Opinion
Index 63575/2017
04-22-2021
ROGER MEJIA, Plaintiff, v. 69 MAMARONECK ROAD CORP., JBD DEVELOPMENT CORP., DALOMBA MASONRY, LLC, WR HOME BUILDERS, LLC and WESTCHESTER PAVERS, LLC, Defendants. 69 MAMARONECK ROAD CORP. AND JBD DEVELOPMENT CORP., Third-Party Plaintiffs, v. DALOMBA MASONRY LLC, WR HOME BUILDERS, LLC, AND WESTCHESTER PAVERS, LLC, Third-Party Defendants.
Unpublished Opinion
PRESENT: ALEXANDRA D. MURPHY, J.S.C.
DECISION & ORDER
Alexandra D. Murphy Judge
In a consolidated action to recover damages for personal injuries, the defendant WR Home Builders, LLC moves for summary judgment dismissing the complaint, third party complaint and all cross claims insofar as asserted against it:
Papers Considered NYSCEF Doc. No. 92-110; 118-120; 122
1. Amended Notice of Motion/Affirmation of Rebecca A. Barrett, Esq./ExhibitsA-P;
2. Affirmation of John M. Shaw, Esq. in Opposition/Exhibits 1-2;
3. Reply Affirmation of Rebecca A. Barrett, Esq.
Factual and Procedural Background
Plaintiff was injured on October 5, 2016, while working at a construction site for a single-family home in Scarsdale. Defendant 69 Mamaroneck Road Corp. ("69 Mamaroneck") was the owner of the site. It is alleged that defendant JBD Development Corp. ("JBD") was the general contractor. Defendant WR Home Builders, LLC was a subcontractor retained to perform framing work.
Plaintiff, a roofer, was injured when he fell through an open hole cut out for the installation of a chimney. On the date of the accident, plaintiff was wearing a safety harness while working on one side of the roof. His brother, who was also a roofer, called him over for assistance with the work he was doing in another area of the roof that was flat. Plaintiff unhooked his harness because the rope was not long enough to reach the other side of the roof. As he walked across the flat roof, he fell through an unprotected hole.
Plaintiff initially commenced this action against 69 Mamaroneck and JBD asserting causes of action for violations of Labor Law 200, 240(1)(2)(3) and 241(6) as well as common law negligence. In support of the 241(6) cause of action, plaintiff alleged violations of numerous Industrial Code Regulations. Thereafter, 69 Mamaroneck and JBD commenced a third party action against Dalomba Masonry LLC, WR Home Builders and Westchester Pavers, LLC.
Plaintiff previously moved against defendants 69 Mamaroneck and JBD for partial summary judgment on the issue of liability pursuant to Labor Law 240(1) and 241(6). In an order dated July 11, 2019, the Supreme Court, Westchester County (Giacomo, J.) granted that branch of plaintiffs motion for summary judgment on the issue of liability pursuant to Labor Law 241(6) based upon Industrial Code Regulation 12 NYCRR23-1.7. The Court denied the branch of plaintiffs motion for summary judgment on the issue of liability pursuant to Labor Law 240(1) and Labor Law 241 (6) based upon Industrial Code Regulation 12 NYCRR 23-3.3.
Subsequently, plaintiff commenced a separate action against Dalomba Masonry, WR Home Builders and Westchester Pavers, LLC. In an order dated November 6, 2019 (Giacomo, J.), both actions were consolidated, and the caption was amended.
WR Home Builders now moves for summary judgment dismissing all claims against it. WR Home Builders argues that it did not supervise or control plaintiffs work, and therefore, the Labor Law 240(1) and 241(6) causes of action must be dismissed insofar as asserted against it. In any event, WR Home Builders argues that plaintiffs actions were the sole proximate cause of his injuries. WR Home Builders also argues that the Labor Law 241(6) cause of action must be dismissed as plaintiff cannot prove that a violation of a specific provision of the Industrial Code was a proximate cause of his accident. WR Home Builders further argues that the Labor Law 200 cause of action must be dismissed as it did not supervise or control plaintiffs work and did not have notice of any dangerous condition.
In opposition, plaintiff argues that WR Home Builders is not entitled to summary judgment dismissing the Labor Law 200 and common law negligence cause of action as there is an issue of fact as to whether it was negligent. Plaintiff argues that WR Home Builders created the unprotected opening and was on site at the time of the accident. Plaintiff also argues that WR Home Builders failed to establish entitlement to summary judgment dismissing the Labor Law 240(1) and 241(6) cause of action as it failed to establish that it is not an agent of the owner or the general contractor.
Deposition Testimony
Jordan Dubbs testified that he is the sole shareholder of 69 Mamaroneck and JBD and that 69 Mamaroneck owned the premises. Dubbs testified that there was no real general contractor on the site; just subcontractors. WR Home Builders was retained to perform the framing work, and Matthew Roofing Company was retained to perform the roofing work on the project. The subcontractors were paid by 69 Mamaroneck.
