Opinion
2334/15
08-22-2019
Michael STROPOLI and Rosalia Stropoli, Plaintiffs, v. Corrine TAKASAKI, James Murray, Ridgewood Eco-Homes LLC, Lang Development and Construction Company LLC, Quality Concrete Construction, Arthur Boice, Jr. and Arthur Boice, Jr. d/b/a Quality Concrete Construction, Defendants. Ridgewood Eco-Homes LLC and Lang Development and Construction Company LLC d/b/a LD Co., Third-Party Plaintiffs, v. Quality Concrete Construction, Arthur Boice, and Arthur Boice d/b/a Quality Concrete Construction, Third-Party Defendants.
Finkelstein & Partners, LLP, Attorneys for Plaintiffs, 1279 Route 300, P.O. Box 1111, Newburgh, NY 12551, By: Christopher Camastro, Esq. Kaufman, Borgeest & Ryan, LLP, Attorneys for Defendant Ridgeway, 200 Summit Lake Drive, Valhalla, New York 10595, By: Chandel M. Rispin, Esq. Fullerton, Beck, LLP, Attorneys for Defendant Lang, One West Red Oak Lane, White Plains, New York 10604, By: Eileen Fullerton, Esq. Stockton, Barker & Mead, LLP, Attorneys for Defendants Arthur Boice and Quality Concrete, 433 River Street, Suite 6002, Troy, New York 12180, By: John B. Paniccia, Esq.
Finkelstein & Partners, LLP, Attorneys for Plaintiffs, 1279 Route 300, P.O. Box 1111, Newburgh, NY 12551, By: Christopher Camastro, Esq.
Kaufman, Borgeest & Ryan, LLP, Attorneys for Defendant Ridgeway, 200 Summit Lake Drive, Valhalla, New York 10595, By: Chandel M. Rispin, Esq.
Fullerton, Beck, LLP, Attorneys for Defendant Lang, One West Red Oak Lane, White Plains, New York 10604, By: Eileen Fullerton, Esq.
Stockton, Barker & Mead, LLP, Attorneys for Defendants Arthur Boice and Quality Concrete, 433 River Street, Suite 6002, Troy, New York 12180, By: John B. Paniccia, Esq.
James P. Gilpatric, J.
Defendant Ridgewood Eco-Homes LLC (Ridgewood) entered into agreements with homebuyers for the sale and purchase of single-family homes in connection with a real estate project located in Kerhonkson, New York, and with defendant Lang Development and Construction Company LLC (Lang) to undertake development of the real estate project including construction of the homes. Lang subsequently subcontracted with defendant Quality Concrete Construction (Quality) to set foundations for the homes. Defendant Arthur Boice (Boice) is the owner of Quality. On January 22, 2015, Quality purchased a supply of concrete from Clemente Concrete to be delivered to the Kerhonkson jobsite. Plaintiff Michael Stropoli is a concrete delivery driver employed by Clemente who alleges that he was injured while present on the jobsite that day when he slipped and fell as he walked down an icy driveway covered with woodchips to return to his delivery truck.
The action was discontinued upon stipulation of the parties with respect to the homebuyers, defendants Corinne Takasaki and James Murray.
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Plaintiffs allege that Defendants Ridgewood, Lang, Quality and Boice were negligent in permitting an unsafe condition to exist on the driveway and that they violated sections 200 and 241(6) of the Labor Law and 12 NYCRR 23-1.7. Ridgewood and Lang commenced a third-party action for indemnification and contribution against Quality and Boice, individually and d/b/a Quality Concrete. The parties completed discovery and defendants moved for, among other things, summary judgment dismissing all of the claims brought against them.
Defendants Quality and Boice seek summary judgment on the grounds that Quality did not owe a duty of care to plaintiff or have the responsibility to keep the jobsite safe, that Labor Law § 241(6) is inapplicable, and that there is no basis for indemnification or contribution by Quality in favor of Lang. Defendants Ridgewood and Lang seek summary judgment on the grounds that they cannot be held liable pursuant to Labor Law §§ 200 and 241(6) because Ridgewood was not an owner or a general contractor, and neither defendant supervised or controlled the work performed by plaintiff or had actual or constructive notice of the allegedly dangerous condition or created the allegedly dangerous condition. Ridgewood and Lang further assert that plaintiffs have not alleged with sufficient specificity a violation of the Industrial Code but that section 23-1.7 does not apply in any event. Said defendants also assert that plaintiff's responsibility to perform a risk assessment of the jobsite was an integral part of his work, and that Quality breached its obligation to name them as additional insureds. Ridgewood and Lang argue in the alternative that they are entitled to indemnification from Quality and Boice.
