Opinion
No. 20367/10.
2013-02-5
Steve NICOLETTI, Plaintiff, v. Susan IRACANE,, Defendant.
Emil J. Sanchez, Esq., Friedman, Khafif & Sanchez, LLP, Brooklyn, NY, for Plaintiff. Sheryl A. Sanford, Esq., Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY, for Defendant.
Emil J. Sanchez, Esq., Friedman, Khafif & Sanchez, LLP, Brooklyn, NY, for Plaintiff. Sheryl A. Sanford, Esq., Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY, for Defendant.
DAVID SCHMIDT, J.
The following papers numbered 1 to 6 read herein:
+-----------------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------------------------------+----------¦ ¦Notice of Motion/Order to Show Cause/ Petition/Cross Motion and ¦1–2 ¦ ¦Affidavits (Affirmations) Annexed ¦ ¦ +------------------------------------------------------------------+----------¦ ¦Opposing Affidavits (Affirmations) ¦3–4 ¦ +------------------------------------------------------------------+----------¦ ¦Affidavits (Affirmations) ¦5 ¦ +------------------------------------------------------------------+----------¦ ¦Photograph of the Accident Scene ¦6 ¦ +-----------------------------------------------------------------------------+
Plaintiff Steve Nicoletti (plaintiff) commenced this action to recover damages for injuries he sustained when he fell through a rear deck of a single-family owner-occupied house of defendant Susan Iracane (defendant). Defendant had hired plaintiff's brother-in-law, who was doing business as North American Builders, to (a) supply and install a new complete Trex deck of the same size as her existing wooden deck, (b) supply and install new PVC railings around the deck, (c) “screw [the] deck in,” and (d) remove all resulting debris, pursuant to a contract, dated [Slip Op. 2]July 12, 2010. On the same day on which the parties signed the contract and defendant paid a deposit, plaintiff and his brother-in-law inspected and measured the existing wooden deck. Plaintiff's brother-in-law subcontracted to plaintiff the actual work to be performed. A week later, in the morning of July 19, 2010, plaintiff and his helper visited the premises to determine the scope of their work. They entered defendant's house, walked through the rear kitchen, and stepped outside the house and onto the wooden deck. As they exited the kitchen and stepped onto the deck's surface, they turned to their left and made a few steps forward when, without any creaking or other warning, the deck's structure collapsed under their weight and they fell to the ground below. Although the deck's surface was elevated about 5 feet off the ground, plaintiff and his helper fell lower (or about 12 feet) when they landed inside the concrete stairwell that led to the basement. Plaintiff, then 52 years of age, was injured, but his young helper, who formerly played high school football, was not.
“Trex” is a trade name of a construction product composed of wood and plastic fibers.
The facts, as gleaned from documents and deposition transcripts, are viewed, for the purpose of the instant motion for summary judgment, in the light most favorable to plaintiff as the non-moving party ( see Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 AD3d 793, 793–794 [2d Dept 2012] ) and giving him the benefit of every favorable inference ( see Fleet Mtge. Corp. v. Rebich, 227 A.D.2d 518, 519 [2d Dept 1996] ).
See Undated Post–Hearing Decision of Workers' Compensation Law Judge Elaine Stogel (annexed as Exhibit J to defendant's motion), denying plaintiff's workers' compensation claim for failure to establish that an employer-employee relationship existed between plaintiff and his brother-in-law. The Workers' Compensation Law Judge found that plaintiff was an independent contractor.
Plaintiff alleges that his injuries are the result of defendant's negligence and violation of Labor Law §§ 200, 240(1), and 241(6). Defendant has timely moved for summary judgment dismissing the complaint in its entirety. Although plaintiff does not oppose dismissal of his claims under Labor Law §§ 240(1) and 241(6), he argues that his injury was caused by the deficiencies in the deck's structure (vertical beams, cross beams, horizontal joists, and vertical support posts), and that defendant has failed to meet her burden of establishing that she did not breach her duty to take reasonable care and prudence in securing the safety of plaintiff's work area.
See Plaintiff's Affirmation in Opposition to Summary Judgment, dated Aug. 23, 2012, ¶ 10.
Analysis
The record refutes defendant's contention that plaintiff may not recover for injuries allegedly resulting from the deck's structural deficiencies because he was hired to remedy them. At the time of his accident, plaintiff's brother-in-law had not been hired to replace the deck's structure, but only its surface (or decking) and side railings. The parties' contract described the proposed work as, [Slip Op. 3]among other things, to “screw [the] deck in,” meaning to install the decking. Plaintiff's pretrial testimony (at page 34:8–13 of his deposition) echoes the terms of the parties' contract. It was only after plaintiff's accident that defendant paid $1,250 in “Extra Labor & Material” (in addition to the contracted-for price of $4,000) to replace the deck's structure. Because plaintiff was not hired before his accident to replace the deck's structure, he was not injured through the dangerous condition which he had undertaken to eliminate ( see Farrell v. Okeic, 266 A.D.2d 892, 893 [4th Dept 1999] ).
See e.g. Skinner v. G & T Realty Corp. of NY, 232 A.D.2d 627, 627 (2d Dept 1996) (“The plaintiff cannot recover against the appellant under common-law negligence or Labor Law § 200, since he was injured through the dangerous condition which he had undertaken to fix.”).
Likewise, the record refutes defendant's alternative contention that plaintiff may not recover for his injuries because the deck's structural deficiencies were readily observable. That was not the case according to plaintiff's pretrial testimony, but in any event, the open and obvious nature of an allegedly dangerous condition does not preclude a finding of liability against the landowner as a matter of law ( see Cupo v. Karfunkel, 1 AD3d 48, 49 [2d Dept 2003] ).
