Opinion
801357/2017
03-10-2020
Stephen KIELER, Plaintiff v. NATIONAL PROPERTY MANAGEMENT ASSOCIATES, INC., Defendant
THE TARANTINO LAW FIRM, LLP, Attorneys for Plaintiff, Jacob Piorkowski, of counsel ZDARSKY, SAWICKI & AGOSTINELLI, Attorneys for Defendant, David Gutowski, of counsel
THE TARANTINO LAW FIRM, LLP, Attorneys for Plaintiff, Jacob Piorkowski, of counsel
ZDARSKY, SAWICKI & AGOSTINELLI, Attorneys for Defendant, David Gutowski, of counsel
Frank A. Sedita, III, J.
The plaintiff is suing the defendant, principally under the state Labor Law, to recover for injuries he allegedly suffered as a result of falling off a ladder. Before the court are the parties' competing summary judgment motions.
Defendant National Property Management Associates, Inc. (NPMA), is owned by William and Nancy Gacioch. The company manages sixty to sixty-five properties. NPMA also owns an estate in Erie County, with buildings located at 7044, 7060, 7080 and 7100 Old Lakeshore Road in the Town of Derby. The estate is gated and consists of seven buildings: the main house, where William and Nancy Gacioch reside; the carriage house, which has a storage garage on the lower floor and an apartment on the upper floor; the greenhouse/potting shed, which is used to grow plants; the gatehouse, which is occupied by housekeeper Lisa Holcomb and groundskeeper Richard Holcomb; the ice house, which is used to store property maintenance equipment; a car barn, which is used to store William Gacioch's automobile collection; and, a water tower, which is no longer in use.
NPMA employs a small staff to maintain the estate. In addition to Mr. and Mrs. Holcomb, there are at least two other persons employed as maintenance technicians. Donald Smith is the maintenance supervisor. He reports directly to William Gacioch. In the summer of 2015, Mr. Gacioch asked whether Mr. Smith could look for someone to repair or replace the roofs covering three of the buildings on the estate.
Plaintiff Stephen Kieler owned Buffalo Roofing Pros, a company that was doing roofing work in the Old Lakeshore Road area in the summer of 2015. On July 2, 2015, the plaintiff (on behalf of Buffalo Roofing Pros) and Mr. Smith (on behalf of NPMA) entered into a contract for roofing work on the greenhouse potting shed, car barn and carriage house. The plaintiff claims that Mr. Smith, "pretty much directed most of what to do, where to do it, when to do it and how to do it" and even made a man-lift available for lifting workers and materials up onto the various roofs. Mr. Smith concedes that he offered suggestions and made a man-lift available to the roofers but denies that he directed any of their work.
The roofers turned their attention to the carriage house after they completed work on the greenhouse/potting shed and the car barn. The plaintiff testified that he occasionally used the defendant's man-lift to access the roofs of these structures. On the afternoon of August 21, 2015, the plaintiff elected to use his own extension ladder to access the carriage house roof. No scaffolding was erected. The plaintiff estimates the distance from the ground to the carriage house roof is twelve-to-fifteen feet. He describes the ladder as being in good condition, stable and safely placed. He claims that his foot slipped on one of the rungs as he was descending the ladder. He surmises that this was caused by the alleged accumulation of water and debris on the roof, which made the soles of his sneakers wet. The plaintiff also claims that slipping on the rung caused him to lose his balance, which further caused the ladder to bounce and ultimately caused the plaintiff to fall off the ladder and tumble onto the ground below. According to his medical records, when asked how the accident happened, the plaintiff claimed he missed a rung while going down a ladder, slid down the ladder and landed on his feet.
The plaintiff commenced this action on January 27, 2017, seeking to hold the defendant liable under theories of common law negligence as well as violations of New York Labor Law sections 200, 240(1), 240(2) and 241(6). The defendant denies that it was negligent or that it violated any provisions of the Labor Law. The defendant also advances several affirmative defenses, including that it is exempt from prosecution Labor Law § 240(1) or § 241(6).
