[*1]
Davis v Sheridan Homes, Inc.
2011 NY Slip Op 50691(U) [31 Misc 3d 1216(A)]
Decided on April 21, 2011
Supreme Court, Sullivan County
LaBuda, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 21, 2011
Supreme Court, Sullivan County


Andrew Davis and MONICA DAVIS, Plaintiffs,

against

Sheridan Homes, Inc. SEE THRU BLOCK, INC., ROBERT ESTEVA and LINDA M. SANDERS, Defendants.




2539-08



APPEARANCES:Finkelstein & Partners, LLP

1279 Route 300, PO Box 1111

Newburgh, New York 12551

By: Andrew L. Spitz, Esq.

Attorneys for Plaintiffs

Kelly & Meenagh, LLP

135 North Water Street, PO Box 1031

Poughkeepsie, New York 12602

By: John P. Meenagh, Jr., Esq.

Attorneys for Defendant Sheridan Homes, Inc.

Kelly & Leonard, LLP

199 Milton Avenue

Ballston Spa, New York 12020

By: Thomas E. Kelly, Esq.

Attorney for Defendant See Thru Block, Inc.

Carter, Conboy, Blackmore, Maloney & Laird, P.C.

20 Corporate Woods Boulevard

Albany, New York 12211

By: Brian D. Carr, Esq.

Attorneys for Defendants Esteva and Sanders

Frank J. LaBuda, J.



The plaintiff moves for partial summary judgment pursuant to CPLR 3212 and seeks a judgment on his Labor Law § 240 claim against defendant Sheridan Homes, Inc. ("Sheridan"). The defendants, Robert Esteva and Linda M. Sanders ("Homeowners") cross-move for summary judgment and seek the dismissal of the complaint and all pending cross-claims against them. The Homeowners also move for summary judgment on their cross-claim against Sheridan for breach of contract and for summary judgment on their cross-claims against Sheridan and See Thru Block for common law indemnification along with costs and attorney fees. The plaintiff and Sheridan oppose the motions of the Homeowners. The defendant See Thru Bloc, Inc. ("Block") cross moves for summary judgment and seeks the dismissal of the complaint. Block also seeks the denial of the Homeowner's indemnification summary judgment motion. The plaintiff cross-moves for an order pursuant to CPLR § 3217(b) authorizing a voluntary discontinuance of the action against Block. Sheridan and the Homeowners do not oppose Block's summary judgment motion.

FACTS


Plaintiff commenced this action for personal injuries he sustained in a fall on January 9, 2008 at real property located at Chapin Estates, 97 Homestead Trail, Bethel, New York pursuant to Labor Law §§ 200, 240 and 241. The real property was purchased in 2001 by the defendants Esteva and Sanders who reside in Montvale, New Jersey. On June 29, 2007 the Homeowners entered into a contact for the construction of a $800,000 custom built one family home with Sheridan. Sheridan is a residential home construction business. Sheridan and its principal, Bill Dashiell, acted as the project's general contractor. The contract allowed the Homeowners involvement in making decisions affecting the building of the home. The Homeowners retained David Chapin from Chapin Contracting and Management to serve as their representative with Sheridan on the project. Although the Homeowners hired Chapin, the Homeowners insisted that many decisions relating to the construction of the home be brought to their attention.

The contract permitted Sheridan to hire subcontractors for portions of the construction. Sheridan hired Block to perform masonry work. Block erected two six foot scaffolds near the chimney in the rear of the house. Block had stopped work before Christmas 2007 due to the weather. When Block left the project, it had secured the scaffold in a safe manner in compliance with OSHA standards with proper footings, supports and warnings. Block maintains it wrapped the scaffold with caution tape to keep [*2]people away from the scaffold.

Sheridan also hired Ellis Woodworking to perform exterior cedar siding work. John Ellis was the owner and was present at the job site regularly. Each day Mr. Ellis chose the work to be performed and personally supervised his employees. The plaintiff was employed by Ellis. It was understood by Sheridan that Ellis intended to use Block's scaffoding in installing siding on the house. On the date of the accident, Ellis instructed the plaintiff to use the scaffolding to perform soffit and fascia work on the exterior of the home. Plywood was placed over a deck and the scaffolding was erected on top of the plywood. The scaffold was not tied down or secured. The plaintiff used the scaffolding in his elevated work. When a co-worker climbed onto the scaffold, the scaffold shifted and punctured a hole in the plywood which caused the plaintiff to fall six feet from the scaffold and then fall another twelve feet.

