Opinion
Index No: 301780/2014 Third-Party Index: No: 84005/2014
05-19-2016
CARLOS PEREZ and ALICIA PEREZ Plaintiffs, v. FAROS PROPERTIES, LLC, 63 DOWNING TRUST, J. ROBERT CASEY AS THE TRUSTEE OF 63 DOWNING TRUST, THE ANDREWS ORGANIZATION, INC., DOWNING COURT CONDOMINIUM and THE BOARD OF MANAGERS OF THE DOWNING COURT CONDOMINIUM, Defendants FAROS PROPERTIES, LLC, 63 DOWNING TRUST, J. ROBERT CASEY AS THE TRUSTEE OF 63 DOWNING TRUST, Third- Party Plaintiffs, v. INNSBRUCK RENOVATIONS, LLC, Third- Party Defendant.
DECISION AND ORDER
Present: HON. KENNETH L. THOMPSON, JR. The following papers numbered 1 to 7 read on this motion to dismiss No On Calendar of February 5, 2015
| PAPERS NUMBER | |
| Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed | 1, 3 |
|---|---|
| Answering Affidavit and Exhibits | 2, 4, 5, 6 |
| Replying Affidavit and Exhibits | 7 |
| Affidavit | ___ |
| Pleadings -- Exhibit | ___ |
| Memorandum of Law | ___ |
| Stipulation -- Referee's Report --Minutes | ___ |
| Filed papers | ___ |
All defendants move pursuant to CPLR 3211(a)(1) to dismiss the complaint and move pursuant to CPLR 3212 for summary judgment dismissing the complaint. Plaintiff cross-moves pursuant to CPLR 3212 for summary judgment on liability with respect to their Labor Law 240(1) claim. This action arose as a result of personal injuries sustained by plaintiff, Carlos Perez, (Perez), when a piece of sheet rock that was being installed in a ceiling fell on Perez' head. Plaintiff was employed by third-party defendant, Innsbruck Renovations, LLC. Defendant, 63 Downing Trust, (Trust) owned the condominium property. Defendant J. Robert Casey as the Trustee of 63 Downing Trust, (Trustee), was the trustee of the Trust. Non-parties, Jeremy Leventhal and Alexander Levanthal, who are brothers, are the beneficiaries of the trust. Defendant, Faros Properties, LLC, (Faros), is a real estate company owned by the Levanthal brothers. Defendant, Downing Court Condominium, (Condominium), owns the condominium building housing the pertinent condominium unit. Condominium retained defendant, The Andrews Organization, (Andrews), as the managing agent. Defendant, The Board of Managers of the Downing Court Condominium, (Managers), is the board of managers for the Condominium.
Plaintiff has brought Labor Law 200, 240(1)(2)(3) and 241(6) causes of action and common law negligence as against the defendants. The claim of co-plaintiff, Alicia Perez, is derivative.
THE CONDOMINIUM DEFENDANTS
The condominium defendants are Andrews, Managers and Condominium. Both Labor Law 240 and 241 are applicable to "all contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work." It is clear that the condominium defendants are not contractors with respect to the work performed in the subject apartment. With respect to whether the condominium defendants are owners: Liability under the Labor Law as an owner, however, turns in every case on sometimes fine distinctions relating to ownership of the premises and control of the injury-producing work. And whereas condominium apartments are owned by individual unit owners (here, the Tomchinskys), a cooperative corporation owns an entire building, including the apartments where individual tenant-shareholders reside; the residents of these apartments own stock in the corporation, which grants them proprietary leases to occupy the space in the premises to which their shares are allocated (see generally Frisch v Bellmarc Mgt., 190 AD2d 383, 387 [1st Dept 1993] ["While some superficial aspects of condominium and cooperative ownership are similar . . . , the two forms of interest in real property are fundamentally different by design and as a matter of law"]).
(Guryev v. Tomchinsky, 20 N.Y.3d 194, 201-02 [2012]).
