Opinion
INDEX No. 12/0496
05-12-2020
CHRISTOPHER OLIVER and ELLEN OLIVER, Plaintiff, v. THE KILEY FAMILY LLC, KORAL BROS., INC., CREATIVE TOUCH LANDSCAPING INC., and AUDIO VIDEO SYSTEMS, Defendants.
DELL & DEAN, PLLC Attorneys for Plaintiff 1225 Franklin Avenue, Suite 450 Garden City, New York 11530 PEREZ & CARIELLO Attorneys for Defendant The Kiley Family LLC 333 Earle Ovington Boulevard P.O. Box 9372 Uniondale, New York 11553 CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER Attorneys for Defendant Koral Bros., Inc. 333 Earle Ovington Blvd., Suite 502 Uniondale, New York 11553
PRESENT: Hon. CHERYL A. JOSEPH Acting Justice Supreme Court Submission Date: 5/25/18
Mot. Seq. # 006 - MG 007 - MD DELL & DEAN, PLLC
Attorneys for Plaintiff
1225 Franklin Avenue, Suite 450
Garden City, New York 11530 PEREZ & CARIELLO
Attorneys for Defendant The Kiley Family LLC
333 Earle Ovington Boulevard
P.O. Box 9372
Uniondale, New York 11553 CONGDON, FLAHERTY, O'CALLAGHAN,
REID, DONLON, TRAVIS & FISHLINGER
Attorneys for Defendant Koral Bros., Inc.
333 Earle Ovington Blvd., Suite 502
Uniondale, New York 11553
Upon the following papers numbered 30 to 65 read on these motions for summary judgment: Notice of Motion and supporting papers 30 - 47; Notice of Motion and supporting papers 48 - 57; Answering Affidavit/Affirmations and supporting papers 58 - 61; Replying Affidavits/Affirmations and supporting papers 64 - 65; Other 66, 68 - 69; (and after hearing counsel in support and opposed to the motion) it is,
BRIEF BACKGROUND
Plaintiff Christopher Oliver, and his wife derivatively, commenced this action to recover damages for personal injuries allegedly sustained on February 17, 2009, while working on the construction of a single-family home located at 590 Halsey Neck Lane, Southampton, New York 11968. Plaintiff was unloading a cabinet delivery from a box truck owned by his employer when he allegedly was injured when he stepped in a tire rut while carrying a cabinet weighing approximately 100 to 115 pounds.
For purposes of this application, references to Plaintiff relate only to Christopher Oliver unless otherwise noted.
The premises in question is owned by Defendant The Kiley Family LLC ("Kiley Family"), which hired Defendant Koral Bros., Inc. ("Koral Bros.") (collectively "Defendants") as the general contractor to oversee the construction project on 590 Halsey Neck Lane, Southampton, New York 11968. At the time of the accident Plaintiff was employed by nonparty, East End Country Kitchens, a separate contractor hired by Kiley Family which coordinated its work with Koral Bros. By way of his complaint, Plaintiff alleges causes of action against Defendants based on common law negligence and violations of Labor Law §§ 240(1), 241(6), and 200. Defendants joined issue denying Plaintiff's claims and asserting affirmative defenses. The note of issue was filed on September 29, 2017. Thereafter, Plaintiff discontinued the action as it relates to Defendants Creative Touch Landscaping Inc. and Audio Video Systems.
Also known as Pazera Associates.
Kiley Family now moves for summary judgment (motion sequence 6) dismissing the complaint on the grounds Kiley Family is exempt from Plaintiff's Labor Law §§ 240(1) and 241 (6) claims and cannot be held liable under the common law or Labor Law § 200 pursuant to the single-family owner exemption. Kiley Family further assert that the Labor Law and negligence claims against it should also be dismissed since it did not direct or control the work nor did it have any involvement in the means, manner or methods of work performed by Plaintiff. In support of the motion Kiley Family submits, inter alia, a copy of the pleadings, the transcripts of the parties' deposition testimony and the Koral Bros. estimate of work to be performed. Plaintiff opposes the motion, except for Labor Law § 240(1) which he agrees can be dismissed.
Koral Bros. also moves for summary judgment (motion sequence 7) dismissing the complaint on the grounds that none of the Industrial Code sections are relevant, were shown to be violated an/or the proximate cause of Plaintiff's accident. Koral Bros. further asserts that the negligence claim fails because it did not control the means and methods of Plaintiff's work and it did not have actual or constructive notice of the tire rut alleged to be involved in Plaintiff's accident. In support of the motion Koral Bros. submits, inter alia, a copy of the pleadings and the transcripts of the parties' deposition testimony. Plaintiff opposes the motion, except for Labor Law § 240(1) which he agrees can be dismissed.
