Opinion
Index No. 102474/2011
01-06-2014
JHON PIZARRO, Plaintiff v. JEFFREY LIGNELLI and DENNIS JAMES BOYLE, INC., Defendants DENNIS JAMES BOYLE, INC., Third Party Plaintiff v. COMPLETE COPPER WORKS, INC., Third Party Defendant
For Plaintiff Holly Ostrov Ronai Esq. Ronai & Ronai, L.L.P. For Defendant Lignelli Michael F. Harris Esq. Goldberg Segalla LLP For Defendant Dennis James Boyle, Inc. George A. Freitag Esq. For Third Party Defendant Complete Copper Works, Inc. Richard A. Gash Esq. and Mayya S. Gotlib Esq. Mintzer Sarowitz Zeris Ledva & Meyers, LLP
DECISION and ORDER
APPEARANCES:
For Plaintiff
Holly Ostrov Ronai Esq.
Ronai & Ronai, L.L.P.
For Defendant Lignelli
Michael F. Harris Esq.
Goldberg Segalla LLP
For Defendant Dennis James Boyle, Inc.
George A. Freitag Esq.
For Third Party Defendant Complete Copper Works, Inc.
Richard A. Gash Esq. and Mayya S. Gotlib Esq.
Mintzer Sarowitz Zeris Ledva & Meyers, LLP
LUCY BILLINGS, J.:
Plaintiff sues defendants, for personal injuries he sustained September 21, 2010, while renovating defendant Lignelli's premises as an employee of third party defendant Complete Copper Works, Inc., a subcontractor for defendant Dennis James Boyle, Inc., retained by Lignelli. Plaintiff claims defendants' violations of New York Labor Law §§ 200, 240(1), and 241(6) and ordinary negligence.
Lignelli moves for summary judgment dismissing the complaint and cross-claims by co-defendant corporation Dennis James Boyle, Inc., against Lignelli, relying on the exemption from liability under the Labor Law for owners of one and two-family dwellings, when the owner contracts for, but does not supervise, direct, or control the construction to which the Labor Law applies. C.P.L.R. § 3212(b); N.Y. Labor Law §§ 240(1), 241; Guryev v. Tomchinsky, 20 N.Y.3d 194, 198 (2012); Affri v. Basch, 13 N.Y.3d 592, 595 (2009); Reinoso v. Biordi, 105 A.D.3d 491, 492 (1st Dep't 2013); Thompson v. Geniesse, 62 A.D.3d 541 (1st Dep't 2009). Plaintiff cross-moves to join defendant Jeffrey Lignelli's wife Catherine Lignelli as a defendant and to amend the complaint to add the same claims against her as are currently against her husband. C.P.L.R. §§ 1002(b), 3025(b). Plaintiff's cross-motion insofar as it seeks to preclude evidence is resolved by the stipulated Compliance Conference Order dated May 17, 2013.
Lignelli's motion requires the court to determine whether the homeowner exemption applies to plaintiff's work if plaintiff shows the homeowner supervised, directed, or controlled other work at the construction site, so as to rebut the exemption's application to that work, but does not show that involvement in the work plaintiff was performing when he was injured. The court concludes that the exemption does apply where plaintiff does not show defendant's supervision, direction, or control over the work plaintiff was performing when injured, requiring dismissal of his claims against Jeffrey Lignelli. As plaintiff does show sufficient involvement in the work at the construction site by nonowner Catherine Lignelli to claim her liability under Labor Law §§ 240(1) and 241(6), however, the court permits those claims to proceed against her.
I. JEFFREY LIGNELLI'S DEFENSE
A. The Parties' Evidence
No party disputes that defendant Jeffrey Lignelli owned the premises that plaintiff was renovating or that they constituted a single family dwelling. Nor does any party dispute that plaintiff was standing on a ladder without safety devices when it slipped out from under him, causing his fall approximately seven to eight feet to the ground and his injury. Defendant Lignelli simply attests that he did not instruct plaintiff how to perform his work or to use the ladder, exercised no responsibility for the use of the ladder or any attendant safety devices, and was unaware of any dangerous conditions under which plaintiff was working
In opposition, plaintiff, referring to his 17 days working on defendant Jeffrey Lignelli's premises, attests:
On all of the days I worked there either the male owner of the house or his wife, or both, were present on the property and inspected/supervised the construction work being done. On many occasions I saw the home owner and his wife giving instructions to our supervisor, and on at least two occasions they gave instructions directly to me and my coworkers on what work to do and/or how to do it.Aff. of Jhon Pizarro ¶ 5. Plaintiff's affidavit may indicate there was work at the construction site, even work plaintiff and his co-workers performed, that defendant homeowner Jeffrey Lignelli supervised and directed. Conspicuously, however, plaintiff does not reveal what instructions defendant Lignelli gave, on what work, how plaintiff or his co-workers were instructed to perform their work, or whether Lignelli was aware of any unsafe conditions affecting plaintiff's use of the ladder. Thus there is no connection between Lignelli's unspecified supervision or direction and the use of the ladder plaintiff was standing on or the type of work he was performing on the ladder when he fell.
