Opinion
113921/08.
July 7, 2009.
Defendants RM Farm Real Estate ("RM"), Gina Molinet d/b/a RM Farm Real Estate and Gina Molinet a/k/a Jenna Molinet ("Molinet") move to dismiss the complaint against them pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, and in the event the Court denies the motion to dismiss, the Defendants move for additional time to serve an answer. Defendant Living Manor Love cross-moves for the same relief and adopts RM and Molinet's arguments. Therefore, the Court discusses the motion and cross-motion together. Defendants' motion is denied. Defendants' request for additional time to serve an answer is granted and the remainder of the cross-motion is denied.
For the purpose of this motion to dismiss, the Court accepts the facts in the complaint as true. See Kaisman v. Harnandez, 61 A.D.3d 565, 566, 878 N.Y.S.2d 305, 307 (1st Dept. 2009). On April 10, 2008, Plaintiff Edward Bodtman ("Bodtman") was working on the roof of the Willowmec Hotel, owned by Living Manor Love, Inc. (Aff. Molinet ¶ 2.) The complaint alleges Molinet, the real estate agent responsible for selling the premises, hired and directed Bodtman to do work on the roof of the building. Molinet was allegedly an employee of RM Farm Real Estate. Molinet and RM Farm Real Estate were allegedly agents of Living Manor Love, Inc. The complaint further contends that on or prior to April 10, 2008 Molinet contracted with Living Manor Love to "erect, repair, alter, paint, clean or pointing of the building, and/or the structure atop the building, specifically but not limited to the sign on the roof of the building in order to facilitate the sale thereof." (Compl. ¶ 14.) .
Bodtman's affidavit alleges that Gina Molinet instructed Edward Bodtman to drill and attach a "For Sale/RM Farm Real Estate" sign to the "Motel" sign on the top of the building. Plaintiff states that Molinet provided him with the drill and ladder, but did not furnish him with any kind of scaffolding or safety devices. Bodtman states that he received $20 an hour for this work. Bodtman fell from the roof of the building allegedly due to the lack of safety equipment. According to Bodtman, Defendants did not provide worker's compensation benefits to him at any time.
Plaintiff commenced this action on October 14, 2008 asserting causes of action for common law negligence, for violations of Sections 200, 240 and 241 of the Labor Law of the State of New York, and for applicable provisions of Rule 23 of the Industrial Code of the State of New York. ANALYSIS
In this motion, the movants argue that "if a claim is valid on its face, and states a cause of action as a matter of pleading, [it] may still be the subject of attack under paragraph 7 [to § 3211(a)] if through affidavits or any other items of available proof . . . the movant can undermine any material fact on which the claim depends." (Defs' Br. 3.) In a motion to dismiss the court accepts the facts alleged in the complaint as true. See Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 974 (1994). The court should only grant the motion to dismiss "where the essential facts [in the complaint] have been negated beyond substantial question by the affidavits and evidentiary matter submitted." Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81, 692 N.Y.S.2d 304, 308 (1st Dept. 1999) (citation and quotation marks omitted), aff'd, 94 N.Y.2d 659, 709 N.Y.S.2d 861 (2000).
Here, Defendants simply have offered an affidavit of Molinet contradicting some of the Plaintiff's allegations, but have not offered further documentary evidence. Defendants state that through the affidavit of Molinet they have undermined the essential facts in the complaint. In the affidavit, Molinet states that (1) no one asked Plaintiff to put the sign on the building, (2) RM Farm Real Estate did not have any contracts to perform any kind of work on the Motel whatsoever, and (3) Plaintiff did not receive compensation for his work. This does not satisfy the high evidentiary standard. For one thing, Molinet is a defendant, and her statements are self-serving. For another, movants have not submitted evidentiary matter. See id. Finally, Plaintiff's own affidavit contradicts Molinet's statements. The Molinet affidavit therefore does not negate the essential facts beyond substantial question, but merely raises an issue of fact. As Plaintiff gets "the benefit of every favorable inference," this is inadequate. Wilhelmina Models. Inc. v. Fleisher, 19 A.D.3d 267, 268, 797 N.Y.S.2d 83, 84 (1st Dept. 2005).
Now, the Court turns to the parties' substantive arguments. First, the movants argue that Plaintiff was a volunteer, and therefore, the Labor Law is inapplicable. However, Plaintiff's complaint and affidavit allege that Bodtman was hired for $20 an hour. As noted above, in a motion to dismiss the court accepts the facts alleged in the complaint as true.See Leon, 84 N.Y.2d at 87, 614 N.Y.S.2d at 974. The Defendants have not offered any documentary evidence contradicting Plaintiff's affidavit and complaint, other than the Molinet affidavit. In addition, Plaintiff's affidavit and his arguments on this point directly contradict the Molinet affidavit. Therefore, the Defendants have not negated beyond substantial question Plaintiff's argument that he was a paid employee.
Second, the movants argue that if the Court were to assume that the Plaintiff was an employee, the worker's compensation statute would bar this action. Worker's Compensation Law § 11 allows employees to bring an action for damages in court if the employee fails to secure worker's compensation payment. See Terry v. Maurice Pastries, Inc., 34 A.D.3d 328, 826 N.Y.S.2d 2 (1st Dept. 2006). Here, Plaintiff claims the Defendants did not provide worker's compensation benefits to him, and therefore he is at liberty to commence this action. The Defendants have not offered any evidence showing that worker's compensation payments were offered to Plaintiff. In addition, the Defendants in their reply papers and affidavits have stated that the Plaintiff was a volunteer, and presumably, not entitled to worker's compensation. Clearly, the Defendants are contradicting their earlier statements by presenting this argument. Moreover, for reasons set forth earlier in the decision, it does not satisfy the legal standard necessary under CPLR § 3211. Therefore, this argument is without merit.