Summary judgment is a drastic remedy granted only when there are no doubts as to the existence of a triable issue of fact, (see Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ; Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ), and the "facts must be viewed ‘in the light most favorable to the non-moving party’ " ( Vega v. Restani Const. Corp. , 18 NY3d 499, 503 [2012], quoting Ortiz v. Varsity Holdings, LLC , 18 NY3d 335, 339 [2011] ). "[T]he moving party ... has the burden to establish ‘a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ " ( Voss v. Netherlands Ins. Co. , 22 NY3d 728, 734 [2014], quoting Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). "If the moving party fails to meet this initial burden, summary judgment must be denied ‘regardless of the sufficiency of the opposing papers’ " ( Voss v. Netherlands Ins. Co. , 22 NY3d at 734, quoting Vega v. Restani Constr. Corp. , 18 NY3d at 503 ). If the initial burden is met, then the burden shifts to the "non-moving party ... ‘to establish the existence of material issues of fact which require a trial of the action’ " (Vega v. Restani Const. Corp. , supra at 503).
Labor Law § 241Defendants Quality and Boice
" Labor Law § 241(6) ... imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety’ to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" ( Rizzuto v. L.A. Wenger Contracting Co., Inc. , 91 NY2d 343, 348 [1998] ). This section "imposes liability upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision of the worksite" ( Rizzuto v. L.A. Wenger Contracting Co., Inc. , 91 NY2d at 348-349 ).
" ‘When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory ‘agent’ of the owner or general contractor’ " ( Russin v. Louis N. Picciano & Son , 54 NY2d 311, 318 [1981] ). "The interpretation by the Court of Appeals of the ‘statutory agent’ language limits the liability of a contractor as agent for a general contractor or owner for job site injuries to those areas and activities within the scope of the work delegated, or, in other words, to the particular agency created" ( Everitt v. Nozkowski , 285 AD2d 442, 443 [2nd Dept 2001] ; see also Doyne v. Barry, Bette & Led Duke Inc. , 246 AD2d 756, 758 [3rd Dept 1998] ; Barker v. Menard , 237 AD2d 839,841 [3rd Dept 1997] ). "Subcontractors may be held liable as agents under Labor Law § 241(6) when they have been specifically contractually delegated the duty or obligation to correct unsafe conditions or maintain work site safety" ( Musillo v. Marist College , 306 AD2d 782, 783 [3rd Dept 2003] ).
In Doyne v. Barry, Bette & Led Duke Inc. , (246 AD2d at 757 ), defendant Barry, Bette & Led Duke Inc. (BBL) was the general contractor for a building project. BBL contracted with Schenectady Steel Company Inc. (SSC) to erect steel portions of the building. SSC subsequently contracted with Brownell Steel Inc. (Brownell) "to supply all labor and equipment to erect the structural steel, floor and roof deck with accessories." Plaintiff, an ironworker employed by Brownell, was injured while performing work on the project when he slipped on a bar joist that had a wet spot caused by melted frost. The Appellate Court agreed with the trial court that SSC was a statutory agent of BBL for purposes of Labor Law § 241(6). The Court reasoned that "[a]lthough SSC admittedly was neither the owner nor the general contractor for the project, the contract between SSC and BBL required SSC to ‘[fu]rnish material, labor, equipment and supervision necessary for the complete installation of [s]tructural [s]teel.’ Hence, the record plainly demonstrates that SSC was vested with the requisite authority to supervise and control the injury-producing work, and the mere fact that SSC may not have exercised such authority is irrelevant for purposes of determining the existence of a statutory agency" ( id. at 758 ).
Here, unlike SSC, (supra ), Quality's contract with Lang does not confer upon Quality any authority or supervision over the condition of the premises. Quality's scope of work, pursuant to the contract, was limited to setting the foundations of new homes which necessarily included authority over the manner that plaintiff poured concrete. Plaintiff did not sustain an injury while engaged in the activity of pouring concrete, but rather he was injured while traversing the driveway. The Court therefore finds that Quality is not a statutory agent of Ridgewood or Lang pursuant to Labor Law § 241(6).
