This motion, by defendant, Michael Angelone d/b/a Michael Angelone, P.E., LLC, pursuant to CPLR 3212, for an Order granting summary judgment dismissing the separate complaints of the plaintiffs, Cevero Velasquez, as Administrator of the Estate of Santos Alonso Garcia Velasquez, and Paulina Velasquez, and Raul Alvarenga Bonilla, and all [*2]cross claims, and for an award of attorneys' fees pursuant to CPLR 8303-a and/or 22 NYCRR 130-1.2 against plaintiffs and their counsel; and a cross-motion by defendants, Claudia Young Thompson and Bassett W. Thompson, pursuant to CPLR 3212, for an Order granting summary judgment dismissing plaintiffs' complaints are both determined as hereinafter set forth.

This action arises out of a construction accident. The plaintiff's decedent, Santos Alonso Garcia Velasquez (referred to herein as "decedent" or "Velasquez"), and plaintiff Jose Raul Alvarenga Bonilla ("Bonilla") were electrocuted by live electrical wires on November 14, 2004. The plaintiff Bonilla survived. The plaintiffs claim that they were, in the course of their employment performing construction work on metal scaffolding at premises located at 2140 Leighton Road, Elmont, New York. The plaintiffs came into contract with live electrical wires at a time when they believed that all electrical power was turned off at the premises" (Velasquez Complaint, ¶24; Bonilla Complaint, ¶8). Both plaintiffs sustained severe personal injuries and ultimately, Velasquez's injuries culminated in his death.

Velasquez and Bonilla both contend that defendants were negligent in failing to, inter alia, supply plaintiffs with a safe place to work and to comply with Labor Law §§200, 240 and 241. The movants, in turn, submit, inter alia, that as they did not exercise control or supervision over the work being performed at the house or create the allegedly dangerous condition which caused the accident - namely, erecting the scaffold near LIPA wires (Angelone Motion, Ex. D, ¶18) - the claims against them must be dismissed.

The defendants Bassett Thompson and Claudia Young Thompson (collectively referred to herein as the "Thompsons" or the "Homeowner defendants") are the owners of the single family residence where the work was being performed. Claudia testified at her deposition that in early January or February of 2004, she entered into a contract with defendant, Keith Gardner ("Gardner"), a local contractor, to conduct the work (ClaudiaTr., pp. 28-29).

It is undisputed that the general contractor on the Thompson project, Keith Gardner, hired an unlicensed professional architect, Ade Adesino, to draw up plans for the extension (Angelone Motion Aff In Supp., ¶12; Angelone Aff . ¶15). Adesino is a professional architect but is not licensed to submit architectural drawings to municipalities in New York State. As such, Ade Adesino, sought the services of the defendant Michael Angelone d/b/a Michael Angelone, P.E., LLC (referred to herein as "Angelone LLC") to review, approve and submit the plans that Adesino prepared to the Town of Hempstead for a building permit.

Michael Angelone, a professional engineer and the sole principal shareholder of [*3]the defendant, Angelone LLC, states in his affidavit that he was hired by Ade Adesino to "perform services involving the approving and certifying of construction drawings for a second floor dormer at 2140 Leighton Road" (Angelone Aff., ¶4).

In fact, Michael Angelone plainly noted directly on Ade Adesina's plans and drawings that he was not retained for the supervision of the project or to actually file for and obtain the required approvals and permits for the project; rather, Angelone explicitly noted that he was retained merely to certify the drawings to obtain the initial building permit. He made clear that he was retained solely to review and approve the plans for structural sufficiency and compliance with local codes so that they could be submitted for a building permit (Motion, Ex. E). Upon completion of his review and approval of the plans, Angelone returned them to Ade who, in turn, submitted them to the Town of Hempstead for a building permit.

The construction of the second floor commenced in July 2004 (Bassett Tr., p. 21) and a permit issued on August 16 (Angelone Motion, Exs. I & J). At his deposition, Bassett Thompson testified that he did not get involved at all once the work began, merely adding "opinions here and there" (Bassett Tr., p. 11). Similarly, Claudia testified that she left the details of the project to the experts she hired. Claudia testified that during the course of construction, Keith Gardner was initially present all the time at the house, and that his brother, Ike, was there regularly as well. She further stated that there were many other people working at the job site under the supervision and control of Keith; however, she only spoke to Keith and his brother with regard to the work being done on the house.