Third, the movants argue that the labor alleged here, installation of a sign, does not come within the protection of the New York Labor Law § 240(1). Labor Law § 240 provides,
"[a]ll contractors and owners and their agents, . . . in the . . . altering, .. [or] cleaning . . . of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor . . . devices which shall be so constructed, placed and operated as to give proper protection to a person so employed"
(emphasis added). The Court of Appeals of New York has concluded "'altering' within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure." Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 290 (1998). Simple, routine activities are outside the scope of the statute. See id Defendants state that under this provision, attaching a sign to the building does not constitute an alteration to the structure because the work only changed the outward appearance of the building, and is more akin to cosmetic maintenance than to altering for purposes of the Labor Law. Plaintiff counters that prior case law in the First Department supports the contention that drilling holes into the building constitutes an alteration. Plaintiff purportedly drilled holes into the building; therefore the activity falls under § 240 of the New York Labor Law.
The Court has not found, and the parties have not supplied, any case law precisely applicable to this situation. However, the Labor Law was enacted to protect workmen from injury, and courts construe it liberally to effectuate this purpose. See Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 520-21, 482 N.E.2d 898, 901 (1985). In light of this liberal standard and the case law on this issue, the Court concludes that drilling into the Motel sign constitutes an alteration under Labor Law § 240. The court in Malsch v. City of New York, 232 A.D.2d 1, 4, 662 N.Y.S.2d 458, 459 (1st Dept. 1997) noted that in prior decisions the First Department found that the alteration requirement of the statute was met where a physical structure was attached to the building. See id. In addition, the New York Court of Appeals has found the alteration requirement is satisfied where holes were either drilled or chiseled into the structure. See Morales v. DA Food Service. 10 N.Y.3d 911, 912, 862 N.Y.S.2d 449,450 (2008) (plaintiff's work constituted alteration within meaning of Section § 240 where plaintiff drilled holes into wall to run cables through and fell while descending ladder); Joblon, 91 N.Y.2d at 465, 672 N.Y.S.2d at 291 (chiseling hole into block wall to install wall clock met alteration requirement under statute).
Moreover, Defendants' attempts to distinguish the above case law are unavailing. In Munoz v. DJZ Realty LLC, 5 N. Y.3d 747, 800 N.Y.S.2d 866 (2005), the Court of Appeals held that the plaintiffs work did not satisfy the alteration statutory requirement. However, the plaintiff was injured in a fall while papering a new advertisement onto the face of a billboard. Unlike Morales, Joblon, and the case at hand, in Munoz the plaintiff did not engage in drilling or chiseling holes into the structure to attach the advertisement. Additionally, in Anderson v. Schwartz, 24 A.D.3d 234, 808 N.Y.S.2d 26 (1st Dept. 2005), the plaintiff fell from a ladder while removing an auction sign that had already been attached to the building. Plaintiff's removal of the sign did not involve drilling holes, as the holes were previously drilled. Therefore, this activity did not affect the structure and the decision in Anderson is consistent with prior holdings. Accordingly, the Court finds that the argument that the Plaintiff's work does not fall under the Labor Law is without merit.
Fourth, the movants argue that they did not owe a duty, a necessary component of a negligence cause of action, to Plaintiff under common law negligence and Labor Law § 240. Labor Law § 240 applies to "[a]ll contractors and owners and their agents." Defendants RM and Molinet argue that because they are not owners of the premises where the accident occurred, they do not owe a duty to the Plaintiff. However, a third party may be held liable as an agent of the property owner.See Voultepsis v. Gumley-Haft-Klierer, Inc., 60 A.D.3d 524, 525, 875 N.Y.S.2d 74, 76 (1st Dept. 2009). A third party may be considered an agent of a property owner if the third party had authority to supervise and control the employee. See id. Based on the pleadings and affidavit submitted by the Plaintiff, Defendants RM and Molinet supervised and controlled the Plaintiff as an employee. The Defendants have not offered any documentary evidence contradicting these allegations beyond substantial question. The question of whether the Defendants exercised supervision and control over the Plaintiff is a factual question at this point and therefore is appropriately left for resolution at trial. In addition, for anyone to be held liable, owner or agent, for an injury resulting from a dangerous condition at a work site, the party must have "either exercised supervision and control over the work or had actual or constructive notice of the unsafe condition." Higgins v. 1790 Broadway Associates, 261 A.D.2d 223, 225, 691 N.Y.S.2d 31, 33 (1st Dept. 1999). This requirement is simply a codification of "an owner's common-law duty to provide workers with a reasonably safe workplace." Id.; see Miller v. Perillo, 71 A.D.2d 389, 391 422 N.Y.S.2d 424, 425 (1st Dept. 1979); see also Labor Law § 200. The Plaintiff alleges "[t]hat the defendants, their agents, servants and/or employees had actual and/or constructive notice of the dangerous and defective conditions existing upon the work site." (Compl. ¶ 44.) The Defendants have not offered adequate evidence negating this allegation at this time. This issue is appropriately left for resolution at trial.
Based on the above, therefore it is
ORDERED that Defendants RM and Molinet's motion to dismiss the complaint is denied; and it is further
ORDERED that Defendant Living Manor Love, Inc.'s motion to dismiss the complaint is denied; and it is further
ORDERED that Defendants RM and Molinet's motion seeking additional time to serve an answer is granted; and it is further
ORDERED that Defendant Living Manor Love, Inc.'s motion seeking additional time to serve an answer is granted; and it is further
ORDERED that Defendants shall serve a copy of the answer on Plaintiff within 15 days of the service of this order.