Defendants Ridgewood and Lang
Defendants argue that they are neither owners nor general contractors pursuant to Labor Law § 241(6) and therefore have no duty of care to plaintiff. The Court concludes that Ridgewood and Lang are "owners" pursuant to § 241(6), but that 12 NYCRR 23-1.7(6) does not apply in any event. "Courts have held that the term ‘owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person ‘who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit" ( Scaparo v. Village of Ilion , 13 NY3d 864, 866 [2009] quoting Copertino v. Ward , 100 AD2d 565, 566 [2nd Dept 1984] ). "[T]he duty to ensure the safety of workers on one's property [pursuant to Labor Law § 241(6) ] may not be evaded by delegation" ( Marks v. Morehouse , 222 AD2d 785, 786-787 [3rd Dept 1995] ).
Defendants avow that Ridgewood had no authority to control the activity that resulted in plaintiff's injury or the manner of the work, that it did not participate in any snow removal at the jobsite and that it did not have any notice of the driveway condition. Defendants offer the supporting affidavit of Drew Lang, principle of Ridgewood, wherein he provides a series of conclusory statements that, among other things, Ridgewood was not an owner or general contractor, had no notice of the alleged condition of the property, did not have any duties with respect to maintenance of the property and did not control Lang's work.
Accepting all of defendants' assertions as true, however, they are irrelevant for purposes of determining whether Ridgewood is an "owner" pursuant to Labor Law § 241(6). It is undisputed that Ridgewood was the original owner of the subject property who, as evidenced by its contract with Lang, conveyed title to the property to the new home buyers. The contract provides that, following transfer of title and upon Ridgewood's direction, Lang is responsible for construction of the new homes. Even though, having conveyed title to the new home buyers, Ridgewood was not the titleholder at the time of the alleged injury, it had an "interest in the property" to ensure the successful construction of the home and stood in the shoes of the new home buyers by contracting with Lang for its construction (see Scaparo v. Village of Ilion , 13 NY3d at 866 ). It is irrelevant that, as Ridgewood posits, it "did not have any control, supervision or direction of the work" being performed, (see Sanatass v. Consolidated Investing Co., Inc. , 10 NY3d 333, 339 [2008] ), since liability pursuant to Labor Law § 241 " ‘rests upon the fact of ownership," ( Marks v. Morehouse , 222 AD2d at 786 ; see also Gordon v. Eastern Ry. Supply , 82 NY2d 555, 560 [1993] ). It is also irrelevant that title to the property was transferred to the new home buyers and that Ridgewood did not have notice of the alleged condition of the driveway. An owner, as that term is defined under Labor Law, may not delegate its responsibility to ensure a safe workplace (see Marks v. Morehouse , 222 AD2d at 786-787 ), and cannot avoid strict liability based on lack of notice (see Sanatass v. Consolidated Investing Co., Inc. , 10 NY3d at 340 ; see also Rizzuto v. L.A. Wenger Contracting Co., Inc. , 91 NY2d at 352 ). The Court further finds, for those reasons discussed below, that Lang is also considered an "owner" in its capacity as general contractor.
Nor does Lang's bare assertion that it is not an owner of the property suffice to meet its burden on the motion. There can be no dispute, based upon a review of defendants' contract, that Lang is the general contractor responsible for construction of the new homes. The contract provides, among other things, that "[Lang] shall construct the single-family homes and other improvements"; that "[Lang] shall hire workers, procure materials, and prosecute the construction of each Home as directed by REH in accordance with the [sale and purchase agreement]for the Home"; and that "[Lang]shall be the sole entity to contract with laborers and materials providers". Moreover, Lang Construction Manager Hahne testified that he considered Lang Development to be the general contractor for the project.
Nonetheless, the Court finds that, while section 23-1.7(d) of the Industrial Code is sufficiently specific to support the claim, (see Rizzuto v. L.A. Wenger Contracting Co., Inc. , supra at 349), and plaintiffs' late identification of subsection (d) is not fatal to the claim, (see Klimowicz v. Powell Cove Assoc., LLC , 111 AD3d 605, 607 [2nd Dept 2013] ), defendants have met their burden to establish that the open area where the injury occurred does not fall within the purview of section 23-1.7 of the Industrial Code, and plaintiffs have not raised a triable issue of fact. 12 NYCRR 23-1.7(d) provides, in relevant part, that "[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Defendants contend that 23-1.7(d) does not apply to the facts of this matter because the driveway "does not constitute a passageway, walkway or other elevated working surface contemplated by the regulation."