"[S]ince the [Trust] not the condominium, own the [Trust's] apartment, the [condominium defendants] are not the owner's agents within the meaning of the Labor Law." Guryev v. Tomchinsky, 20 N.Y.3d 194, 200 [2012]).
With respect to Labor Law 200:
[M]ere oversight of the timing and quality of the work performed is not equivalent to direct supervision and control and is thus insufficient to support the imposition of liability under Labor Law 200. (See Gonzalez v United Parcel Serv., 249 AD2d 210, 210-211 [1998]; Pacheco v South Bronx Mental Health Council, 179 AD2d 550, 551 [1992], lv denied 80 NY2d 754 [1992]; see also Brezinski v Olympia & York Water St. Co., 218 AD2d 633, 634-635 [1995]).
(Artiga v Century Management Co., 303 AD2d 280 [1st Dept 2003]).
There is no evidence that the condominium defendants exercised direct control over the renovation work herein.
TRUST DEFENDANTS AND FAROS
The trust defendants, Trust and Trustee, argue that the exception to Labor Law 240 and 241 for owner of a one family dwelling applies to them. However, plaintiff avers that at the time of the renovation, plaintiff knew that the purpose of the renovations to the subject unit was to "flip" the unit. The Levanthal brothers aver that they intended to live in the unit at the time of the renovation, even though the unit was eventually sold without any brother living in it.
"The Supreme Court properly determined that the plaintiff raised an issue of fact as to the applicability of the one-family homeowner exemption, which would not apply if the aim of the construction was to further a commercial enterprise (see Van Amerogen v Donnini, 78 NY2d 880, 882-883 [1991]; Lawless v Kera, 259 AD2d 596, 597 [1999]; Lombardi v Stout, 80 NY2d 290 [1992])." (Morgan v. Rosselli, 9 A.D.3d 417, 419 [2nd Dept 2004]).
Defendants argue that plaintiff did not sufficiently elaborate what safety device was required to prevent platinff s injuries. However, "[n]or was plaintiff required to present evidence as to which particular safety devices would have prevented his injury (see, Guillory v Nautilus Real Estate, 208 AD2d 336, 338, lv dismissed and denied 86 NY2d 881)." Noble v. AMCC Corp., 277 A.D.2d 20, 21 [1st Dept 2000]).
With respect to Labor Law 200 and plaintiff's common law negligence claims, Perez further avers that the owners "directed and supervised our work." On a summary judgment motion the "court should draw all reasonable inferences in favor of the non-moving party and should not pass on issues of credibility." (Dauman Displays Inc. v. Masturzo, 168 AD2d 204 [1st Dept. 1990]). "It is settled that the function of a court on a motion for summary judgment is issue finding, not issue determination." (Clearwater v. Hernandez, 256 AD2d 100 [1st Dept. 1998]). Therefore, plaintiff Labor Law 200 and common law negligence claims should not be dismissed as against the trust defendants.
With respect to that branch of the motion seeking dismissal of the action against Faros, Faros was the signatory on the work applications to the Department of Buildings. While defendants submit affidavits regarding the lack of involvement of Faros in the renovations, plaintiff has not had any opportunity to conduct discovery. (CPLR 3212(f)). It would be premature at this juncture to dismiss the action as against Faros.
PLAINTIFF'S CROSS-MOTION
Plaintiff's cross-motion for liability on their Labor Law 240(1) cause of action is denied as there is an issue of act as to whether the exception to Labor Law 240 for an owner of a one family dwelling applies in this action.
CONCLUSION
The motion is granted to the extent that the complaint and any cross-claims against defendants, The Andrews Organization, Inc., Downing Court Condominium and The Board of Managers of the Downing Court Condominium are hereby dismissed. The motion is otherwise denied. The plaintiffs' cross-motion is denied.
The foregoing shall constitute the decision and order of the Court. Dated: MAY 19 2016
/s/ _________
KENNETH L. THOMPSON JR. J.S.C.