractor or worker breaks down at this level’ (Recommendation of NY Law Rev Commn, reprinted in 1980 McKinney's Session Laws of NY, at 1659)" (Bartoo v. Buell, supra ).
"The exception was [also] enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by section 240(1)" ( Lombardi v. Stout , 80 NY2d 290, 296 [1992] ). As stated in the Memorandum of the Law Revision Commission in support of the amendments, it "is unrealistic to expect the owner of a one[-] or two[-]family dwelling to realize, understand and insure against the responsibility sections 240 and 241 now placed upon him [or her] ... [S]uch owners ought to be secure in the reasonable assumption that if they have no direction or control over the work, they cannot be held strictly liable" (Mem of Law Rev Commn, Bill Jacket, L 1980, ch 670)." (Dineen v. Rechichi, supra ). Mindful of this history and remedial purpose, the courts have avoided an overly rigid interpretation of the homeowner exemption, and have employed a flexible "site and purpose" test to determine if the exception applies (Bartoo v. Buell, supra ; Nicholas v. Phillips , 151 AD3d 731 [2d Dept 2017] ).
The court finds that Stedman, a shareholder of the corporation, demonstrates a prima facie entitlement to summary judgment as a matter of law by submitting records and the parties' deposition testimony that prove that she falls under the exception contained in the statute for the "owners of one and two-family dwellings who contract for but do not direct or control the work" ( Campos v. 68 East 86th Street Owners Corp. , 117 AD3d 593 [1st Dept 2014] ; see Maciejewski v. 975 Park Ave. Corp. , 37 AD3d 773 [2d Dept 2007] ).
In opposition, plaintiff fails to raise a triable issue of fact. Certainly, the contentions that Stedman and plaintiff discussed the placement, or re-placement of an installation in the kitchen, and Stedman asked plaintiff to do the wood work in the basement, do not amount to the level of control necessary to warrant the imposition of liability under Labor Law § 241(6) (see Olarte v. Morgan , 148 AD3d 918 [2d Dept 2017] ; Decavallas v. Pappantoniou , 300 AD2d 617 [2d Dept 2002] ; Ruiz v. Walker , 93 AD3d 2012 [2d Dept 2012]).
LABOR LAW § 241(6) - Owners Corp.:
Plaintiff concedes that Owners Corp. is an owner within the meaning of the Labor Law. In addition, Owners Corp. demonstrates by the submitted records and the parties' deposition testimony that it did not direct or control plaintiff's work (Campos v. 68 East 86th Street Owners Corp. , supra ).The fact that the Building superintendent granted plaintiff access to the basement, without more, is inadequate to create a question of fact as to the issue. As such, the cause of action based on Labor § 241(6) against Owners Corp. is dismissed because defendant falls within the exception contained in the statute for the "owners of one and two-family dwellings who contract for but do not direct or control the work" (Campos v. 68 East 86th Street Owners Corp. , supra ).
In order to establish liability under Labor Law § 241(6), a plaintiff must demonstrate that defendant's violation of a specific applicable rule or regulation, promulgated by the Commissioner of the Department of Labor, was a proximate cause of the accident (Brown v. Brause Plaza, LLC., supra; Mercado v. TPT Brooklyn Assoc., LLC , 38 AD3d 732, 733 [2d Dept 2007]; Aragona v. State of New York, 147AD3d 808 [2d Dept 2017] ). In the instant matter, plaintiff has predicated the section 241 (6) cause of action upon alleged violation of the Industrial Code, 12 NYCRR 23-1.12(c). In light of this court's finding that 241(6) is inapplicable to defendants, the court need not determine whether the relevant industrial code section was violated (Ortega v. Puccia , 57 AD3d 54 [2d Dept 2008] ).