B. Standards for Entitlement to the Homeowner Exemption
Jeffrey Lignelli's affidavit establishes a prima facie entitlement to the homeowner exemption. Lopez v. Pagan, 98 A.D.3d 436, 437 (1st Dep't 2012); Chambers v. Tom, 95 A.D.3d 666 (1st Dep't 2012); Thompson v. Geniesse, 62 A.D.3d at 541-42. To defeat it, plaintiff must show that defendant Lignelli directed or controlled "the manner of the performance" of plaintiff's work or his "use of materials" or equipment when plaintiff was injured: "how to do his job" or "what materials" or equipment "to use or not use," Garcia v. Martin, 285 A.D.2d 391, 393 (1st Dep't 2001), such that the "direction . . . was a material contributing factor in plaintiff's injury." Id. at 392. See Curatolo v. Postiqlione, 2 A.D.3d 480, 481 (2d Dep't 2003).
Here, plaintiff's account of defendant Lignelli's direction and control over his work provides no indication that Lignelli instructed plaintiff to use the ladder that failed or to use any ladder, supplied the ladder, was aware of any unsafe conditions affecting plaintiff's use of the ladder, or was involved any way with the work in progress when plaintiff fell from the ladder. Affri v. Basch, 13 N.Y.3d at 596; Chambers v. Tom, 95 A.D.3d 666; Bucklaew v. Walters, 75 A.D.3d 1140, 1141 (4th Dep't 2 010); McNabb v. Pot Bros., Inc., 64 A.D.3d 1237, 1239 (4th Dep't 2009). See Lopez v. Pagan, 98 A.D.3d at 437; Thompson v. Geniesse, 62 A.D.3d at 542; Ledwin v. Auman, 60 A.D.3d 1324, 1325 (4th Dep't 2009); Pascarell v. Klubenspies, 56 A.D.3d 742 (2d Dep't 2008). Nor does plaintiff suggest that he was assisting a co-worker or following the direction of his supervisor to whom Lignelli had given an instruction regarding the use of a ladder or the work in progress. See Rodriguez v. Gany, 82 A.D.3d 863, 864 (2d Dep't 2011). The fact that Lignelli was involved in work unrelated to the work plaintiff was performing when he fell does not deprive Lignelli of the homeowner exemption for the work plaintiff was performing. Reinoso v. Biordi, 105 A.D.3d at 492; Sheehan v. Gong, 2 A.D.3d 166, 169-70 (1st Dep't 2003); Bucklaew v. Walters, 75 A.D.3d at 1141; Gittins v. Barbaria Constr. Corp., 74 A.D.3d 744, 745 (2d Dep't 2010). See Affri v. Basch, 13 N.Y.3d at 596; McNabb v. Pot Bros., Inc., 64 A.D.3d at 1239.
Although the homeowner exemption is unavailable as a defense to liability under Labor Law § 200 or for negligence, the standard for liability on these two bases is the same as for the exemption. Therefore, because defendant Lignelli has shown that he exercised no supervisory control over the activity that caused plaintiff's injury, and plaintiff has failed to show to the contrary, Lignelli is entitled to summary judgment dismissing all claims against him. C.P.L.R. § 3212(b); Affri v. Basch, 13 N.Y.3d at 596; Lopez v. Pagan, 98 A.D.3d at 438.
C. The Need for Disclosure
Plaintiff insists that further disclosure may uncover the relationship between defendants and the authority, duties, functions, and level of supervision and control defendants exercised over the renovation work. Defendant Jeffrey Lignelli's relationship to plaintiff's work when plaintiff was injured, what instructions Jeffrey Lignelli gave to plaintiff or his coworkers, on what work, how they were instructed to perform their work, or any other supervision, direction, or control Lignelli exercised related to plaintiff's or his co-workers' work, however, is within plaintiff's knowledge. Plaintiff does not suggest that this specific information is known only by his supervisor or other co-employees of third party defendant, his employer.