On September 9, 2004, Keyspan personnel, whom the Homeowner defendants believed to be associated with LIPA, visited the Thompson residence. Keyspan representative, Nicola Giorlando, testified at his deposition that he received a report of a wooden scaffold being in the proximity of LIPA wires at the Thompson residence (Giorlando Tr., p. 41). Giorlando stated that on September 9, he spoke with the Thompsons concerning both the proximity of LIPA's electrical wires and the wooden scaffold, as well as the proximity of the wires to the second floor addition. He also testified that, during his discussion with the Thompsons and their contractor, Keith Gardner, he provided an in-depth explanation of the hazards posed by working in close proximity to the high voltage electrical wires. He also explained that the scaffold had to be removed after Keyspan crews de-energized the primary wires.

Claudia Thompson testified that although the "LIPA man" spoke primarily to her contractor, Keith, she recalled that he had indicated to her that "your house looks as if it might be too close to our lines" (Id., p. 62) and that "[she] might have to move the lines" (Id., p. 63). Bassett Thompson also testified that he was told that the wires were too close [*4](Bassett Tr., p. 29).

Giorlando testified at his deposition that he educated the Thompsons concerning the danger of the wires. He informed them that the clearance between the second floor addition and the LIPA wires might not be sufficient and specifically advised that no work should be done on the side of the house near the LIPA wires until the clearance issues were resolved (Giorlando Tr., pp. 81-82).

Claudia testified that she recalls that her contractor, Keith, called her over and in his presence, the "LIPA man" told her that they might have to move the wires, and that she would be charged for the cost (Claudia Tr., p. 188). The Thompsons both testified that at no time did LIPA/Keyspan personnel ever indicate to them that they had to stop work at the job site until something was done in regard to the power lines (Id., p. 63). Claudia also stated that she did not recall the "LIPA men" discussing safety concerns with her (Id. .p. 247). Neither she nor her husband recalled the LIPA men telling them that the wires were high voltage wires or that they could be dangerous if someone made contact with them (Id., pp. 247, 263; Bassett Tr., p.31-32).

Claudia also testified that she overheard the "LIPA men" discussing the boards or "sticks" that were protruding from her house - i.e., the makeshift scaffold. She heard the Keyspan representative tell Keith Gardner to take the scaffold down. Bassett Thompson testified that before he left the house on the morning of September 9th, the scaffolding had in fact been removed (Bassett Tr., p.30).

Claudia stated that from September 9 through November 14, 2004, she did not have any further dealings or conversations with anyone from LIPA nor did she ever discuss LIPA again with her contractor. Work on the house continued and nothing was done with regard to the wires (Bassett Tr., p. 36-37). The Thompsons did not receive any written communication regarding the necessity to move the LIPA wires (Id., p.66; BassettTr., p. 143).

On the morning of the accident on November 14, 2004, Claudia arrived from work after completing a night shift as a nurse in Manhattan and went to sleep. She stated that she did not see any scaffolding erected around her house that day nor did she see anyone erecting any type of scaffolding. Bassett also testified that he does not recall seeing any type of scaffolding set up around the house on the morning of the accident (Bassett Tr., pp.39, 53). He heard the men working in the morning and at some point in the afternoon he heard a buzzing sound outside and ran outside to investigate (Bassett Tr., p.45). When he went outside, he saw the scaffolding and leaves burning and the plaintiffs lying on the driveway of the Gibson home (Bassett Tr., p.53). [*5]

The Thompsons initially testified that on the night of the accident at issue, LIPA came to the premises and moved the wires (Claudia Tr., p. 117; Bassett Tr., p.89-90, 151). However later, Claudia and Bassett both testified that it was not until late summer 2005 that a company came and moved the LIPA wires underground (Claudia Tr., p. 182;

VELASQUEZ, et al v LIPA, et alIndex no. 6123/05

Bassett Tr., p. 93). Claudia received a bill from LIPA either dated December 6, 2004 or December 9, 2004 for having to move the power lines underground (Claudia Tr., p. 122; Bassett Tr., p. 93). Ultimately, in 2005, the Thompsons received a Certificate of Completion in the mail from the Town of Hempstead (Id., p. 163).

On February 26, 2007, all parties appeared for a conference at which time this Court extended the defendants' time to file a motion for summary judgment to May 14, 2007. Defendant, Angelone LLC, timely filed this motion for summary judgment. The Homeowner defendants prepared the instant cross motion and apparently at their request, defendant Angelone LLC adjourned its motion. This Court subsequently provided a return date of July 20, 2007. Based on the timely motion filed by the attorney for defendant, Angelone LLC, the Homeowner defendants' cross motion is hereby deemed timely (CPLR 3212[a]; see also, Dugas v. Bernstein, 2004 WL 2255128[Sup.Ct. New York 2004]).