Block alleges the scaffolding was moved from the chimney area to the rear of the home near the master bedroom so the Ellis workers could side that section of the home. Block claims he inspected the site afer the accident and determined the caution tape and the outriggers were removed and the planks on the scaffold were in different positions. Block claims the scaffold was moved back to its original position by the chimney after the accident. The plaintiff and the defendants are unable to determine who moved the scaffold.

The plaintiff maintains he was not provided with any safety measures at the elevated work site which would allow him to work in a safe and proper manner. Plaintiff alleges Sheridan, as the contractor, is liable pursuant to Labor Law § 240(1).

The Homeowners claim they are not liable to the plaintiff under Labor Law § 200 as they did not have control over the worksite, did not create the dangerous condition or had notice of the unsafe condition. The Homeowners also claim Labor Law §§ 240 and 241 specifically exempts the owners of one and two family homes from liability unless the owners directed or controlled the plaintiff's performance of the work at the time of the accident.

THE LAW


On a motion for summary judgment, the movant must establish by admissible proof, the right to judgment as a mater of law. [*3]Alvarez v Prospect Hospital, 68 NY2d 320 (1986). The burden shifts to the opponent of the motion to establish by admissible proof, the existence of genuine issues of fact. Zuckerman v City of New York, 49 NY2d 557 (1980). It is well established that on a motion for summary judgment, the court's function is issue finding, not issue determination. Barr v. County of Albany, 49 NY2d 557 (1980), and all evidence must be viewed in the light most favorable to the opponent to the motion. Davis v. Klein, 88 NY2d 1008 (1996).

In opposing a motion for summary judgment, one must produce evidentiary proof in admissible form . . .mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient Zuckerman v City of New York, 49 NY2d at 562). It is incumbent upon the non-moving party to lay bare his proof in order to defeat summary judgment. O'Hara v Tonner, 288 AD2d 513 (3rd Dept. 2001). Mere conclusionary assertions, devoid of evidentiary fact, are insufficient to raise a genuine triable issue of fact on a motion for summary judgment or is reliance upon surmise, conjecture or speculation. Banco Popular North America v. Victory Taxi Management, Inc., 1 NY3d 381 (2004).

LABOR LAW § 240 CLAIM AGAINST CONTRACTOR


The purpose of Labor Law § 240 governing scaffolding and other devices for use by employees is to better protect workmen engaged in dangerous employments and has been liberally construed by the courts to accomplish that beneficial purpose. Roche v. State, 45 AD2d 633 (3rd Dept. 1974), lv denied 36 NY2d 642 (1975). The purpose of the law is to protect workers by placing responsibility for safety practices at construction sites on owners and general contractors instead of onworkers who are scarcely in a position to protect themselves from accident. Ortiz v. SFDS Development, 274 AD2d 341 (1st Dept. 2000). Labor Law § 240, which imposes absolute liability, is addressed to situations in which a worker is exposed to the risk of falling from an elevated worksite or being hit by an object falling from an elevated work place. Tsatsakos v. Citicorp, 295 AD2d 500 (2nd Dept. 2002). When a plaintiff is engaged in construction work at an elevated height and is not provided with any safety devices, a violation of Section 240(1) is established as a matter of law. Zimmer v. Chemung County Performing Arts, 65 NY2d 513 (1985). To establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable and that an absent or defective protective device or the type enumerated in the statute [*4]was a proximate cause of the injuries alleged. Felker v. Corning, Inc., 90 NY2d 219 (1997).

Labor Law § 240(1) requires owners and contractors to provide workers with appropriate safety devices to protect against "such specific gravity-related accidents as falling from a height or being struck by a falling object." Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). To recover under Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident. Blake v. Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280 (2003). Liability is contingent upon the existence of a hazard contemplated in the statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein. Narducci v. Manhasset Bay Assoc., 96 NY2d 259 (2001).

