[*1]
Davis v Petranek
2013 NY Slip Op 52273(U) [42 Misc 3d 1211(A)]
Decided on December 24, 2013
Supreme Court, Queens County
McDonald, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2013
Supreme Court, Queens County


Ricky Davis and SHERRIE DAVIS, Plaintiff,

against

Gregor C. Petranek, MICHELLE G. PETRANEK and JACQUELINE M. GAUTHIER, TRUSTEE OF THE JACQUELINE M. GAUTHIER LIVING TRUST, Defendants.




28226/2011

Robert J. McDonald, J.



The following papers numbered 1 to 15 were read on this motion by plaintiffs, RICKY DAVIS and SHERRIE DAVIS, for an order pursuant to CPLR 2221 granting renewal and reargument of plaintiff's motion for summary judgment and upon renewal granting partial summary judgment on the causes of action for common law negligence and violation of Labor Law § 240(1):

Papers

Numbered

Notice of Motion-Affidavits-Exhibits.....................1 - 8

Affirmation in Opposition-Affidavits-Exhibits............9 - 12

Reply Affirmation.......................................13 - 15

In this action, plaintiffs Ricky Davis and Sherrie Davis seek to recover damages for personal injuries which arose as the result of plaintiff Ricky Davis' fall from a ladder on November 26, 2011 while he was painting and making repairs to the exterior [*2]of the home owned by defendants Gregor C. Petranek and his sister Michelle G. Petranek.

Plaintiffs commenced an action by filing a summons and complaint on December 16, 2011. Plaintiffs' complaint asserts causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 240(1). The complaint alleges that defendant contracted with plaintiff to perform trimming and painting on the front portion of the defendants' home located at 77-37 170th Street, Fresh Meadows, Queens County, New York. The complaint states that on November 26, 2011, while engaged in trimming and painting the exterior of the defendant's house, the plaintiff placed a ladder against a column that went from ground level to roof level. Plaintiff alleges that a portion of the wood which formed the top portion of the column was defective or rotted and while he was performing his work the column against which the ladder was leaning collapsed. Plaintiff alleges that the occurrence was caused by the negligence of the defendants in the ownership, maintenance, and control of the premises and in failing to timely and properly inspect the defective column and the gutter above the column which was rotted and hazardous. The plaintiff alleges that as a result of his fall he sustained severe and permanent injuries.

In addition to the cause of action for ordinary negligence and a violation of Labor Law § 200, plaintiff asserts a cause of action for a violation of Labor Law § 240(1), alleging that defendant, Gregor Petranek, supervised and controlled the work being performed by the plaintiff, that the balcony and column were not constructed to provide proper protection to the plaintiff and the ladder on which plaintiff was engaged in his work was not safely placed and secured. Plaintiff also asserts a cause of action pursuant to Labor Law § 241(6) alleging that the area to which the plaintiff was assigned was not constructed, shored, equipped, guarded, arranged, operated and or conducted as to provide reasonable and adequate protection for the plaintiff. The complaint also asserts a cause of action on behalf of the plaintiff's wife, Sherri Davis, for loss of services.



Issue was joined by the service of defendants' verified answer with affirmative defenses dated January 20, 2012. In March 2013, the plaintiffs moved for partial summary judgment pursuant to CPLR 3212 on the two causes of action for violation of Labor Law § 240(1) and common law negligence on the ground that the evidence establishes that defendants were negligent in failing to maintain their premises in a reasonably safe condition, that the defendants failed to provide plaintiff with a safe place to work and failed to warn Ricky Davis of a dangerous and hazardous [*3]condition which defendant Gregor Petranek knew or should have known existed at the premises.

By decision and order dated June 14, 2013, this court denied the plaintiffs' motion for summary judgment on the ground that the plaintiffs' counsel submitted partial and incomplete excerpts of the depositions of the parties and included only selected pages from the full deposition transcripts. The court could not rule on the merits of the motion because the transcripts submitted were not admissible evidence for the purposes of the motion (see CPLR 3116[a][b]; McDonald v Mauss, 38 AD3d 727 [2d Dept. 2007]).

Counsel for plaintiff, Jonah Grossman, Esq., now moves to reargue the court's prior decision and submits that he did not a attach a full set of the deposition transcripts to the prior motion papers because (1) he knows of no law or decision which requires that complete deposition transcripts be furnished in support of the motion; (2) because he did not believe that the court would want to be burdened in reading 200 pages of irrelevant material which constitute the portions of the transcripts that were not attached; and (3) that the defendant had the opportunity to attach any further portions of the transcripts it felt were relevant and failed to do so. In addition, counsel now submits transcripts of the complete deposition testimony of the defendant, Gregor C. Petranek and the plaintiff, Ricky Davis. Counsel requests that as he has now re-submitted the complete deposition transcripts the motion may now be determined on the merits.

In opposition to the motion to reargue, counsel for defendants, Shawn P. O'Shaughnessy, Esq., argues that the plaintiff's counsel has failed to present any new facts not offered on the prior motion and citing Renna v Gullo 19 AD3d 472 [2d Dept. 2005], states that "a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." Counsel also argues that the original motion was untimely as the note of issue was filed on October 10, 2012 and the plaintiff's filed their motion on February 21, 2013. Counsel asserts that the 120 day deadline expired on February 7, 2013 and because the plaintiff has not offered good cause for the untimely filing, the motion should be denied as untimely (citing Brill v City of New York, 2 NY3d 648 [2004]. Counsel also argues that the late submission of the entire transcript is not a sufficient basis to grant renewal of the motion as the plaintiff should not be given a second opportunity to present the motion because the complete transcripts were available to the plaintiff at the time of the [*4]initial motion. Lastly, defendant argues that based upon the pre-trial testimony of the parties there are questions of fact which preclude granting summary judgment to the plaintiff.