Defendant offers photographs of the road where plaintiff fell. The photographs depict an open area containing a dirt and gravel roadway. Engineer Pici opines "with a reasonable degree of engineering certainty, that the area where the incident occurred is a common area, an open area at the development of a new home and is not a passageway, or walkway as contemplated by 12 NYCRR Section 23-1.7(d)." Although plaintiffs offer proof in opposition to show that the road was the means of access to the construction site and argue that the road was "delineated and distinct", the photographs depict a road that was in an open area, in accord with Pici's opinion. Accordingly, the Court concludes that the subject roadway does not constitute a "passageway, walkway ... or other elevated working surface" within the meaning of 12 NYCRR 23-1.7(d) (see Roberts v. Worth Const., Inc. , 21 AD3d 1074, 1077 [2nd Dept 2005] where Court upheld trial court's finding that the temporary dirt roadway covered with snow and ice where plaintiff slipped and fell was in an open area at the ground level of a construction site and was not a passageway or walkway contemplated by the Industrial Code; see also Garland v. Zelasko Const. Inc. , 241 AD2d 953, 954 [4th Dept 1997] where Court concluded that 23-1.7(d) was not applicable to the facts of the case where a cement driver fell on a patch of ice as he walked beside his truck that was parked alongside a driveway located on a construction lot; compare Fassett v. Wegmans Food Markets, Inc. , 66 AD3d 1274, 1277-1278 [3rd Dept 2009] where Court concluded that battery cover used as step by plaintiff to access cab of backhoe constituted a passageway within the meaning of 23-1.7(d) ]. Accordingly, defendants' motion for summary judgment with respect to claims pursuant to Labor Law § 241(6) and 12 NYCRR 23-1.7(d) must be granted.
Negligence and Labor Law § 200
Defendants Quality and Boice
A threshold issue in every tort case is whether the alleged tortfeasors owed a duty of care to the injured parties (see Espinal v. Melville Snow Contractors, Inc. , 98 NY2d 136, 138 [2002] ). " Labor Law § 200 codifies the common-law duty imposed upon owners and general contractors to maintain a safe work site" ( Card v. Cornell Univ. , 117 AD3d 1225, 1226 [3rd Dept 2014] [citations omitted] ). "[A]n owner ... that retains control over the premises has a general duty to maintain its premises in a safe condition" ( Cook v. Orchard Park Estates, Inc. , 73 AD3d 1263, 1264 [3rd Dept 2010] ). "[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" ( Espinal v. Melville Snow Contractors, Inc. , 98 NY2d at 138-139 ). "[U]nder some circumstances, [however], a party who enters into a contract thereby assumes a duty of care to certain persons outside the contract" ( id. at 139 ). Those circumstances include "(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launch[es] a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( id. at 140 [internal citations omitted] ).
Quality and Boice entered into a contract with Lang to set foundations for homes at the Kerhonkson site. In turn, Quality ordered a supply of concrete from Clemente which was delivered to the site by plaintiff. The threshold question here is whether Quality and Boice owed a duty of care to plaintiff, a third party.
Defendants have offered sufficient prima facie proof to establish that they did not owe a duty of care to plaintiff. Defendants offer, among other things, a copy of their contract with Lang. The contract does not impose any responsibility on Quality and Boice for the removal of ice and snow on the jobsite. Defendants offer the testimony of Boice wherein he affirmed that the scope of Quality's work on the project "focused only on the concrete" and "where to pour" the concrete, and that Quality did not "have say about anything else on the property." Boice further testified that Hahne spread the woodchips and sand that morning. Defendants also refer to portions of Lang Construction Manager Hahne's testimony to establish that the condition of the worksite was Hahne's responsibility. Hahne explains that as the on-site construction manager, it was his responsibility to "go to every site every day" to inspect for snow and ice and that he "would oversee ... that the snow was cleared so that people would get into the site." Plaintiffs have not met their shifting burden to establish a triable issue of fact with respect to whether defendants Quality and Boice owed plaintiff a duty of care. Plaintiffs do not offer any proof to establish that Quality undertook efforts to correct the condition of the driveway, and the Court is not swayed by plaintiffs' argument that Quality and Boice had a duty, separate and apart from the other defendants, to provide plaintiff with safe ingress and egress to the property. The hazardous condition alleged to have existed is an icy driveway on the subject property. Where, as here, " ‘a worker's injuries result from an unsafe or dangerous condition existing at a work site, rather than from the manner in which the work is being performed, the liability of a general contractor, and of an allegedly negligent subcontractor, depends upon whether they had notice of the dangerous condition and control of the place where the injury occurred’ " ( Cook v. Orchard Park Estates, Inc. , 73 AD3d at 1264 quoting Wolfe v. KLR Mech., Inc. , 35 AD3d 916, 918 [3rd Dept 2006] ). There is no evidence to suggest that Quality, a subcontractor here, had control over the condition of the driveway, and Hahne's testimony that Quality could have spread sand and woodchips by hand without seeking his permission is not indicative of control over the condition of the property. Nor does proof offered to show that Boice had the authority to halt the delivery of concrete create a triable issue of fact whether Quality and Boice had control over the condition of the property.
