Opinion
No. 3670/2005.
2010-02-2
Julio RODRIGUEZ, Plaintiff, v. Hope Margulies GANY, Victor Gany, and Woodstar Contracting Corp., Defendants.
Gess, Gess & scalon, New York, for Plaintiff. Hoey, King, Toker & Epstein, New York, for Defendants, Hope Margulies Gany & Victor Gany.
Gess, Gess & scalon, New York, for Plaintiff. Hoey, King, Toker & Epstein, New York, for Defendants, Hope Margulies Gany & Victor Gany.
Bruce Somerstein & Associates, P.C., New York, for Defendants, Woodstar Contracting, Corp.
Rubin, Fiorella & Friedman, LLP, New York, Leslie Cardo, Esq., for Third–Party Defendants, Martin Associates.
WAYNE P. SAITTA, J.
Defendants, HOPE MARGULIES GANY and VICTOR GANY, (hereinafter “Defendants”), move this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Plaintiff. Third–Party Defendant, MARTIN ASSOCIATES, moves for Summary Judgment dismissing the Third–Party Plaintiffs' complaint and cross claims as against the GANY Defendants and Defendant WOODSTAR CONTRACTING CORP.
Upon reading the Notice of Motion dated September 26, 2008 and the Affirmation of David P. Feehan, Esq., dated September 26th, 2008, and all exhibits annexed thereto; the Affirmation in Opposition of Donald J. Kavanagh, Esq., dated June 18, 2009; the Affirmation in Opposition of Sean P. King, Esq., dated June 24th, 2009, and all exhibits annexed thereto; the Reply Affirmation of David P. Feehan, Esq., dated September 9th, 2009, and all exhibits annexed thereto; the Notice of Motion by Leila Cardo, Esq., dated September 22nd, 2008, together with the Affirmation of Leila Cardo, Esq., dated September 22nd, 2008, and all exhibits annexed thereto; the Affirmation in Opposition of David P. Feehan, Esq., dated July 30th, 2009, and all exhibits annexed thereto; the Reply Affirmation of Leila Cardo, Esq., dated August 6th, 2009; and after argument of counsel and due deliberation thereon, Defendants' motion for Summary Judgment is denied, and Third–Party Defendant's motion for Summary Judgment is granted for the reasons set forth below.
FACTS
Plaintiff Julio Rodriguez, (hereinafter “Plaintiff”), seeks compensation for a workplace accident which occurred when he fell from a ladder. It is not disputed that he was performing construction work and that he fell from elevation.
The accident occurred on February 20, 2002 while Plaintiff was employed by the HVAC installer, Dynamic Air Conditioning, (hereinafter “Dynamic”), which is not a party to this action.
Plaintiff was descending the aluminum extension ladder in the course of his work when it fell underneath him. He had ascended and descended the ladder safely prior to its fall. Plaintiff stated that the ladder was neither affixed to the landing nor was it secured by any rope at the time of his fall.
Plaintiff was working at the residence of Defendants HOPE MARGULIES GANY and VICTOR GANY, (hereinafter the “OWNERS”), located at 35 Amherst Road, Great Neck, New York. HOPE GANY used one of the bedrooms as a home office.
The OWNERS hired Defendants WOODSTAR CONTRACTING CORP., (hereinafter “WOODSTAR”) to do the foundation, framing and plumbing work.
The OWNERS also hired Defendant MARTIN ASSOCIATES INC. as the HVAC contractor, (hereinafter “MARTIN”). MARTIN thereafter sub-contracted with Dynamic to do the HVAC installation.
ARGUMENTS
The OWNERS argue that because they were not directing or controlling the work which was being done on their one family dwelling, they are entitled to the benefit of the home owner's exemption to liability pursuant to New York Labor Law § 240(1) and 241(6).
The OWNERS also argue they neither had supervision or control over the Plaintiff, nor did they have any notice of a dangerous condition on the work site, and therefore are entitled to summary judgment on the common law negligence and Labor Law § 200 claims.
The OWNERS allege WOODSTAR was the general contractor and was to coordinate MARTIN's work, an allegation which WOODSTAR denies.
WOODSTAR opposes the OWNERS' motion arguing that the OWNERS were the general contractor on the project as they directed the work, arranged for the permits, hired contractors and scheduled the work. WOODSTAR argues that not until this litigation did the OWNERS refer to WOODSTAR as the general contractor. WOODSTAR further argues that the OWNERS directed and controlled Plaintiff's work.
Plaintiff also opposes the OWNERS' motion arguing that the OWNERS are not entitled to the homeowners' exemption from New York Labor Law § 240(1) and 241(6). Plaintiff argues that VICTOR GANY was experienced in the building trades, and that the GANYS were not the type of OWNERS the exemption was intended to protect. Plaintiff also argues that the exemption should not apply as Mrs. Gany used the premises for commercial purposes.
Plaintiff also joins WOODSTAR's argument that the OWNERS directed the day to day operations and work on the premises, and therefore are not entitled to summary judgment on their Labor Law § 200 and common law negligence claims.