The record reveals the plaintiff sustained an injury when he fell from a scaffold at the construction site. There is no question that the plaintiff fell from an elevated position and he was not provided with any safety devises. The plaintiff has established as a matter of law that the injuries he sustained were in violation of the provisions of Labor Law § 240. Rocovich v. Consolidated Edison Co., 78 NY2d 509 (1991).

Plaintiff's motion for summary judgment against the defendant contractor Sheridan on the issue of liability is granted.

LABOR LAW § 240(1) CLAIM AGAINST OWNER

Labor Law § 240(1) provides for an exemption from liability of an owner of a one or two family dwelling. Cannon v. Putnam, 76 NY2d 644 (1990). Before an owner of a one-family dwelling may be subject to liability under the Labor Law, the evidence must demonstrate that he directed or controlled the work being performed and the phase "direct or control" is construed strictly and refers to a situation in which the owner supervises the method and manner of the work. Malloy v. Hanache, 231 AD2d 693 (2nd Dept. 1996). The record reveals the Homeowners resided in New Jersey and were the sole owners of the subject property in Bethel, New York. The plaintiff has failed to demonstrate that the Homeowners exerted any control or direction in the construction of their retirement home. Although the Homeowners made decisions in regard to the project and actively monitored the construction site, their actions do not rise to the level subjecting them to liability. McNabb v Oot Bros, Inc. 64 AD3d 1237 (4th Dept. 2009); Soskin v. Scharff, 309 AD2d 1102 (3rd Dept. [*5]2003). The plaintiff failed to demonstrate that he is entitled to summary judgment as a matter of law.

The Homeowners have presented sufficient evidence entitling them to the one family home exemption as contemplated by Labor Law § 240(1). A homeowner is not liable for a worker's personal injuries under Scaffold Law or Labor Law sections which impose certain safety requirements on owners involved in construction work when there was no evidence that the homeowners directed or controlled the work being performed on the home. Affri v. Basch, 13 NY3d 592 (2009); Savreino v. Reiter, 1 AD3d 1066 (4th Dept. 2003).

The Homeowners' cross-motion for summary judgment is granted as a matter of law as they are entitled to the statutory exemption. Sheridan's allegation that the Homeowners are not entitled to the exemption for their failure to state that the structure would not be used as a one family home is unfounded and speculative. All cross-claims alleging contribution against the Homeowners pursuant to CPLR § 1401 are also dismissed.

LABOR LAW § 240 CLAIM AGAINST SUBCONTRACTOR

Plaintiff alleges the defendants were negligent in creating and/or permitting a hazardous and unsafe condition to exist in the erection of the scaffold. Defendant Block moves for summary judgment and maintains it was not negligent in the construction of the scaffold. Block alleges it had no contractual relationship with Ellis or the plaintiff. The plaintiff consents to the discontinuance of this action against defendant Board. Sheridan and the Homeowners have not opposed Board's motion.

To establish a prima facie case of negligence, the plaintiff must demonstrate (1) that the defendant owed him a duty of reasonable care, (2) a breach of the duty and (3) a resulting injury proximately caused by the breach. Solomon v. City of New York, 66 NY2d 1026 (1985). From the facts presented, this Court determines Block is entitled to summary judgment as it has established it did not cause the scaffold to fall. When Block left the job in December 2007 it had secured the scaffold with proper footings, supports and warning tape wrapped around the area. From the facts presented, no negligence can be assessed against Block. Block has demonstrated that it is entitled to summary judgment as matter of law. The Court notes the plaintiff voluntarily agreed to discontinue the action against Block and the other defendants did not oppose the motion.

[*6]HOMEOWNERS SUMMARY JUDGMENT MOTION ON CROSS-CLAIMS


The Homeowners contend Sheridan breached the construction contract by failing to name them as additional insureds on the policy of insurance as required by the contract. In October 2008, the Homeowners received notice from Sheridan's insurer that it would not defend or indemnify. The Homeowners also claim they are entitled to common law indemnification from Sheridan.