SUMMARY JUDGMENT
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320(1986); Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985). The movant has the initial burden of proving entitlement to summary judgment. Winegrad v. New York Univ. Med. Ctr., supra. Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, 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. See Vega v. Restani Constr. Corp., 18 N.Y.3d 499 (2012); Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); see also CPLR Rule 3212 (b). However, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact. See Zuckerman v. City of New York, supra; Perez v. Grace Episcopal Church, 6 A.D.3d 596 (2d Dept, 2004). The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr., supra. In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party. See Matter of New York City Asbestos Litig. v. Chevron Corp., 33 N.Y.3d 20 (2019); Vega v. Restani Constr. Corp., supra. Defendant - Kiley Family LLC
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. See Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343 (1998); Wass v. County of Nassau, 173 A.D.3d 933 (2d Dept. 2019); Rodriguez v. 250 Park Ave., LLC, 161 A.D.3d 906(2d Dept 2018). To impose liability under this section of Labor Law, a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case. See Graziano v. Source Bldrs. & Consultants, LLC, supra; Ortega v. Roman Catholic Diocese of Brooklyn, N.Y., 178 A.D.3d 940 (2d Dept 2019); Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717 (2d Dept 2019). The Industrial Code section allegedly violated must set forth a specific safety standard. See Rodriguez v 250 Park Ave., LLC, supra; Zaino v. Rogers, 153 A.D.3d 763 (2d Dept 2017); Aragona v. State of New York, 147 A.D.3d 808 (2d Dept 2017).
Labor Law § 241(6) specifically exempts "owners of one or two-family dwellings who contract for but do not direct or control the work" from liability thereunder. See Sanders v. Sanders-Morrow, 177 A.D.3d 920 (2d Dept. 2019); Rodriguez v. Mendlovits, 153 A.D.3d 566 (2d Dept. 2017); Wadlowski v. Cohen, 150 A.D.3d 930 (2d Dept 2017). In order for a defendant to receive the protection of the homeowner's exemption, such a defendant must show that the premises consisted of a one-or two-family residence, and that the owner did not direct or control the work being performed. See Sanders v. Sanders-Morrow, supra; Marquez v. Mascioscia, 165 A.D.3d 912 (2d Dept. 2018); Rodriguez v Mendlovits, supra). The phrase "direct or control" is to be strictly construed and refers to the situation where the owner supervises the method and the manner of the work. See Lazo v. Ricci, 178 A.D.3d 811 (2d Dept. 2019); Diaz v. Trevisani, 164 A.D.3d 750 (2d Dept 2018); Rodriguez v. Mendlovits, supra). Instructions about aesthetic design matters or the retention of the limited power of general supervision are insufficient to overcome the statutory exemption from liability. See Arama v. Fruchter, 39 A.D.3d 678 (2d Dept 2007); Chowdhury v. Rodriguez, 57 A.D.3d 121 (2d Dept. 2008); Edgar v. Montechiari, 271 A.D.2d 396(2d Dept 2000). Further, the applicability of the exemption is based on whether the site and the purpose of the work relates to the owner's residential use of the property. See Bartoo v Buell, 87 N.Y.2d 362 (1996); Marquez v. Mascioscia, supra; Dasilva v. Nussdorf, 146 A.D.3d 859 (2d Dept. 2017). Where a one-or two-family property serves both residential and commercial purposes, the applicability of the exemption depends on "the nature of the site and the purpose of the work being performed, and must be based on the owner's intentions at the time of the injury". Dupre v. Arant, 151 A.D.3d 1675, 1676-1677 (4d Dept. 2017) (quoting Batzin v. Ferrone, 140 A.D.3d 1102, 1103 (2d Dept. 2016); see Caiazzo v. Mark Joseph Contr., Inc., 119 A.D.3d 718 (2d Dept. 2014). Renovating a residence for resale or rental qualifies as work being performed for a commercial purpose. See Batzin v. Ferrone, supra; Landon v. Austin, 88 A.D.3d 1127 (3d Dept 2011).