The Third–Party Defendant MARTIN argues that the OWNERS are entitled to summary judgment, which would render the third party action moot. In the event summary judgment is not granted to the OWNERS, MARTIN argues that it is entitled to summary judgment against the OWNERS in the third party action because it was not on site and therefore cannot be held liable for any common law negligence claim, or for contribution, as it neither created the dangerous condition nor had notice of it.
MARTIN argues it cannot be held liable for contractual indemnification as there is no provision for indemnification in the contract. MARTIN argues it is entitled to summary judgment on the breach of contract claim for MARTIN's failure to procure insurance in favor of the OWNERS as the contract did not require MARTIN to do so.
ANALYSIS
Homeowner's exemption
New York Labor Laws § 240(1) and 241(6) impose non-delegable, strict liability upon property owners and general contractors for injuries which result from construction activities involving a significant risk due to elevation and for concrete and specific violations of the Industrial Code. Owners of one and two family dwellings may be exempted from this liability, where they do not supervise or direct the work.
The Second Department in Chowdhury v. Rodriguez, 57 AD3d 121, 867 N.Y.S.2d 123 (2 Dept 2008), set forth the two prongs a defendant must satisfy in order to receive the benefit of the homeowners' exemption. The defendant must show that the residence where the work was being performed was only a one or two family residence, and that the defendants did not supervise the methods and manner of the work.
Commercial use
While the premises are a single family house, HOPE GANY used a bedroom as a home office.The OWNERS argue that Mrs. GANY's use of the home office does not remove this case from the homeowner's exemption. They cite the Court of Appeals decision in Bartoo v. Buell, 87 N.Y.2d 362, 639 N.Y.S.2d 778 (1996), which held “... we conclude that when an owner of a one- or two-family dwelling contracts for work that directly relates to the residential use of the home, even if the work also serves a commercial purpose, that owner is shielded by the homeowner exemption from the absolute liability of Labor Law §§ 240 and 241.
The Second Department held in Umanzor v. Charles Hofer Painting & Wallpapering, Inc., 48 AD3d 552, 852 N.Y.S.2d 205 (2nd Dept 2008), that “the use of a portion of the defendants' residence for commercial purposes did not automatically cause them to lose the protection of the exemption since the presence of the office did not detract from the building's primary use as a residence, and any purported commercial activity was incidental thereto. (Internal citations omitted).
Plaintiff does not allege that the repair work being done related in any way to the home office or commercial purposes. Plaintiff adopted WOODSTAR's recitation of the facts for their motion which described the repairs as “an extension, a new livingroom and other renovations at the Gany residence”.
Since it is undisputed that the residence was primarily used as the family dwelling, and since no evidence that the construction related to the commercial use of the house, the commercial use does not take the GANYs out from the homeowner's exemption.
Supervision of work
In order for the GANYs to demonstrate their entitlement to the homeowners' exemption, they must establish that they did not “exercise any direction or control over the manner or method of the work being performed”. Arama v. Fruchter, 39 AD3d 678, 833 N.Y .S.2d 665 (2nd Dept 2007). If the homeowner did supervise “the method and manner of the work”, he or she will be denied the benefit of the exemption. Arama v. Fruchter, 39 AD3d 678, 833 N .Y.S.2d 665 (2nd Dept 2007), Saverino v. Reiter, 1 AD3d 427, 767 N.Y.S.2d 445, quoting Kolakowski v. Feeney, 204 A.D.2d 693, 612 N.Y.S.2d 243.
However, the homeowners' exemption is not lost by just any act of supervision of the Plaintiff's work. The Second Department has repeatedly held that neither decisions regarding aesthetics of the work being done, nor general supervision of the project will deprive a homeowner of the benefit of the exemption. Chowdhury v. Rodriguez, 57 AD3d 121, 867 N.Y.S.2d 123, (2nd Dept 2008); Arama v. Fruchter, 39 AD3d 678, 833 N.Y.S.2d 665 (2nd Dept 2007); Garcia v. Petrakis, 306 A.D.2d 315, 760 N.Y.S.2d 551(2nd Dept 2003).
The OWNERS assert they did not direct and control the work. VICTOR GANY stated in his deposition that he merely checked on the progress of the work, and did not speak to the workers, but did speak with the owner of WOODSTAR about “things that were going to be in the house and you were going to be looking at everyday”. He stated, “[b]ascially I walked in, I looked around, I was pleased with the progress that was made and I walked out.”
The OWNERS claim that WOODSTAR was the general contractor. The OWNERS and MARTIN both cite the testimony of Antonio Fernandes, the chief executive officer of WOODSTAR, to support their position that WOODSTAR acted as general contractor.
However, Fernandes' testimony does not support the characterization of WOODSTAR as the general contractor on the job. While Fernandes stated he understood that he would have to coordinate with the other contractors hired by the owner, when asked if he considered himself to be the general contractor, he stated “no”, and stated in his opposition papers that not until this litigation did Gany every refer to WOODSTAR as the general contractor.
Fernandes further stated that VICTOR GANY was the one who gave all the instructions and orders for the project, and that VICTOR GANY coordinated the project. Fernandes further testified that VICTOR GANY coordinated scheduling between certain contractors.