The plaintiff seeks partial summary judgment on his Labor Law § 240(1) and Labor Law § 241(6) claims. Regarding his Labor Law § 240(1) claim, the plaintiff principally contends that the accident was caused by the defendant's failure to adequately protect him from falling because it failed to furnish him with a ladder and/or failed to secure the ladder the plaintiff was using. Regarding his Labor Law § 241(6) claim, the plaintiff contends that the accident was caused by several violations of the New York Industrial Code: that the roof was not free from accumulations of dirt and wet debris, in violation of 12 NYCRR § 23-17(e)(2); that the ladder was not securely fastened, in violation of 12 NYCRR § 23-1.21(b)(4)(i) ; that there were no proper footings, in violation of 12 NYCRR § 23-1.21(b)(4)(ii) ; and, that no one held the ladder, in violation of 12 NYCRR § 23-1.21(b)(4)(iv). The plaintiff also asks the court to dismiss NPMA's affirmative defense premised upon the homeowner's exception. Finally, the plaintiff seeks to bifurcate the upcoming trial into a liability phase and a separate damages phase, should the court deny his motions.
The defendant opposes the relief sought by the plaintiff and moves for summary judgment in its favor on all of the plaintiff's claims and dismissal of the entire complaint. The defendant's contentions include the following: that it is entitled to summary judgment on the plaintiff's common law negligence and Labor Law § 200 claims because it did not supervise the method and manner of the work performed; that it is entitled to summary judgment on the plaintiff's Labor Law § 240(1) claim because the plaintiff's own conduct (as opposed to a statutory violation) was the sole proximate cause of the accident; that it is entitled to summary judgment on the plaintiff's Labor Law § 240(2) claim because the protections of that statute were not triggered; that it is entitled to summary judgment in its favor on the plaintiff's Labor Law § 241(6) claim because the underlying regulations of the New York Industrial Code are inapplicable to the work that was being performed; and, that the defendant is entitled to the protection of the homeowner's exemption, thus shielding it from liability under both Labor Law § 240(1) and § 240(6).
Summary judgment permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried and that judgment may be directed as a matter of law ( Brill v. City of New York , 2 NY3d 648, 650-651 ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine, material issues of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegard v. New York University Medical Center , 64 NY2d 851, 853 ). When a prima facie showing been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Alvarez v. Prospect Hospital , 68 NY2d 320, 324-325 ). In contrast to evidentiary proof, mere conclusions, expressions of hope or unsubstantiated allegations are insufficient to defeat a prima facie case for summary judgment ( Justinian Capital SPC v. Westlb AG , 28 NY3d 160, 167 ). In the absence of allegations that are patently false, the court may not make determinations as to the credibility of an affidavit or other evidentiary proof presented to the court (see , Sexstone v. Amato 8 AD3d 1116 ).
Various provisions of the Labor Law provide protections for workers, including those doing roofing work. Labor Law § 200 codifies the common law duty of property owner to provide a safe workplace. Labor Law § 241(6) goes further by imposing a nondelegable (but not absolute) duty of care upon owners to provide reasonable and adequate protection to workers under numerous New York State Industrial Code regulations. Labor Law § 240(1), commonly referred to as the "scaffold law," goes further still, imposing absolute liability on owners in connection with gravity-related risks. Labor Law § 240(1) and § 240(2) relate to the same subject matter and should be construed together as though forming part of the same statute (see, generally , Ross v. Curtis-Palmer Hydro-Electric Company , 81 NY2d 494, 503 ; 1B NY PJI3d 2:216, pp. 302-306 (2020); Litigating Construction Accident Cases in New York , § 1:6).
Labor Law § 240(1) provides that: "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, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law § 240(1) liability is contingent on a statutory violation and proximate cause; i.e. that a violation of the statute contributed to causing the accident (see , Blake v. Neighborhood Housing Services of New York City, Inc. , 1 NY3d 280, 287 ; Zimmer v. Chemung County Performing Arts, Inc. , 65 NY2d 513, 524 ). However, liability does not attach where the plaintiff's actions are the sole proximate cause of the accident, such as when he declines to use available and adequate safety devices provided by the owner (see , Cahill v. Triborough Bridge and Tunnel Authority , 4 NY3d 35 ; Kipp v. Marinus Homes, Inc. 162 AD3d 673 ).