In sum, plaintiff points to nothing he might elicit from defendants that would establish any facts not already known by him. C.P.L.R. § 3212(f); Harlem Real Estate LLC v. New York City Economic Dev. Corp., 82 A.D.3d 562, 563 (1st Dep't 2011); Kent v. 534 East 11th Street, 80 A.D.3d 106, 114 (1st Dep't 2010); Griffin v. Pennoyer, 49 A.D.3d 341 (1st Dep't 2008); Global Mins. & Metal Corp. v. Holme, 35 A.D.3d 93, 103 (1st Dep't 2006). Therefore plaintiff has not shown that his need for disclosure on the issue of defendant Lignelli's involvement with plaintiff's work when plaintiff was injured is a reason to deny or postpone summary judgment to defendant Lignelli. C.P.L.R. § 3212(f); W & W Glass Svs., Inc. v. Admiral Ins. Co., 91 A.D.3d 530, 531 (1st Dep't 2012); Barnes-Joseph v. Smith, 73 A.D,3d 494, 495 (1st Dep't 2010); MAP Mar. Ltd. v. China Constr. Bank Corp., 70 A.D.3d 404, 405 (1st Dep't 2010); Brown v. Bauman, 42 A.D.3d 390, 393 (1st Dep't 2007) . II. PLAINTIFF'S JOINDER OF CATHERINE LIGNELLI
Plaintiff does not seek to join defendant Jeffrey Lignelli's wife Catherine Lignelli as a co-owner of the premises, nor does any other party claim she owned the premises plaintiff was renovating. Her spousal relationship to the owner does not create the requisite legal or beneficial interest in the premises for purposes of liability under Labor Law §§ 240(1) and 241(6). E.g., Westgate v. Broderick, 107 A.D.3d 1389, 1390 (4th Dep't 2013); Fisher v. Coghlan, 8 A.D.3d 974, 975-76 (4th Dep't 2004). Concomitantly, she may not avail herself of the homeowner exemption. Reinoso v. Biordi, 105 A.D.3d at 492; Westgate v. Broderick, 107 A.D.3d at 1390; Fisher v. Coqhlan, 8 A.D.3d at 975. See Bruce v. Lawrence, 303 A.D.2d 616, 617 (2d Dep't 2003).
A. Permissible Claims
Plaintiff's affidavit regarding Catherine Lignelli's supervision and direction of work at the construction site nonetheless raises an inference that the owner delegated his authority to supervise, direct, and control the construction to her and that she acted with his full authority and thus functioned as the owner's agent under Labor Law §§ 240(1) and 241(6) or as his general contractor. Reinoso v. Biordi, 105 A.D.3d at 492; Fisher v. Coghlan, 8 A.D.3d at 975-96; Bruce v. Lawrence, 303 A.D.2d at 617. If in fact she acted with the owner's full authority, she is subject to the owner's statutory duties, but as a nonowner is still not entitled to the homeowner exemption. Reinoso v. Biordi, 105 A.D.3d at 492; Fisher v. Coghlan, 8 A.D.3d at 975-96. See Bruce v. Lawrence, 303 A.D.2d at 617.
Moreover, the denial by Dennis James Boyle, Inc., that it was hired or functioned as the general contractor and the absence of any written contract imposing the duties of a general contractor supports the inference that Catherine Lignelli filled that role. Although Jeffrey Lignelli attests that she was not his agent or general contractor, particularly given his minimization of his role at the construction site, he does not establish his competence to attest to all her actions and her full scope and degree of involvement there. There is no affidavit or deposition testimony from her in opposition to plaintiff's cross-motion, but such evidence, in any event, only would create a factual issue, given her nonownership versus her husband's homeownership, as well as the standard to be applied to a motion to amend the complaint and join a defendant versus a motion for summary judgment. McGhee v. Odell, 96 A.D.3d 449, 450 (1st Dep't 2012); MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500 (1st Dep't 2010); Pier 59 Studios, L.P v. Chelsea Piers, L.P., 40 A.D.3d 363, 366 (1st Dep't 2007); Thompson v. Cooper, 24 A.D.3d 203, 205-206 (1st Dep't 2005). See Fellner v. Morimoto, 52 A.D.3d 352, 353 (1st Dep't 2008); Leff v. Benihana of Tokyo, 304 A.D.2d 350, 351 (1st Dep't 2003); Stone Setting v. Crow and Sutton Ass'n, Inc., 46 A.D.3d 784, 786 (2d Dep't 2007).