As against defendant, Angelone LLC, plaintiffs Velasquez and Bonilla, both contend that defendant was negligent in failing to (1) supply plaintiffs with a safe place to work, (2) comply with Labor Law§§ 200, 240 and 241, (3) properly maintain and inspect the above ground electrical lines, (4) provide engineering plans in accordance with good and common engineering practice, (5) prepare plans so as to ensure that the structure was not in dangerous close proximity to the above ground electrical lines, and (6) observe the condition and location of the above ground electrical lines for the purpose of using that information in preparing engineering plans.

Summary judgment is the procedural equivalent of a trial (Capelin Assoc. Inc. v Globe Mfg. Corp ., 34 NY2d 338 [1974]). It is a drastic remedy that will only be granted when the proponent establishes that there are no triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact, or demonstrate an acceptable excuse for its failure to do so (Alvarez v. Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient [Zuckerman v. City of New York, supra]. [*6]

Insofar as plaintiffs' claims against defendant, Angelone, purport to rest upon Labor Law §§240 and 241, they must be dismissed as a matter of law by reason of the express statutory exemption from liability for "professional engineers... [and] architects... who do not direct or control the work for activities other than planning and design" (Labor Law 240[1] and 241[9]; see, Gonzalez v. Pon Lin Realty Corp., 34 AD3d 638, 2nd Dept., 2006).

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Turning to plaintiffs' Labor Law § 200 and common law negligence claims against defendant Angelone LLC, Labor Law § 200 "merely codifies the common-law duty of an owner or general contractor to provide a safe place of work" (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; see also, Cun-En Lin v. Holy Family Monuments, 18 AD3d 800,2nd Dept., 2005; Haider v. Davis, 35 AD3d 363,2nd Dept., 2006). The statute applies to owners and contractors who exercise control or supervision over the work being performed, or who have either created a dangerous condition or had actual or constructive notice of such condition (Lombardi v. Stout, 80 NY2d 290, 294-95 [1992]; Fenton v. Monotype Sys., 289 AD2d 194, 2nd Dept., 2001).

The defendant Angelone LLC claims, inter alia, that it does not fall within either category because as the design architect and engineer on the project, its duties did not involve job safety or control of the work force. Further, defendant argues that the evidence shows that the plaintiffs themselves performed an act of intervening negligence by constructing their metal scaffold within 10 feet of high tension electrical wires in the first place.

Specifically, defendant Angelone LLC, submits the affidavit of its principal, Michael Angelone, his deposition transcript and the architectural drawings, all of which confirm that Angelone LLC was merely hired to review, approve and certify the plans to be submitted to the Town Building Department. The plans clearly state that Angelone LLC had not been retained for the supervision of the project and was not responsible for obtaining the required approvals and permits (Motion, Ex. E). The plans also explicitly state:

4.THE CONTRACTOR SHALL VERIFY AND BE RESPONSIBLE FOR ALL FIELD DIMENSIONS AND EXISTING CONDITIONS. THE CONTRACTOR SHALL REPORT ANY DISCREPANCIES IN THE EXISTING CONDITIONS FROM THOSE SHOWN ON THE CONTRACT DOCUMENTS TO THE ARCHITECT/ENGINEER OF RECORD. [*7]

Based on the above, this Court finds that defendant, Angelone LLC, has sufficiently demonstrated that it did not exercise supervisory control over the plaintiff's work, and that it neither created nor had actual or constructive knowledge of the allegedly dangerous condition (Hatfield v. Bridgedale, LLC, 28 AD3d 608, 2nd Dept., 2006; Lopez v. Port Auth. Of NY & NJ, 28 AD3d 430, 2nd Dept., 2006; Brown v. Brause Plaza, LLC., 19 AD3d 626, 628, 2nd Dept., 2005).

Moreover Angelone LLC has also demonstrated that it was not responsible for existing conditions unless the contractor reported other problems or conditions from the job site (Angelone Aff., ¶14). Plaintiffs' arguments, that defendant Angelone LLC was also negligent in failing to provide engineering plans that were in accordance with good

practice and not too close to electrical wires, and that Angelone's failure to visit the construction site to observe that the second story dormer was in close proximity to overhead electrical wires constitutes negligence, are unavailing. Angelone has sufficiently demonstrated that neither of those duties are the responsibility of the engineer who was retained solely to review and approve structural drawings for this project. It is undisputed that Ade Adesino was the architect retained by the general contractor to draw up the plans for the extension. Adesino visited the site, observed the actual conditions at the site and drew the plans for the project. Defendant, Angelone LLC was hired solely to review the plans for structural integrity and conformance with the building codes, and to certify and stamp the plans for submission to the Town. Once the building permit issued, and defendant was not given notice of any dangerous or defective condition that required a change to the drawings, defendant had no additional duty.