A plaintiff is entitled to summary judgment under Labor Law § 240(1) by establishing that he or she was subject to an elevation-related risk and that the failure to provide any safety devices to protect the worker from such a risk was a proximate cause of his injuries. A defendant is entitled to summary judgment dismissing a Labor Law § 240(1) claim by establishing that a statutory violation did not occur, an alleged statutory violation was not a proximate cause of the accident, or the plaintiff's conduct was the sole proximate cause of the accident ( Bruce v. Actus Lend Lease , 101 AD3d 1701, 1702 ).
Assuming, arguendo, that the plaintiff has met his initial burden on summary judgment, the apparently conflicting versions of how the accident occurred raise issues of fact concerning whether a statutory violation proximately caused the plaintiff to fall off the ladder ( Pelonoro v. Sturm Roofing, LLC , 175 AD3d 1062, 1064 ; Arigo v. Spencer , 39 AD3d 1143, 1145 ; also see , Davis v. Brunswick , 52 AD3d 1231 ; Weinberg v. Alpine Improvements , 48 AD3d 915 ). While the defendant has not made a prima facie showing that the plaintiff's declination of the man-lift was the sole proximate cause of the accident, the defendant has at least raised a triable issue of fact regarding its availability and adequacy as a safety device (see , Placidos v. Lake Carmel Fire Department , 15 AD3d 461 ). Accordingly, the motion of both parties for summary judgment in their favor on the Labor Law § 240(1) claim is denied.
Labor Law § 240(2) provides, in part, that: "Scaffolding or staging more than twenty feet from the ground or floor, swung or suspended from an overhead support or erected with stationary supports shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging"
Liability under Labor Law § 240(2) is predicated upon the failure to provide safety rails on a scaffold more than twenty feet off the ground, when such violation is the proximate cause of plaintiff's accident ( Pietrowski v. Are-East River Science Park , 86 AD3d 467, 468 ; Pulsifer v. Eastman Kodak , 219 AD2d 880 ). Thus, a defendant is entitled to summary judgment in its favor should it sufficiently demonstrate the statute is inapplicable or that a statutory violation was not a proximate cause of the accident. Regarding the former, it is undisputed that height differential between the roof line and ground was less than twenty feet. Regarding the latter, it is undisputed that the plaintiff fell from a ladder. The defendant has therefore made the required prima facie showing. The plaintiff has not come forward with evidentiary proof in admissible form sufficient to establish the existence of material issues of fact and it appears that he does not oppose the defendant's motion. Accordingly, the motion of defendant for summary judgment in its favor on the Labor Law § 240(2) claim is granted.
Labor Law § 241(6) provides that: "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that his injuries were proximately caused by a violation of an applicable and specific Industrial Code regulation ( Aragona v. State , 147 AD3d 808, 809 ). A defendant is entitled to summary judgment in its favor should it sufficiently demonstrate code compliance or that the allegedly violated regulation is inapplicable to the work being performed.
The defendant's purported expert explains why the regulations relied upon by the plaintiff are inapplicable to the work that was being performed. Consequently, the defendant has made a prima facie showing that 12 NYCRR § 23-17(e)(2) — the regulation pertaining to debris at work sites — is inapplicable ( St. John v. Westwood-Squibb Pharmaceuticals , 138 AD3d 1501 ). The defendant has also made a prima facie showing that 12 NYCRR § 23-1.21(b)(4)(i), (ii) and (iv) — the regulations pertaining to securing ladders — are inapplicable ( Arigo v. Spencer , 39 AD3d 1143 ). The plaintiff's purported expert fails to address why the regulation pertaining to debris at work sites is applicable, while his allegations concerning the applicability of the regulations pertaining to ladder safety are conclusory. The plaintiff has therefore failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial. Accordingly, the motion of defendant for summary judgment in its favor on the Labor Law § 241(6) claim is granted and the plaintiff's motion is denied.