Dubbs testified that he is a real estate developer in the business of constructing homes for sale. The project consisted of the construction of a 7, 000 square foot home which was eventually sold. He was not present at the time of plaintiffs accident.
WR Home Builders put up the walls, roof and siding of the house. Dubbs dealt with Walter Reis De Agular, the owner of WR Home Builders. WR Home Builders performed the plywood framing of the house. After the plywood covering was installed, Matthew Roofing installed the roof with asphalt, shingles, etc. Dubbs did not observe WR Home Builders put the plywood on the roof, but he came to the site after it was done and did not make any complaints.
Dubbs testified that there were three chimneys on the house. WH Home Builders installed the plywood built around two of the chimney structures. Dubbs testified that a lower third chimney for the first-floor fireplace was built by the masons.
Walter Reis De Aguilar testified at an examination before trial on behalf of WR Home Builders. Aguilar is the president of WR Home Builders, which performs carpentry work, including house framing and sheathing. For the project in question, Aguilar performed the carpentry work himself along with other WR Home Builders employees. He did not subcontract out any of the work. Two chimneys were part of the construction plans. After placing the plywood for the roof, WR Home Builders covered the openings for the chimneys with three-quarter inch plywood.
Aguilar testified that WR Home Builders first framed the house then installed the windows, the exterior doors and sheathing on the exterior of the house and the roof. WR Home Builders only installed wood on the roof and did not apply the asphalt. Aguilar considered JBD to be the general contractor at the site.
Aguilar testified that when the framing was completed by WR Home Builders, the other subcontractors, such as the electricians and plumbers, started working inside the house. He stated that the roofers began their work on the roof while WR Home Builders was still on site. Aguilar was not present when plaintiff's accident occurred. The opening that plaintiff fell through was in the architectural drawings provided to Aguilar for the chimneys. Aguilar left the opening in the roof covered. After he made the openings for the chimney, which was approximately 36 inches by 20 inches, Aguilar nailed in three-quarter inch four by four foot plywood to cover the hole.
Plaintiff testified that he had been a roofer for over ten years. On the job in question, he was provided with a safety harness and rope that was more than ten feet long. Plaintiff testified that the rope was attached to an anchor. Plaintiff testified that the anchor was moved depending on where the work was being performed on the roof. He admitted that he placed anchors many times. In fact, on this particular job, plaintiff installed some of the anchors on the roof while his co-workers installed the remaining anchors.
Plaintiff testified that his brother, who was a co-worker, was working about 10 to 20 feet away. In order to get to the area where his brother was working, plaintiff traversed a flat portion of the roof. According to plaintiff, the flat roof was covered with an ice and water shield. Plaintiff unhooked his rope from the anchor to reach the area where his brother was working. As he walked across the flat roof, he fell through a hole.
Plaintiff testified that he "was in charge of the job/' that he directed his co-workers, and that part of his responsibilities was to connect the anchors. Plaintiff further testified that he knew there was a hole in the flat portion of the roof for the chimney, but he did not know exactly where it was located. He stated that one of his co-workers informed him about the hole prior to his fall. According to plaintiff, the hole was not marked. Plaintiff admitted that he could have moved the anchor and reattached his safety harness, which he conceded would have been the best safety practice.
At a further deposition, plaintiff testified that from 2005 through 2016, he worked for Matthew Roofing installing tiles and shingles. Plaintiff testified that he had the most experience on the job site in question and instructed his co-workers. When he first arrived at the site, other Matthew Roofing workers had already covered up the roof with paper for waterproofing and began to install shingles. Matthew Roofing workers supplied paper and ice and water shields to waterproof the roof. The paper was nailed to the surface; the ice and water shields, which have glue, adhere to the roof surface and are used for flat roofs. Plaintiff's employer supplied safety equipment, such as ladders and lanyards, at the job site.
Plaintiff testified there were five roofers on the site. The roof had been completely framed when Matthew Roofing began its work at the site. The owner of Matthew Roofing oversaw the work. At the time of the accident, plaintiff was using a nail gun to install shingles. He was standing on a scaffold and wearing a lanyard. His brother, also a Matthew Roofing worker, called htm over to ask a question. Plaintiff stepped off the scaffold and onto the roof. Plaintiff was still wearing his lanyard while walking on the roof. However, plaintiff disconnected his lanyard as he was going to step on the flat roof because the lanyard could not reach that area. Plaintiff was walking on the flat roof and stepped into a hole that was covered with the black ice and water shield. Plaintiff testified that he was aware that his co-workers placed the ice and water shield over the hole a few weeks earlier. Plaintiff further testified that the typical procedure for Matthew Roofing was to either place plywood on top of the hole or not cover the hole in the roof. He testified:
Q. So is it your testimony that there was a hole in the flat area of the roof where you were walking that was invisible to you because it had been covered by your coworkers previously with [an] ice and water shield?