In light of Angelone's showing of entitlement to judgment as a matter of law, the burden shifts to the plaintiffs to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial (Alvarez v. Prospect Hosp., supra).

The only opposition submitted by both plaintiffs is the affirmations of their respective attorneys who have no actual knowledge of the facts. It is well established that in order to defeat a motion for summary judgment, a party must come forward with evidentiary proof in admissible form sufficient to raise triable issues of fact (Alvord & Swift v. Muller Constr. Co., 46 NY2d 276 [1978]; Capelin Assoc. v. Globe Mfg. Corp., supra at 342). An affirmation of counsel who has no personal knowledge of the facts, is insufficient, as a matter of law (see, Zuckerman v. City of New York, supra; Dicupe v. City of New York , 124 AD2d 542, 543, 2nd Dept., 1986). Neither plaintiff provides affidavits from parties with first-hand knowledge, affidavits from experts or any other testimony in admissible form to raise a triable issue (Zuckerman v. City of New York, supra). [*8]

Moreover, even if this Court were to consider the arguments advanced by plaintiffs' counsel, they still fall short of raising a triable issue. Plaintiffs argue that the defendant, Angelone LLC's reliance upon the knowledge, experience, skill and plans of an unlicensed architect when ultimately approving his design plans constituted negligence.

Michael Angelone knew Ade Adesino was not licensed (Angelone Tr., pp. 19-21). However, plaintiffs have failed to establish that the professional practice of review by a licensed architect requires more than review of structural integrity. They have submitted no expert evidence on this issue.

Similarly, plaintiffs' argument that Angelone had a non-delegable duty to ensure

plaintiffs' safety and that his approval of the plans proximately caused the injuries to the plaintiff is meritless. It is well settled that in order to make out a prima facie case based on Labor Law§ 200 and common law negligence, plaintiff must demonstrate that Angelone went beyond the function of an architect. There must be evidence that Angelone directed workers at the site as to how to perform the injury producing work, that Angelone exercised supervisory control over the plaintiff's work, or that he either created or had actual or constructive knowledge of the allegedly dangerous condition (Zolotar v. Krupinski, 36 AD3d 802, 2nd Dept., 2007; Gonzalez v. Pon Lin Realty Corp., supra; Hatfield v. Bridgedale, LLC, supra). When an architect's activities on the project at issue do not extend beyond planning and design as in this case, there can be no liability imposed regarding construction safety issues (Boyd v. Lepera and Ward, 275 AD2d 562, 3rd Dept., 2000).

Based on the foregoing, where there are no material facts in dispute sufficient to require a trial, this Court herewith grants defendant Angelone LLC's motion for summary judgment dismissal of plaintiffs' complaint.

In its Verified Answer, defendant, Michael Angelone, P.E., LLC., also imposes a counterclaim against both sets of plaintiffs alleging that the action against this defendant was wanton, willful and malicious, and as a result, it is entitled to seek attorneys' fees and litigation expenses.

CPLR 8303-a states in pertinent part:

§ 8303-a. Costs upon frivolous claims and counterclaims in actions to recover damages for personal injury, injury to property or wrongful death

(a) If in an action to recover damages for personal injury...is commenced...by a plaintiff...and is found, at any time during the proceedings...to be frivolous by the court, [*9]the court shall award to the successful party costs and reasonable attorney's fees not exceeding ten thousand dollars.

Similarly 22 NYCRR 130-1.2 states in pertinent part:

Order awarding costs or imposing sanctions.

The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate.

Defendant Angelone LLC has not alleged facts sufficient to demonstrate that plaintiffs' conduct rose to the level of high moral culpability which must be reached in

order to support a claim for costs and/or sanctions (Sabol & Rice v. Poughkeepsie Galleria Co. , 175 AD2d 555, 556, 3rd Dept., 1991; cf. Walker v. Sheldon, 10 NY2d 401 [1961]). Thus, this Court finds no basis for the imposition of sanctions against the plaintiffs (CPLR 8303-a; Karnes v. City of White Plains, 237 AD2d 574, 2nd Dept., 1997), and such application is denied.

Homeowners' Cross Motion

Plaintiffs' complaint also alleges that the Homeowner defendants, Claudia and Bassett Thompson, are also subject to the Labor Law §§ 200, 240 and 241 and/or the OSHA Rules of the Labor Department and the common law duty of landowners.

