Opinion
112986/07.
Decided August 17, 2010.
In this personal injury action, defendant Paul J. Scariano, Inc. (PJS) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it. Defendant Richards Plumbing Heating Co., Inc. (Richards) cross-moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against it.
FACTUAL BACKGROUND
Plaintiff, Roberto Rogers (Rogers), alleges that he was injured when he tripped and fell over a bolt that was exposed when rubber matting was negligently removed from a playground that is part of Rutgers Houses, a housing complex owned and controlled by defendant New York City Housing Authority (NYCHA).
It is uncontroverted that NYCHA hired Richards to inspect, test and repair the fire standpipe and sprinkler systems at various NYCHA sites (Lucks Aff., Ex. E) and that, as part of its job, Richards would search for leaks based on instructions it received from the NYCHA's Fire Safety Unit. Moreover, it is undisputed that, based on a handshake agreement, Richards retained PJS to provide a backhoe and an operator at a daily rate, when needed, for Richards's jobs at NYCHA sites (Lucks Aff., Ex. G, at 12-15)
On January 22, 2007, Richards responded to an emergency call from NYCHA regarding a water leak in and around the basketball court in the playground at the Rutgers Houses (Lucks Aff, Ex. F, at 43-45). In order to locate the leak, certain rubber matting located in and around the basketball court had to be removed and, because the mats were very heavy, the backhoe supplied by PJS was used to remove the matting. Rogers alleges that Richards and PJS are liable in tort because their negligent act — allegedly failing to remove a bolt when the mats were removed — created the hazard that was the proximate cause of his injuries
ARGUMENTS
PJS contends that it merely supplied the backhoe and operator to Richards; that it was, in essence, a special employee of Richards and that Richards directed the use of the equipment and controlled the mat removal. PJS further argues that there is no evidence that it breached any duty it may have owed to Rogers, and therefore this claim must be dismissed as against PJS.
Co-defendant Richards takes the position that it performed its work at the direction of NYCHA, which supervised the removal of the mats. Richards claims that it did not supervise PJS regarding the mat removal. In addition, it argues that it had no duty to plaintiff and that it performed all of its duties pursuant to its contract with NYCHA and thus, this action must be dismissed as against Richards.
Co-defendant NYCHA opposes both the motion and the cross motion, claiming that there is a question of fact as to whether a bolt was negligently left protruding above ground level in the playground after the matting was removed and, if so, there is a question regarding which defendants, if any, are liable for such negligence.
Plaintiff also opposes the motion and cross motion on the ground that both the actions of PJS'S backhoe operator and the direction of Richards contributed to the creation of the dangerous condition that was the proximate cause of plaintiff's injuries. Alternatively, Rogers argues that there are questions of fact regarding which defendant, if any, might ultimately be held accountable for plaintiff's alleged injuries.
DISCUSSION
Summary judgment will be granted if it is clear that no triable issue of fact exists ( Alvarez v Prospect Hosp., 68 NY2d 320, 324). The burden is on the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law ( Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact ( Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d at 562). Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion ( Zuckerman v City of New York, 49 NY2d at 562).
PJS has not established its prima facie case because it failed to submit evidence demonstrating that it is entitled to judgment as a matter of law. PJS relies, in part, on the deposition of Robert Grant (Grant), a supervisor at Richards, who testified that Richards removed the matting because it was asked to do so by the NYCHA Fire Safety Unit (Lucks Aff., Ex. F at 52-54); that Richards used the PJS backhoe to remove the mats (Lucks Aff., Ex. F, at 57-58) and that he imagined that Roberts employees were telling other people what to do in terms of removing the matting (Lucks Aff., Ex. F, at 58). However, Roberts also testified that he did not know who, if anyone, directed the PJS employee regarding use of the backhoe to remove the mats and that he did not know who, if anyone, told the backhoe operator which mats to remove (Lucks Aff., Ex. F, at 92-94). This contradictory testimony creates questions of fact about who, if anyone, supervised PJS during the mat removal ( Hilts v Board of Educ. of Gloversville Enlarged School Dist. , 50 AD3d 1419, 1420 [3d Dept 2008][contradictory testimony raised a question of fact]) and, if anyone did supervise the backhoe operator, there is a question of fact as to what instructions, if any, were given to the backhoe operator regarding the mat removal. There is also a question about whether PJS followed those instructions ( see Marks v New York City Tr. Auth., 11 AD2d 993, 994 [1st Dept 1960], affd 13 NY2d 620).
Moreover, although PJS contends that the backhoe operator was effectively a special employee of Richards, there is a question of fact about the nature of the agreement between Richards and PJS regarding the equipment and the backhoe operator, and there is a question of fact about whether Richards exercised sufficient control over the backhoe operator such that the backhoe operator could be considered Richards's agent or employee ( Clemens v Brown , 69 AD3d 1197, 1200 [3d Dept 2010]); Melbourne v New York Life Ins. Co., 271 AD2d 296, 297 [1st Dept 2000][determination of employment status typically involves a question of fact]; see also Raben v Conde Nast Pubs. , 2 AD3d 117 [1st Dept 2003]).
In addition, if it is found that PJS acted as an independent contractor, there are questions of fact about whether it negligently created a dangerous condition that led to plaintiff's alleged injury ( Ramirez v BRI Realty, 2 AD3d 369, 369-370 [1st Dept 2003]]).
Defendant Richards has also failed to submit sufficient evidence to establish its prima facie case that it is entitled to judgment as a matter of law. In support of the cross motion, Richards relies on the testimony of its supervisor, Grant, and the testimony of George Martinez (Martinez), the NYCHA groundskeeper at Rutgers Houses, to demonstrate that Richards did not supervise or control the mat removal. However, as stated above, Grant's testimony was contradictory regarding Richards's role in supervising PJS and/or its role, generally, in the mat removal. Indeed, Grant testified that people from Richards removed the matting (Lucks Aff., Ex. F, at 52), that Richards "instructed" the mat removal (Lucks Aff., Ex. F, at 58) and that three of Richards's employees were on the job when the mats were removed (Lucks Aff., Ex. F, at 94). However, he also testified that he did not know who directed the backhoe operator in doing his job (Lucks Aff., Ex F, at 93). Thus, Grant's testimony creates a question of fact regarding Richards's role in the mat removal. Moreover, Martinez's testimony does not conclusively explain Roberts's role in the mat removal, nor does any other testimony or document establish that NYCHA instructed Richards in how to remove the subject matting. Rather, Martinez's testimony raises a question of fact about whether any bolts were left in the ground after the mats were removed (Ferrante Aff., Ex. A, at 88-89, 96-98).
In addition, if Richards did participate in the mat removal, there are questions about whether Richards's actions created or exacerbated the hazardous condition that allegedly caused plaintiff's injury ( Haracz v Cee Jay , Inc. 74 AD3d 1145 [2d Dept 2010]; Prenderville v International Serv. Sys., Inc. , 10 AD3d 334, 337 [1st Dept 2004][tort liability may be imposed where contractor who performs services pursuant to a contract negligently creates or exacerbates a dangerous condition so as to have launched an instrument of harm]). Accordingly, it is
ORDERED that defendant Paul J. Scariano, Inc.'s motion for summary judgment, is denied; and it is further
ORDERED that defendant Richards Plumbing Heating Co., Inc.'s cross motion for summary judgment, is denied; and it is further
ORDERED, that the parties are to proceed to mediation on September 23, 2010.