Based on the foregoing, the Court finds that there is no triable issue whether defendants Quality and Boice owed a duty of care to plaintiff, a third party. There is no proof offered to show that plaintiff may have detrimentally relied on said defendants' continued performance of such duties, or that defendants "negligently created or exacerbated a dangerous condition" or displaced another party's duty to safely maintain the jobsite, ( Espinal v. Melville Snow Contractors, Inc. , 98 NY2d at 140-142 ). The Court concludes that defendants Quality and Boice, individually and d/b/a Quality Concrete, do not owe a duty of care to plaintiffs.
Defendants Ridgewood and Lang
Defendants Ridgewood and Lang argue that they cannot be held liable pursuant to the Labor Law because they are not owners of the property. As previously discussed, both parties are considered owners under the Labor Law. Lang asserts in the alternative that it did not create the alleged condition. Ridgewood asserts, in the alternative, that it had no authority to control the activity that resulted in plaintiff's injury or the manner of the work, it did not participate in any snow removal at the jobsite, and it did not have any notice of the driveway condition.
Although the failure to remove all ice does not constitute negligence, (see Cardinale v. Watervliet Housing Auth. , 302 AD2d 666, 666-667 [3rd Dept 2003] ), "a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury" ( Espinal v. Melville Snow Contrs. , 98 NY2d at 141-142 ). Considering the proof offered in a light most favorable to plaintiffs, and affording them every positive inference, (see Vega v. Restani Const. Corp. , 18 NY3d at 503 ; Gadani v. DormitoryAuth. of State of NY , 43 AD3d 1218, 1219 [2007] ), the Court finds that Lang has not met its burden to eliminate all triable issues of fact as to whether it adequately remedied the icy condition or exacerbated the icy condition (see Viera v. Rymdzionek , 112 AD3d 915, 916 [2nd Dept 2013] ).
Lang offers the testimony of its construction manager, Hahne, who acknowledged that it was his responsibility to inspect for snow and ice accumulations on the property. He first arrived at the property at around 8:00 a.m. on the day of the incident and observed a "light coat of ice." Shortly thereafter, he used a front loader to scrape the ice off the driveway and spread sand. The parties offer competing proof to establish the events that followed, resulting in triable issues of fact.
The presence, location and timing of the applications of woodchips and sand are material facts to this dispute. Lang contends in its reply papers that Stropoli "conceded that when he first arrived at the site the driveway was covered with woodchips (Exhibit I, p. 37-41)." A review of those portions of the transcript cited by Lang, however, do not reveal that Stropoli made such a concession. Rather, Stropoli testified that at the point in time when he and Byron backed the trucks out of the driveway and onto the main road, the surface of the driveway consisted of ice and dirt and there were no woodchips on the driveway. When asked whether he and Stripoli had any difficulty walking up the driveway, however, Byron responded that "they had put woodchips down." Hahne's testimony regarding his application of woodchips is vague. Contrary to Lang's assertion that Hahne testified he spread "additional woodchips ... later that morning, and immediately before plaintiff's alleged fall (Exhibit M, pp. 19, 31)," a review of Hahne's testimony reveals that he does not identify two separate, or an "additional," application of woodchips. Hahne testified simply that he applied woodchips that morning after he had applied sand, the latter application having occurred a significant period of time prior to plaintiff's fall, and absent clarity regarding the number of applications. Hahne's testimony is further called into question at the conclusion of his deposition when he indicates that he was unsure whether he had spread any wood chips at all that day. Since "it is well settled that ‘[i]t is not the court's function on a motion for summary judgment to assess credibility,’ " ( Harrington v. Fernet , 92 AD3d at 1072 ), the Court concludes that triable issues exist.