The Kiley Family made a prima facie showing that they were exempt from liability under the homeowner's exemption of Labor Law § 241(6), as their submissions demonstrated, prima facie, that the work being performed directly related to the residential use of their home, and that they did not direct or control the work being performed. See Bartoo v. Buell, supra; Dasilva v. Nussdorf, supra; Kosinski v. Brendan Moran Custom Carpentry, Inc., 138 A.D.3d 935 (2d Dept 2016). The Kiley Family intended to use the subject premises as a vacation home after renovations were completed. See Romero v. Bangiyeb, 165 A.D.3d 912 (2d Dept. 2018); Marquez v. Mascioscia, supra). The argument that Kiley Family paid annual rent to a trust whereby overcoming the exemption does not change the fact that the Kiley Family intended to use the home for residential purposes; the creation of the trust and payment to same was for estate purposes only. C.f. Nudi v. Schmidt, 63 A.D.3d 1474 (3d Dept. 2009) (there the owners' son lived on the premises and paid rent to the owner parents).
Further, neither Kiley Family's instructions relating to the aesthetic appearance of the subject premises nor their inspection, every few weeks, of the progress of the work constitute the requisite direction or control necessary to overcome the statutory exemption. See Arama v. Fruchter, supra; McGuiness v. Contemporary Interiors, 205 A.D.2d 739 (2d Dept 1994). Both the Kiley Family's and Plaintiff's submissions indicated, prima facie, that they never interacted with each other prior to the accident; Plaintiff further indicated he never saw the property owners prior to the accident. See Lazo v. Ricci, supra; Rodriguez v. Mendlovits, supra.
On the day of the accident, the principals of Kiley Family were out of the country.
Accordingly, no triable issue of fact was raised as it relates to Labor Law § 241(6) and the Plaintiffs' complaint is dismissed. See Campanello v. Cinquemani, 179 A.D.3d 763 (2d Dept. 2020); Sanders v. Sanders-Morrow, supra; Dasilva v. Nussdorf, supra.
Labor Law § 200 codifies the common-law duty of owners or of general contractors to maintain a safe place to work. See Grasso v. New York State Thruway Auth., 159 A.D.3d 674 (2d Dept. 2018); Banscher v. Actus Lend Lease, LLC, 132 A.D.3d 707 (2d Dept. 2015); Zastenchik v. Knollwood Country Club, 101 A.D.3d 861 (2d Dept. 2012). A property owner or general contractor will only be liable under Labor Law § 200 for dangerous or defective equipment that it did not supply if it possessed the authority to supervise or to control the means and the methods of the work. See Davies v. Simon Prop. Group, Inc., supra; Moscati v. Consolidated Edison Co. of N.Y., Inc., supra; Grassso v. New York State Thruway Auth., supra). The requisite supervision or control to impose liability under Labor Law § 200 exists when "the property owner bears responsibility for the manner in which the work is performed". Moscati v. Consolidated Edison Co. of N.Y., Inc., supra at 720; see Grasso v. New York State Thruway Auth., supra; Marquez v. L & M Dev. Partners, Inc., 141 A.D.3d 694 (2d Dept. 2016). Evidence of mere general supervisory authority to oversee the progress of the work and to inspect the work product is insufficient to impose liability under this section of Labor Law. See Pchelka v. Southcroft, LLC, 178 A.D.3d 836 (2d Dept. 2019); Lazo v. Ricci, supra; Lombardi v. City of New York, 175 A.D.3d 1521 (2d Dept. 2019).
The Kiley Family established their prima facie entitlement to summary judgment dismissing the claims for violation of Labor Law § 200 and common-law negligence against them. They demonstrated, prima facie, that they did not have the authority to control or to supervise the method or manner in which Plaintiff's work was performed. See Sanders v. Sanders-Morrow, 177 A.D.3d 920 (2d Dept. 2019]; Kearney v. Dynegy, Inc., 151 A.D.3d 1037 (2d Dept 2017); Zupan v. Irwin Contr., Inc., 145 A.D.3d 715 (2d Dept. 2016). As previously indicated, both Kiley Family and Plaintiff's submissions demonstrated, prima facie, that they never communicated with each other prior to the accident; Plaintiff further indicated he never saw the property owners prior to the accident. See Lazo v. Ricci, supra; Rodriguez v. Mendlovits, supra.
On the day of the accident, the principals of Kiley Family were out of the country.
Accordingly, no triable issue of fact was raised as it relates to Labor Law § 200 and common law negligence claims and the Plaintiffs' complaint is dismissed. See Campanello v. Cinquemani, 179 A.D.3d 763 (2d Dept. 2020); Sanders v. Sanders-Morrow, supra; Dasilva v. Nussdorf, supra.
The motion by Kiley Family for summary judgment dismissing the complaint against it is granted in its entirety. Defendant - Koral Bros. , Inc.