A. Yes.
Q. So that area of the roof looked uniform and the same?
A. Yes (NYSCEF Doc. 105 p. 43).
Discussion
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v NY. Univ. Med. Ctr., 64 N.Y.2d at 853).
"Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment 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 Hosp., 68 N.Y.2d 320, 324 [1986]; see Zuckerman v City of New York, 49 N.Y.2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v New York, 49 N.Y.2d at 562).
"Labor Law §§ 240 (1) and 241 (6) apply to owners, contractors, and their agents" (Medina v R.M. Resources, 107 A.D.3d 859, 860 [2d Dept2013]). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured (Medina v R.M. Resources, 107 A.D.3d at 860; Delahaye v Saint Anns School, 40 A.D.3d 679, 683 [2d Dept 2007]).
Here, WR Home Builders established prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). Based upon the deposition testimony submitted in support of the motion, WR Home Builders demonstrated that it was not a general contractor or an agent of the owner or general contractor with the authority to supervise and control plaintiffs work (see Bennett v Hucke, 131 A.D.3d 993 [2d Dept 2015]). Plaintiff failed to raise an issue of fact in oppositeion.
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998]). To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to supervise or control the methods or materials of a plaintiffs work (see Pacheco v Smith, 128 A.D.3d 926 [2d Dept 2015]). "Where a plaintiffs injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition" (internal citations and quotations omitted) (Bennett v Hucke, 131 A.D.3d at 995).
Here, the plans and specifications for the house included an open space for the chimneys. WR Home Builders framed the house, including the roof, with the open space for the chimneys as specified. The evidence establishes that WR Home Builders covered those open holes with plywood. The hole was uncovered after WR Home Builders finished the framing work. Plaintiff himself testified that it was his co-workers who placed the water and ice shield over the hole that he fell through. Thus, WR Home Builders established, prima facie, both that it did not create or have actual or constructive notice of the condition which allegedly caused the injury to the injured plaintiff and that it did not have the authority to supervise or control the means and methods of his work (see DiMaggio v Cataletto, 117 A.D.3d 984, 986-987 [2d Dept 2014]). In opposition, plaintiff failed to raise a triable issue of fact (see Medina v R.M. Resources, 107 A.D.3d 859).
Inasmuch as WR Home Builders was not an owner, general contractor or an agent of the owner or general contractor, did not supervise and control plaintiff's work and did not have notice of a dangerous condition, the complaint and all claims asserted against it are dismissed.
WR Home Builders also argues that the Labor Law 240(1) and 241(6) causes of action must be dismissed on the grounds that plaintiffs actions were the sole proximate cause of his injuries. In his opposition, plaintiff argues that the Labor Law 240(1) cause of action must not be dismissed, and further, that the prior Court should have granted plaintiffs motion for partial summary judgment on the Labor Law 240(1) cause of action.
In the order dated July 11, 2019, the prior Court denied plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law 240(1) on the grounds that issues of fact exist as to whether plaintiffs actions were the sole proximate cause of his injuries. The Court held that "[a] jury could find that plaintiff was provided with an adequate safety device, that he was expected to use the safety device, and that he chose for no good reason not to do so, and had he not made that choice, he would not have been injured." The Court further found that there was no evidence that plaintiff was required to work in the area where the hole was located. However, despite the foregoing, the prior Court then granted plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law 241(6) premised upon 12 NYCRR 23-1.7(b)(1).
To the extent that plaintiff seeks reargument of his prior motion, plaintiff has failed to file a notice of motion seeking any affirmative relief and failed to move to reargue the underlying motion in a timely manner. Nevertheless, this Court will exercise its discretion and search the record as the Court finds the prior order to be inconsistent. However, contrary to plaintiffs contention, upon searching the record, the Court denies plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law 241 (6) premised upon 12 NYCRR 23-1.7(b)(1) as issues of fact exist as to whether plaintiff's actions were the sole proximate cause of his injuries, Accordingly, it is
ORDERED that the motion of defendant WR Home Builders LLC for summary judgment is GRANTED and the complaint, third party complaint and all cross claims are DISMISSED insofar as asserted against it; and it is further
ORDERED that, upon searching the record, so much of the order dated July 11, 2019 granting that branch of plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law 241(6) premised upon Industrial Code Regulation 12 NYCRR 23-1.7 is VACATED and the branch of plaintiffs motion for partial summary judgment on the issue of liability pursuant to Labor Law 241 (6) premised upon 12 NYCRR 23-1.7 is DENIED.
Counsel for the remaining parties are directed to appear in the Settlement Conference Part for further proceedings, at a date and time to be provided by that part.