The Court also concludes that Lang has not eliminated triable issues regarding the efficacy of wood chips to treat the condition of the driveway on the day in question. Lang's own construction manager, Hahne, did not testify in accordance with the opinion of its expert. Notably, Hahne testified that wood chips are used for "mud control in areas where there was mud," and that on the day of the incident, the chips were spread "more in [the] mud, not necessarily covering the sand." Hahne's testimony suggests that woodchips are not commonly used with ice, but rather with mud and that, here, the woodchips were spread more over the mud than over the sand which was covering the ice. Byron testified that he noticed wood chips had been spread; a method that he had "never seen ... before," yet Boice testified that he has observed woodchips at other sites. Furthermore, defendants offer the affidavit of Vincent Pici, professional engineer, who states that "it is [his] professional opinion within a reasonable degree of Engineering certainty that the treatment of the weather-related condition in the open area of an unpaved area at this jobsite, through woodchips and sand, was reasonable and appropriate under the circumstances." Pici's opinion, although probative of whether sand and woodchips are appropriate materials to use for the remediation of the alleged conditions, is devoid of any analysis whether the removal of ice in the first instance was reasonable and appropriate, whether the manner that the woodchips were applied was reasonable and whether actions taken by Lang were in conformity with industry standards.
Even if the Court were to determine that Lang met its prima facie burden, plaintiffs have nonetheless offered sufficient proof to establish a triable issue whether Hahne's efforts to correct the icy condition of the driveway were inadequate or exacerbated the condition. Michael Stropoli testified that when he first arrived at the site, he observed that coworker Byron's truck was stuck in the driveway and that both drivers backed their trucks out of the driveway. Byron observed that that driveway was "slick" as the two drivers ascended the driveway, and that he was "seriously questioning [their] ability to get up [the driveway]." Pursuant to Hahne's timeline, these events would have occurred after he scraped the ice and spread the sand. As they descended the driveway, plaintiff fell. After his fall, plaintiff observed ice under the wood chips. Byron likened the fall to "somebody yank[ing] a carpet from under you," noting that plaintiff fell "unusually fast." He also noted, in reference to the wood chips, that "all that stuff went flying" and "it was like ice underneath." Both men testified that they were wearing ice cleats at the time. Notably, a triable issue of fact exists with respect to whether plaintiff and Byron even traversed the driveway together. Boice testified that he was at the top of the driveway with Byron while plaintiff ascended the driveway alone.
When the foregoing testimony is considered together with Hahne's testimony that he scraped all of the ice prior to plaintiff's arrival, triable issues emerge whether Hahne's early morning efforts and subsequent efforts, if any, to correct the icy conditions were adequate. The Court reiterates, in light of the several discrepancies in the testimony related to the essential facts, that " ‘[i]t is not the court's function on a motion for summary judgment to assess credibility,’ " (id. ).
Ridgewood, however, has offered sufficient evidence to demonstrate the absence of any material issues of fact with respect to its liability pursuant to Labor Law § 200 and common law negligence. Ridgewood offers the affidavit of Drew Lang, principle of Ridgewood Eco-Homes LLC, in support of its motion. Mr. Lang states, among other things, that Ridgewood "had no notice of the subject condition that existed at the subject location," and that it "had no responsibilities or duties with respect to maintenance or construction access to Lot 17 on the subject date of the accident." Ridgewood also offers Boice's testimony that he never spoke with anyone from Ridgewood regarding the property, as well as Hahne's testimony that he did not believe Ridgewood knew about the incident prior to the lawsuit. Plaintiffs do not offer any proof to raise a triable issue whether Ridgewood had actual or constructive notice of the condition or whether it participated in correcting conditions on the date of the alleged incident. Notably, plaintiffs state in their sur-reply that they do not oppose this aspect of Ridgewood's summary judgment motion. Consequently, Ridgewood's motion for summary judgment with respect to plaintiffs' allegations of negligence pursuant to the common law and Labor Law § 200 must be granted. The Court has considered the parties' remaining arguments and find them either unavailing or unnecessary to reach.
Accordingly, it is hereby
ORDERED , that the motion for summary judgment to dismiss the complaint brought by defendants Quality and Boice, individually and d/b/a Quality Concrete, is granted; and it is further
ORDERED , that the motion for summary judgment to dismiss the complaint brought by defendant Ridgewood is granted; and it is further
ORDERED , that the motion for summary judgment to dismiss the complaint brought by defendant Lang is granted to the extent that plaintiffs allege violations of Labor Law § 241(6) and 12 NYCRR 23-1.7, but is denied to the extent that plaintiffs allege common law negligence and violations of Labor Law § 200.
This memorandum shall constitute the decision and order of the Court. The original decision and order and all other papers are being delivered to the Supreme Court Clerk for transmission to the Ulster County Clerk for filing. The signing of this decision and order shall not constitute entry or filing under CLR 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.