As explained, supra, 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. See Rizzuto v. L.A. Wenger Contr. Co., supra; Wass v. County of Nassau, supra; Rodriguez v. 250 Park Ave., LLC, supra. To impose liability under this section of Labor Law, a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case. See Graziano v. Source Bldrs. & Consultants, LLC, supra; Ortega v. Roman Catholic Diocese of Brooklyn, N.Y., supra; Moscati v. Consolidated Edison Co. of N.Y., Inc., supra. The Industrial Code section allegedly violated must set forth a specific safety standard. See Rodriguez v 250 Park Ave., LLC, supra; Zaino v. Rogers, supra; Aragona v. State of New York, supra.
In addition to owners and general contractors providing adequate protection for their workers, Labor Law § 241(6) requires compliance with the safety rules and regulations promulgated by the Commissioner of the Labor Department and found in the Industrial Code. See Rizzuto v. L.A. Wenger Constr. Co, supra; Ross v Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494 (1993). Thus, to sustain a cause of action under Labor Law § 241(6), a plaintiff must allege a breach of an Industrial Code (12 NYCRR) regulation, which sets forth a "specific" standard of conduct applicable to the circumstances of the accident and was the proximate cause of his injuries. Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 501-502; Keener v Cinalta Constr. Corp., 146 AD3d 867, 45 NYS3d 179 [2d Dept 2017]).
Plaintiff's Labor Law § 241(6) claim remains viable. Plaintiff's Labor Law § 241(6) claim is premised upon violations of 12 NYCRR 23-1.7 (e)(1) and (2); and 23-2.1(a) and (b).
12 NYCRR 23-1.7 (e) is sufficient to serve as a predicate for liability under Labor Law § 241(6). See Picchione v. Sweet Constr. Corp., 60 A.D.3d 510 (1st Dept. 2009); Herman v. St. John's Episcopal Hosp., 242 A.D.2d 316, 316 - 317 (2d Dept. 1997); McDonagh v. Victoria's Secret, Inc., 9 A.D.3d 3945, 396 (2d Dept. 2004). Moreover, this regulation is applicable to Plaintiff's accident, as it unequivocally imposes an affirmative duty that all passageways be kept from obstructions or conditions which could cause tripping. 12 NYCRR 23-1.7(3)(1).
Here, a question of fact exists as to whether the area where the Plaintiff, and others, were using to transport the cabinets inside was a passageway under the meaning of 12 NYCRR 23-1.7(e)(1). Similarly, a question of fact exists as to whether the stack of lumber is considered building materials under the meaning of 12 NYCRR 23-2.1(a). See also Costa v. State of New York, 123 A.D.3d 648, 648 - 649 (2d Dept. 2014) (Finding a question of fact existed as to a violation of 23-2.1(a) when plaintiff stepped on a stack of wood). Thus, as one of the Industrial Code regulations cited by Plaintiff is both sufficiently specific and applicable and raises a question of fact, Koral Bros. is not entitled to summary judgment dismissing plaintiff's Labor Law § 241 (6) claim.
Finally, Plaintiff's Labor Law § 200 claim also remains viable.
As explained, supra, Labor Law § 200 codifies the common-law duty of owners or of general contractors to maintain a safe place to work. See Grasso v. New York State Thruway Auth., supra; Banscher v. Actus Lend Lease, LLC, supra; Zastenchik v. Knollwood Country Club, supra. There are two main types of liability under this section of Labor Law: (1) injuries caused by dangerous or defective conditions at the work site, and (2) injuries caused by dangerous or defective equipment at the work site. See Davies v. Simon Prop. Group, Inc., 174 A.D.3d 850 (2d Dept. 2019); Moscati v. Consolidated Edison Co. of N.Y., Inc., 168 A.D.3d 717 (2d Dept. 2019; Grasso v New York State Thruway Auth., supra). The statute applies to general contractors who exercise control or supervision over the work causing the injury or who either created a dangerous conditions or had actual or constructive knowledge of such condition. Rizzuto v. L.A. Wenger Constr. Co., supra.
Here, a question of fact as to whether Koral Bros. directed the means and methods of Plaintiff's work, including but not limited to directing the foreman for East End Country Kitchens where to park the box truck to unload the cabinetry. Similarly, there is a question of fact as to the alleged dangerous condition of the dirt driveway and whether Koral Bros. had actual or constructive notice of its condition, which includes the tire rut/depression.
The motion by Koral Bros. for summary judgment dismissing the complaint against it is denied in its entirety.
Accordingly, it is hereby
ORDERED that the motion by Defendant The Kiley Family LLC for summary judgment dismissing the complaint against it is granted; and it is
ORDERED that the motion by Koral Bros., Inc. for summary judgment dismissing the complaint against it is denied. Dated: May 12, 2020
/s/_________
CHERYL A. JOSEPH
A.J.S.C.