Plaintiff thus pleads a claim that Catherine Lignelli is liable for the failure of his ladder and the absence of safety devices to protect against his fall under Labor Law §§ 240(1) and 241(6). Since defendants do not suggest any prejudice to them if the court permits plaintiff to add Labor Law §§ 240(1) and 241(6) claims against Catherine Lignelli, the court permits him to serve and file an amended summons and complaint to that effect. McGhee v. Odell, 96 A.D.3d at 450-51; Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504-505 (1st Dep't 2011); Jacobson v. McNeil Consumer & Specialty Pharms., 68 A.D.3d 652, 654 (1st Dep't 2009); Solomon Holding Corp. v. Golia, 55 A.D.3d 507 (1st Dep't 20 08). See Fellner v. Morimoto,' 52 A.D.3d at 353; Leff v. Benihana of Tokyo, 304 A.D.2d at 351; Stone Setting v. Crow and Sutton Ass'n, Inc., 46 A.D.3d at 787.
B. Impermissible Claims
Despite the lenient standard for amendments to a complaint, plaintiff still bears the burden to demonstrate the merits of his proposed claims for relief through admissible evidence. Greentech Research LLC v. Wissman, 104 A.D.3d 540, 541 (1st Dep't 2013); MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d at 5 00; Humphreys & Harding, Inc. v. Universal Bonding Ins. Co., 52 A.D.3d 324, 326 (1st Dep't 2008); Shulte, Roth & Zabel, LLP v. Kassover, 28 A.D.3d 404, 405 (1st Dep't 2006). While plaintiff need not prove his proposed claims at this stage, he still must show the viability of his proposed claims, by alleging their elements in a proposed verified amended complaint or supporting them with other admissible evidence. MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d at 499-500; Humphreys & Harding, Inc. v. Universal Bonding Ins. Co., 52 A.D.3d at 326; Pier 59 Studios, L.P v. Chelsea Piers, L.P., 40 A.D.3d at 366, Sabo v. Alan B. Brill, P.C., 25 A.D.3d 420, 421 (1st Dep't 2006).
Under this standard, for the same reasons that defendant Jeffrey Lignelli is entitled to the homeowner exemption with respect to the work plaintiff was performing when he fell, plaintiff fails to plead a claim of Catherine Lignelli's liability under Labor Law § 200 or her ordinary negligence. Reinoso v. Biordi, 105 A.D.3d at 492; Fisher v. Coghlan, 8 A.D.3d at 977. See Affri v. Basch, 13 N.Y.3d at 596; Lopez v. Pagan, 98 A.D.3d at 438. Plaintiff's affidavit regarding Catherine Lignelli's supervision and direction of the construction work is identical to his allegations regarding Jeffrey Lignelli' s supervision and direction. She supervised and gave instructions on work at the construction site, including work plaintiff and his co-workers performed, but the allegations do not suggest the substance of her instructions, on what work, or how plaintiff or his co-workers were instructed to perform their work. There is no more connection between Catherine Lignelli's unspecified supervision or direction and the use of the ladder plaintiff was standing on or the work he was performing on the ladder when he fell, than between Jeffrey Lignelli's actions and plaintiff's work at the relevant time.
III. CONCLUSION
For all the reasons explained above, the- court grants defendant Jeffrey Lignelli's motion for summary judgment dismissing all claims against him based on the exemption from liability under New York Labor Law §§ 240 (1) and 241 for owners of single family dwellings and the similar standard for liability under Labor Law § 200 and for negligence. C.P.L.R. § 3212(b). The court grants plaintiff's cross-motion to join Catherine Lignelli as a defendant and to amend the complaint to add claims against her under Labor Law §§ 240(1) and 241(6), similar to the claims originally alleged against Jeffrey Lignelli, according to plaintiff's proposed amended complaint. C.P.L.R. §§ 1002(b), 3025(b). The court denies plaintiff's cross-motion insofar as it seeks to amend the complaint to add claims against her under Labor Law § 200 or based on her negligence.
Plaintiff shall serve and file a supplemental summons and amended complaint as permitted above within 2 0 days after service of this order with notice of entry. C.P.L.R. §§ 305(a) and (c). This decision constitutes the court's order.
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LUCY BILLINGS, J.S.C.
UNFILED JUDGMENT
This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry. counsel or authorized representative must appear in person at the