Significantly, VICTOR GANY, not WOODSTAR, hired MARTIN who in turn hired Plaintiff's employer to do the HVAC installation.
Plaintiff stated he did no know who WOODSTAR was and that he never took direction from it.
Plaintiff, however, testified that “the owner of the house” told Catalino, Plaintiff's supervisor that he and Plaintiff should move the air conditioner condensers and the heating unit.
VICTOR GANY had extensive experience in the construction industry, including involvement in associations of construction workers. He hired various contractors directly to work on this home renovation.
The fact that VICTOR GANY had construction experience does not deprive him of the homeowner's exemption. However, it is relevant to the issue of whether he was acting as the general contractor.
At the time of the accident, VICTOR GANY was home, but not in the room where Plaintiff was working. However, Fernandes' stated that VICTOR GANY gave instructions and coordinated the work for the project. This testimony, together with Plaintiff's testimony that VICTOR GANY directed his work on at least one occasion by speaking with Plaintiff's supervisor, is sufficient to raise a question of fact as to whether VICTOR GANY supervised the work.
The OWNERS have failed to demonstrate as a matter of law that VICTOR GANY did not direct or supervised the construction work at his home. Therefore summary judgment dismissing the complaint as to the GANYS, based upon the homeowners' exemption, must be denied.
Labor Law § 200 and Negligence
An owner may be liable under Labor Law § 200, on either of two distinct grounds. The first is that they supervise or direct the work when a plaintiff's injury is caused by defects or dangers in the methods or materials of the work. The second standard is applicable to worker injuries arising out of the condition of the premises rather than the methods or manner of the work. Chowdhury v. Rodriguez, 57 AD3d 121, 867 N.Y.S.2d 123 (2nd Dept 2008). See also Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82;Lombardi v. Stout, 80 N.Y.2d at 295, 590 N.Y.S.2d 55, 604 N.E.2d 117;Ortega v. Puccia, 57 AD3d 54, 866 N.Y.S.2d 323;McLeod v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 798, 839 N.Y.S.2d 164;Rosenberg v. Eternal Mems., 291 A.D.2d 391, 392, 737 N.Y.S.2d 632.
Here, as the injury was not caused by a dangerous condition at the worksite, the issue is whether the property owner supervised or directed the work which resulted in the Plaintiff's injury.
As previously discussed, the testimony of Fernandes and the Plaintiff raise triable issues of facts whether VICTOR GANY had the requisite control over the Plaintiff's work, and thus, summary judgment as to Labor Law § 200 must be denied.
Indemnification
The OWNERS seek summary judgment on their cross claim against WOODSTAR for contribution, common-law indemnity and contractual indemnity. However, since it has yet to be determined either whether the GANYs are liable to Plaintiff pursuant to Labor Law § 240(1) and Labor Law § 241(6) or whether they were negligent, summary judgment on their indemnification and contribution claims is premature.
In their Third Party complaint, the OWNERS allege causes of action sounding in common law indemnity, contribution, contractual indemnification and breach of contract against MARTIN.
In support of its motion for summary judgment dismissing the OWNERS' claims for contractual indemnification and breach of contract claims, MARTIN annexes a one page letter entitled a “proposal to furnish and install heading and Air Conditioning” at the GANY residence, which it refers to as “the contract”. The letter makes no mention of indemnification or any requirement for MARTIN to procure insurance for the benefit of the OWNERS.
In response, the OWNERS do not submit a contract or any other evidence to show MARTIN agreed to indemnify the Owners or procure insurance for them. Accordingly, MARTIN is entitled to summary judgment dismissing the Owners' claims against it for contractual indemnification and breach of contract.
In support of its motion for summary judgment dismissing the claims for contribution and common law negligence, MARTIN submits the testimony of Anthony Bell, principal and vice president of MARTIN. Bell stated that MARTIN did not perform any work related to the renovations of the OWNERS' home and that they subcontracted the work to Dynamic, Plaintiff's employer. Bell stated that no one from MARTIN went to the site after the work was subcontracted to Dynamic and that MARTIN did not direct their work.
In opposition, the OWNERS state the “contract” between them and MARTIN provides that MARTIN was to “furnish and install hearing and Air Conditioning”. The “contract” explicitly states that MARTIN may sub-contract the job, but has no requirement that MARTIN supervise the subcontractor. A copy of the contract between MARTIN and Dynamic, if there was one, was not submitted. The OWNERS present no evidence that MARTIN ever supervised Dynamic's work on site.
The OWNERS' do not offer any evidence to contradict Bell's testimony that no one from MARTIN was present at any time during the HVAC installation work by Dynamic. The OWNERS have not alleged any specific negligent act or omission by MARTIN. Accordingly, after MARTIN shifted the burden to the OWNERS, they failed to raise an issue of fact as to why MARTIN should be held liable for common law indemnification or contribution.
WHEREFORE, Defendant OWNERS' motion for summary judgment is denied and Third Party Defendant MARTIN's motion for summary judgment is granted and it is Ordered that the third party complaint is dismissed.
This shall constitute the decision and order of the court.