Sheridan claims the contract between it and the Homeowners requires indemnification if it is found negligent. Sheridan claims there is no proof that Sheridan was negligent or the proximate cause of the accident. Sheridan maintains since there has been no finding of negligence, the contractual indemnification claim must be denied as premature. In addition, Sheridan alleges it cannot be found responsible for common law indemnification as there has been no finding of negligence.

An agreement to purchase insurance coverage is clearly distinct from and treated differently from an agreement to indemnify. Keelan v. Sivan, 234 AD2d 516 (2nd Dept. 1996). It is well settled law that where one party to a contract breached its obligation to provide the insurance coverage required under the contract, the breaching party is liable for the resulting damages. Kinney v. G.W. Lisk Co., 76 NY2d 215 (1990)."A contractual provision which requires that a party be named as an additional insured in a liability policy has been interpreted to mean that the additional insured is insured for all liability arising out of the activities covered by the agreement." Ceron v. Rector, 224 AD2d 475 (2nd Dept. 1996).

This Court found Sheridan liable for plaintiff's injuries as a contractor pursuant to Labor Law § 240. After a review of the contract between the parties, this Court concludes Sheridan failed to obtain insurance naming the Homeowners additional insureds. Sheridan's failure to secure liability insurance entitles the Homeowners summary judgment for breach of contract. Quilliams v. Half Hollow Hills School Dist., 67 AD3d 763 (2nd Dept. 2009). Sheridan has failed to provide this court with any evidence of its compliance with its contractual obligation to provide such insurance and this Court grants the Homeowners summary judgment on its counterclaim for indemnification, Schumann v. City of New York, 242 AD2d 616 (2nd Dept. 1997), including common law indemnification. Summary judgment is also granted on the Homeowners' cross-claims against Sheridan. [*7]

Based upon the above, it is

ORDERED, that plaintiff Davis' motion for partial summary judgment against Sheridan is granted, and it is further

ORDERED, that defendant Homeowners' motion for summary judgment seeking the dismissal of the complaint and all cross-claims against them is granted, and it is further

ORDERED, that Homeowner's motion for summary judgment against Sheridan for breach of contract is granted, and it is further

ORDERED, that Homeowner's motion seeking summary judgment on their cross-claims is granted.

ORDERED, that defendant Block's motion for summary judgment is granted, and it is further

ORDERED, that Sheridan's cross-motion for a voluntary discontinuance against defendant Block is granted, and it is further

ORDERED, that this Court shall hold a conference at 11:00 am on May 18, 2011 with all remaining parties to discuss outstanding issues including damages.

This shall constitute the Decision and Order of this Court.

DATED: April 21, 2011

Monticello, NY

Hon. Frank J. LaBuda

Acting Supreme Court Justice

Papers Considered:

1.Notice of Motion dated July 7, 2010;

2.Affirmation of Andrew L. Spitz, Esq. dated July 7, 2010 with exhibits annexed;

3.Affidavit of Andrew Davis dated July 2, 2010;

4.Notice of Motion dated July 15, 2010;

5.Affidavit of Brian D. Carr, Esq. dated July 15, 2010 with exhibits annexed;

6.Defendant Homeowners' Memorandum of Law dated July 15, 2010;

7.Notice of Cross-Motion dated July 28, 2010;

8.Affirmation of Thomas E. Kelly, Esq. dated July 28, 2010 with exhibit annexed;

9.Affirmation of Andrew L. Spitz, Esq. dated August 2, 2010;

10.Notice of Cross-Motion dated August 24, 2010; [*8]

11.Affirmation of Andrew L. Spitz, Esq. dated August 24, 2010;

12.Affidavit of Robert Esteva dated August 24, 2010;

13.Affidavit of Brian D. Carr, Esq. dated August 27, 2010 with exhibit annexed;

14.Notice of Motion dated July 16, 2010;

15.Affidavit of Brian D. Carr, Esq. dated July 16, 2010 with exhibits annexed;

16.Homeowners Memorandum of Law dated July 16, 2010;

17Affirmation of John P. Meenagh, Jr., Esq. dated September 23, 2010 with exhibits annexed;

18.Affidavit of Brian D. Carr, Esq. dated October 8, 2010;

19.Affirmation of Andrew L. Spitz, Esq. dated October 8, 2010.