LABOR LAW § 200 and COMMON LAW NEGLIGENCE- Stedman and Owners Corp.:
Labor Law § 200 codified the common-law duty of an owner or employer to provide employees with a safe place to work ( Brown v. Brause Plaza, LLC. , 19 AD3d 626 [2d Dept 2005] ; see DeBlase v. Herbert Constr. Co. , 5 AD3d 624 [2d Dept 2004] ). The statute applies to owners and contractors who exercise control or supervision over the work being performed, or who have either created a dangerous condition, or had actual or constructive notice of such condition (see Brown v. Brause Plaza, LLC., supra ; Lombardi v. Stout , 80 NY2d 290, 294-295 [1992] ; Gargan v. Palatella Saros Builders Group, Inc. , 162 AD3d 988 [2d Dept 2018] ). Unlike Labor Law § 240 and § 241, § 200 does not contain any single- and two-family homeowners' exemption. It makes sense that since homeowners may be held liable in ordinary negligence, the statute's codification of the common law cannot logically exempt one- and two-family homeowners from its scope ( Ortega v. Puccia , 57 AD3d 54 [2d Dept. 2008] ).
Stedman
As held previously herein, plaintiff fails to demonstrate that Stedman exercised control or supervision over the work being performed. Furthermore, there is no allegation or evidence that Stedman either created a dangerous condition, or had actual or constructive notice of a dangerous condition that caused the injury ( DiMaggio v. Cataletto , 117 AD3d 984, 986 [2d Dept 2017] ; Rashid v. Hartke , 171 AD3d 1226 [2d Dept 2019] ).Certainly there is no proof that plaintiff's conduct in the use of the saw was in any manner attributable to Stedman (see Turgeon v. Vassar College , 2019 NY Slip. Op. 03838 [2d Dept 2019] ). Thus, she cannot be held responsible for plaintiff's injuries pursuant to Labor Law § 200, or general negligence principles (see Bombard v. Pruiksma, supra ).
Owners Corp .
Likewise, there is no evidence that Owners Corp. controlled or supervised the plaintiff's work in such a manner that liability under Labor Law § 200 or negligence attached (see DiMaggio v. Cataletto , supra ; Kusayev v. Sussex Apartments Associates , LLC. , 163 AD3d 943 [2d Dept 2018] ). To the extent that plaintiff asserts that the Owners Corp. employees knowingly permitted him to do his sawing in the area of the basement where it was wet, there is no proof that defendant created a dangerous condition that caused plaintiff's injury, or had actual or constructive notice of such condition. In any event, the fact that there was water in the basement is irrelevant, as plaintiff's injury was not caused by the water, but instead was the direct result of plaintiff's manipulation and use of the saw (see Turgeon v. Vassar College , supra ; Kusayev v. Sussex Apartments Associates , LLC. , supra ).The motions for summary judgment against the plaintiff dismissing the Labor Law § 200 and common-law negligence causes of action must be granted (see Turgeon v. Vassar College , supra ).
The Apartment Decorating Agreement
As to the "Apartment Decorating Agreement," relied upon plaintiff as the means of ascribing liability to Stedman or Owners Corp., the court finds that this agreement is merely intended to enure to the benefit of Owners Corp., which is entitled to indemnification from Stedman for the decoration work she contracted to be performed by Loddo and its employees. In fact, Loddo signed a separate agreement with Owner Corp. acknowledging the Apartment Decorating Agreement, and setting forth Loddo's obligations to Owner Corp. for the conduct of its employees, and to indemnify Owner Corp. on account thereof. Thus, Owner Corp. was shielded by Loddo for any claim asserted against it as to which it was entitled to indemnification from Loddo. Since it is Loddo's employee, the plaintiff, who has suffered the injuries, based upon the court's findings herein, plaintiff is entitled only to the statutory benefits provided to him by virtue of his employment. Neither agreement mentioned herein, under these facts, opens the door to the finding of liability sought by plaintiff.
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is hereby denied. Accordingly, it is hereby
ORDERED that the motion of defendants of JULIA R. STEDMAN, and 319 E. 50th OWNERS CORP., made pursuant to CPLR 3212, for an order granting dismissal of the complaint, as against plaintiff ENRIQUE MUNOZ, is granted, and the complaint, cross-claim and action are dismissed.
The foregoing constitutes the Decision/Order of the court.