Plaintiffs' claims based on Labor Law §§240 and 241 are dismissed at the outset, as a matter of law, by way of the express statutory exemption from liability for single family homeowners who do not direct or control the work that they contracted for (Labor Law §§ 240[1] and 241). The Court of Appeals has clearly and closely followed the Labor Law statutes holding that when a property owner exercises no supervision or control over the work being done at their premises, no liability attaches under the under Labor Law (Lombardi v. Stout, supra at 295 [Emphasis Added]). Thus, the only time a homeowner will be held liable under Labor Law §§240 and 241 is if they directed or controlled the work. The exemption is construed very strictly in favor of homeowners (Angelucci v. Sands, 297 AD2d 764,2nd Dept., 2002; citing Lombardi v. Stout, supra; Duarte v. East Hills Constr. Corp., 274 AD2d 493, 2nd Dept., 2000). Thus, the phrase "direct or control" is also construed strictly and refers to the situation where the owner supervises the method and manner of work (Miller v. Shah, 3 AD3d 521, 2nd Dept., 2004; citing Lombardi v. Stout, supra; Angelucci v. Sands, 297 AD2d 764, 2nd Dept., 2002). In the absence of any evidence, on the record, that the Thompson defendants in fact supervised the "method or manner of work", and insofar as neither plaintiff nor any [*10]co-defendants, including LIPA and Keyspan, contest the applicability of the single family homeowner exemption to the case at bar, defendants' motion for summary judgment dismissal of plaintiffs' Labor Law§§ 240 and 241 claims is granted.

Turning to plaintiffs' Labor Law §200 and common law negligence claims, the Homeowner defendants submit that summary judgment should be granted in their favor because they, as the owners, did not supervise or control the work nor did they have actual or constructive notice of the unsafe condition causing the accident (Torres v. Levy, 32 AD3d 845, 2nd Dept., 2006; citing Lombardi v. Stout, supra). The Court of Appeals in Lombardi held that "...where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under section 200 of the Labor Law" (Lombardi v. Stout, supra at 295).

The Homeowner defendants submit that it was their understanding that the workers that were present in their home, including the plaintiffs herein, were hired by Keith Gardner and that he had advised them prior to the commencement of construction that he was a licensed and insured contractor. It is undisputed that any instruction at all that the Thompsons may have given with regard to the work being performed at their home was given solely to the contractor, Keith Gardner, or to his brother Ike. As stated above, there is no evidence on this record that the Homeowner defendants supervised or controlled the work that was being performed on their home. Thus, the only claim is whether the Homeowner defendants also lacked actual or constructive notice of the alleged dangerous condition.

The dangerous condition was the proximity of the scaffold to LIPA wires (Angelone Motion, Ex. D, ¶18). It is undisputed that the scaffold was removed on September 9, 2004 when Keyspan/LIPA personnel visited the Thompson home. The Thompsons submit that they never saw any scaffolding erected around the house on the days leading up to the accident. Moreover, the Thompsons were told by the LIPA employees that if the wires were too close to the home, they would receive notice in writing. The Thompsons never received such notice. Having demonstrated their prima facie entitlement to judgment as a matter of law on plaintiffs' Labor Law §200 and common law negligence claims, the burden now shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact (Ayotte v Gervasio, 81 NY2d 1062 [1993]).

In opposition, co-defendants, LIPA and Keyspan, joined by plaintiff Velasquez, submit, inter alia, the testimony and affidavit of Nicola Giorlando, which confirm that he visited the Thompson house on September 9, 2004 and had detailed conversations with the Thompsons as well as their contractor, Keith Gardner, concerning the proximity of [*11]LIPA's electrical wires and the wooden scaffold he observed on that date. It is undisputed in this case that Claudia Thompson remembered being told on September 9, 2004 that her house was too close to the LIPA lines (Claudia Tr., p. 65). Moreover, Bassett Thompson testified that he was informed by his wife that she was educated by LIPA that those wires were high voltage (Bassett Tr., pp. 133, 137).

Based on the evidence and proof submitted by defendants, LIPA and Keyspan in opposing the Thompsons' cross motion for summary judgment, this Court finds that there exist material issues of fact as to whether the Thompsons had actual or constructive notice of the dangerous condition posed by the proximity between the second floor addition and

the LIPA high voltage wires. Accordingly, the Homeowner defendants' motion for summary judgment dismissal of plaintiffs' Labor Law §200 and common law negligence claims is herewith denied.

This shall constitute the decision and order of this Court.

DatedJ.S.C.