Regardless of whether the statutes have been violated, both Labor Law § 240(1) and § 241(6) exempt from liability owners of one and two-family dwellings who contract for but do not direct or control the work. Corporate ownership does not bar the applicability of the exemption ( Wood v. Artifact Props , LLC, 169 AD3d 1503 ), especially if the main dwelling and its attendant structures are primarily residential in nature (see , Bartoo v. Buell , 87 NY2d 362 ). Whether an owner's conduct amounts to directing or controlling the work depends upon the degree of supervision exercised over the method and manner in which the work is performed ( Bund v. Higgins , 162 AD3d 1738, 1739 ). Expressing dissatisfaction with the work or directing that it be redone is insufficient to defeat the exemption (see , Kostyj v. Babiarz , 212 AD2d 1010 ). While there is no direction and control when the owner informs the worker what work should be performed, there is direction and control if the owner specifies how the work should be performed ( Byrd v. Roneker , 90 AD3d 1648, 1650 ). Providing safety equipment, together with involvement in the prosecution of the work, also support a finding that there was owner direction and control sufficient to defeat the exemption (see , Florentine v. Militello , 275 AD2d 990 ).
Notwithstanding the credibility of the witness accounts, it is undisputed that the nature and degree of Mr. Smith's supervision is in bitter dispute. The deposition testimony of the plaintiff and another Buffalo Roofing Pros employee portray Mr. Smith as an officious de facto supervisor. By contrast, Mr. Smith characterizes himself as an inquisitive "overseer." Mindful of this conflicting testimony, the plaintiff has failed to demonstrate, prima facie, that the homeowner's exemption does not apply as a matter of law. Thus, his motion to dismiss the defendant's affirmative defense in this regard is denied. To the extent that the defendant is seeking summary judgment in its favor on this issue, that motion is similarly denied because the plaintiff has at least raised an issue of fact regarding whether Mr. Smith, while acting as the defendant's agent, told the plaintiff how to perform certain work ( Gambee v. Dunford , 270 AD2d 809 ).
Labor Law § 200(1) provides, in part that: "All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
Labor Law § 200, as previously noted, is the codification of the common law duty of an owner to provide a safe workplace. Liability can attach under the means-and-method theory, which requires proof that the owners maintained some supervision or control of the worksite and that it was on notice of the work method that caused the accident. Liability can also attach under the dangerous condition theory, which requires proof that there was a dangerous condition on the premises and that the owners/contractors either created the dangerous condition or had actual or constructive notice of it (see , Pelonero v. Sturm Roofing, LLC 175 AD3d 1062 ; Wadlowski v. Cohen , 150 AD3d 930 ).
It is clear that the plaintiff seeks recovery under the means-and-method theory. It is unclear whether he also seeks recovery under the dangerous condition theory. The plaintiff's supplemental bill of particulars in response to former co-defendant William Gacioch's demand clearly placed him on notice of the dangerous condition theory (see, ¶6-8, plaintiff exhibit "K"). By contrast, neither the Complaint (plaintiff exhibit "A"), nor the plaintiff's original bill of particulars in response to defendant NPMA's demand (plaintiff exhibit "G"), nor the supplemental bill of particulars (plaintiff exhibit "K"), apprised defendant NPMA of the dangerous condition theory. The first suggestion that the plaintiff might be pursuing that theory of recovery against defendant NPMA appears in the Attorney Affirmation in Opposition to Defendant's Motion for Summary Judgment.
It is well-settled that a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability for negligence for the first time in opposition to the motion ( Flynn v. Haddad , 109 AD3d 1209, 1210 ; Marchetti v. East Rochester Central School District , 26 AD3d 881 ). Consequently, only the means-and method theory of recovery remains for the court's consideration. For reasons previously discussed, there is an issue of fact regarding the nature and extent of the of the defendant's supervision and control over the work being performed. Accordingly, the motion of the defendant for summary judgment in its favor on the Labor Law § 200 and general negligence claims is denied.
As previously noted, the plaintiff seeks trial bifurcation in the event the court does not grant summary judgment in his favor on the issue of liability. That motion is denied but without prejudice to bring it once more before the judge presiding over the trial of this action.
The foregoing shall constitute the decision and order of this court.