More to the point, however, is defendant's contention that she did not affirmatively create the deck's structural deficiencies, or had actual or constructive notice of their existence. It is undisputed that she did not build the deck, which someone else had built for her 20 years earlier. Although she had observed that a portion of the deck's surface, on its right side, was rotted, plaintiff was walking on its left side when he had his accident. Defendant, by way of her pretrial deposition testimony, has established prima facie that she had no actual or constructive notice of the deck's structural deficiencies. In opposition, plaintiff has failed to rebut this showing. His expert's contention that defendant “had to see a rotte[d] wood carriage support system because it was open and obvious to be seen” and that “[e]very single time she swept around the base of the undercarriage she saw the rotting undercarriage,” is belied by plaintiff's pretrial testimony that the deck's structural deficiencies were latent ( see James v. Cushman & Wakefield of NY, Inc., 2007 WL 2931036, 2007 N.Y. Slip Op 33132[U] [Sup Ct, N.Y. County 2007] ). “If a defect could not have been discovered by a layman, even by inspection, it is considered a latent defect” ( Rapino v. City of New York, 299 A.D.2d 470, 471 [2d Dept 2002], lv denied100 N.Y.2d 506 [2003] ). Reasonable inspection, not inspection for latent defects, is required to establish constructive notice ( see [Slip Op. 4]Applegate v. Long Is. Power Auth., 53 AD3d 515, 516 [2d Dept 2008] ). It would appear that defendant would have had to take off the deck's surface to discover the deck's structural deficiencies and that would have been unreasonable. No constructive notice, therefore, can be imputed where, as here, the alleged deficiencies were latent and would not be discoverable by a layman upon reasonable inspection ( see McMahon v. Gold, 78 AD3d 908, 910 [2d Dept 2010], lv denied16 NY3d 706 [2011] ).
See a photograph of the deck marked as “plaintiff's Exhibit 4, 1/26/12,” annexed as the last page in Exhibit F to defendant's motion. Defendant authenticated plaintiff's Exhibit 4, which depicted the view of the deck through the kitchen screen door (at pages 47:23–48:2 and at page 53:13–16 of her pretrial deposition). Defendant testified that the deck's rotted surface was in the far right corner of plaintiff's Exhibit 4 (at pages 26:1–27:5 of her pretrial deposition). Plaintiff, however, testified that he turned to his left when he walked out of the kitchen and onto the deck (at page 48:19–21 of his pretrial deposition). He further testified that he fell over the stairway that led to the basement (at page 41:3–7 of his pretrial deposition). According to defendant's pretrial testimony, the stairway that led to the basement was at the bottom left of plaintiff's Exhibit 4 (at page 27:6–12 of her pretrial deposition). Thus, as plaintiff testified and defendant confirmed, plaintiff's accident occurred on the deck's left side, whereas the rotted surface was on the deck's right side.
See plaintiff's pretrial testimony at page 43:15–16 (“That's the undercarriage. That was unseen at the time.”); at page 49:9–25 (“a main support running beam ... “was [i]nvisible,” “[u]nder the surface of the deck,” and “wasn't visible until the surface was removed.”).
Plaintiff's expert cites a number of the Building Code sections he contends were violated: Building Code §§ 27–127 (“Maintenance Requirements”), 27–128 (“Owner Responsibility”), 27–556 (“Live Loads–General”), and 27–557 (“Floor Live Loads”). Not one of these provisions, even if breached, would affect the parties' respective burden of proof on the instant motion. Building Code §§ 27–127 and 27–128 are “non-specific and only state a general duty to maintain the premises in a safe condition” ( Reddy v. 369 Lexington Ave. Co., L.P., 31 AD3d 732, 733 [2d Dept 2006] ). They are insufficient to state a specific statutory violation that would impose liability on defendant. Next, Building Code § 27–556 (“Live Loads–General”) is likewise non-specific to provide a basis for liability. Finally, Building Code § 27–557 (“Floor Live Loads”), while sufficiently specific, cannot establish liability on its own. Assuming, without deciding, that this provision was breached, that would only constitute evidence of negligence, inasmuch as the Building Code is a municipal ordinance and lacks the legal effect of a state statute ( see Elliot v. City of New York, 95 N.Y.2d 730, 734 [2001] ). The dispositive test remains whether defendant has made a prima facie showing that she did not create an allegedly dangerous condition, or had actual or constructive notice thereof. Defendant has made a prima facie showing in this regard, whereas plaintiff has failed to rebut it.
These sections refer to the 1968 Building Code.
Building Code § 27–556 provides:
“General.—In addition to the applicable dead, wind, and other loads, the building shall be designed for uniform live loads, for concentrated live loads, or for concurrent combinations of uniform and concentrated live loads, whichever produce the greatest stress.”
As a matter of policy and, more fundamentally, logic, the Court notes that a carpenter with about 30 erected/repaired decks “under his belt” is in a better position to avoid a workplace accident than an elderly homeowner who (indirectly) hired him to replace the top portion of her deck. Allowing the homeowner to shift the full financial responsibility for the workplace accident involving the deck's structural deficiencies to the hired carpenter increases the latter's incentive to take care, and his care is crucial because if he takes due care, an accident will be averted that the elderly homeowner—who has no knowledge of the deck's structural deficiencies—might not have known how to avert.
Accordingly, it is
ORDERED that defendant's motion is granted, and the complaint is dismissed.
This constitutes the decision, order, and judgment of the Court.