Firstly, with respect to timeliness, pursuant to CPLR 3212(a), a motion for summary judgment must be made within 120 days after the filing of the note of issue. The motion is "made" when the notice of motion is served not when it is filed or made returnable (see CPLR 2211; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2d Dept. 2006]; Russo v Eveco Dev. Corp., 256 AD2d 566 [2nd Dept 1998]). Here, as stated by the defendant, the 120 period to make a summary judgment motion expired on February 7, 2012. As the affidavit of service indicates that the motion was actually served on February 7, 2012, this court finds that the initial motion was timely when served.

With respect to the grounds for reargument, the Second Department has held that "CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form" (Schwelnus v Urological Assoc. of L.I., P.C., 94 AD3d 971[2d Dept. 2012]; Coccia v Liotti, 70 AD3d 747 [2d Dept. 2010]; Arkin v Resnick, 68 AD3d 692 [2009]). Here, the plaintiff corrected his procedural error by re-submitting the transcripts in admissible form and presenting a reasonable excuse for initially failing to submit the entire transcript. Therefore, the motion to reargue and renew is granted (see Darwick v Paternoster, 56 AD3d 714 [2d Dept. 2008]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2d Dept. 2008]; DeLeonardis v Brown, 15 AD3d 525 [2d Dept. 2005]).

Accordingly upon reargument and renewal this court finds as follows:

In support of the motion for summary judgment the plaintiffs annex copies of the pleadings; the entire deposition transcripts of plaintiff, Ricky Davis and defendant, Gregor C. Petranek and a photograph of the broken column taken after the accident.

In his deposition taken on July 27, 2012, Ricky Davis, age 55, testified that he is self-employed as a television producer and film director for his own company known as United Metropolitan Television and Radio. He testified that in addition to television production he was also engaged in home improvement projects two or three times per month, working under the name of United Metropolitan Construction, a sole proprietorship. [*5]

With regard to the accident in question, he stated that he was performing outdoor painting work for the defendant on the front dormer and trim at his residence at 77-37 170th Street near Union Turnpike. Plaintiff testified that Mr. Petranek showed him three windows on the front of the house, two columns, and trim on top of the dormers that needed to be scraped and painted. Plaintiff stated that Mr. Petranek did not want a contract, rather he wanted plaintiff to work on the house on a per diem basis. Plaintiff stated, "he wanted to pay whoever worked on the house each day under his guidance because he wanted to be in control of how things are done, when it was done, it was done by his schedule." He told the plaintiff he did not want contractors he wanted somebody to work on his house under his jurisdiction. He stated that Petranek wanted to determine how the wood would be scraped, what kind of paint to use, how long before the scraping and when exactly the paint should be applied. Davis stated that defendant "provided me with tools, scrapers, brushes, paint. He actually mixed the paint for me and the day I was painting, he was holding the ladder and he walked away and that's when it collapsed." Plaintiff stated that defendant wanted to pay him $100.00 per day to work for him and he would supervise the plaintiff.

Davis testified further that he himself went to the store and bought the first gallon of paint and defendant purchased the remainder of the paint. He stated that defendant also bought some lumber that he wanted plaintiff to post around the dormer. With respect to the dormer, defendant showed plaintiff him where it needed to be scraped and painted. The first day Petranek provided him with a six foot A-frame wooden ladder and a scraper. Before he left the first day Gregor inspected the work. The second time he went to the house was after defendant called him and requested that plaintiff put a second coat of paint on the dormer and adjust the gutter so that water would not leak down on the column. Plaintiff brought his own 30 foot ladder. The house had a balcony or dormer above the front door with decorative columns in front of the door which were attached to the balcony. The plaintiff testified that on the date of the accident, he leaned his ladder against one of the columns. He climbed up the ladder about 10 - 12 feet without using any safety devices and started scraping the trim. He testified that Petranek was holding the ladder but then Petranek went to the garage to get new plywood for plaintiff to repair a hole at the top of the column. After Petranek went to his garage, the column detached from the dormer and the column and ladder fell. Plaintiff stated that Petranek never gave him a harness or any other safety devices. As the ladder began to move the plaintiff stated he panicked and jumped off the ladder and landed on his feet. His knees then gave way, [*6]he fell on his right hand fracturing a bone. When EMS arrived at the scene he told them he had pain in his hand and knees. He was transported from the scene by ambulance and taken to the emergency rom at Flushing Hospital. He was admitted and remained at the hospital for four days and then stayed at a rehabilitation center for two months. Plaintiff testified that he believed that it was not a matter of the ladder not being safe or not secure but rather he fell because the dormer itself came off the house.

Gregor C. Petranek testified at an examination before trial on July 27, 2012. Defendant testified that he owns the house with his sister Michelle Petranek who actually resides in Florida. He stated that he agreed with the plaintiff that the job would consist of scraping the paint down to the wood, prime, oil base, two coats, finish paint and repitch the gutter. He stated that the terms were in writing. Petranek stated that the plaintiff provided a scraper and paintbrush but he may have given the plaintiff a roller and a scraper. He stated he felt his tools were better than those belonging to the plaintiff. He stated that he pointed out all the areas that required scraping including the two columns and horizontal trim. Petranek testified that he did not tell plaintiff where to place the ladder, did not tell him the order or sequence of the work, did not help him set up the ladder and did not offer suggestions or corrections to the work but only inspected what was done.

Petranek stated that he was aware that the column in front of the house was a little loose due to age but he believed it to be stable. He testified that there was no water damage to the trim above the column. He stated that on the date of the accident, the plaintiff began work at 9:00 a.m. and the accident happened at 9:45 a.m. He stated that plaintiff used his own 30 foot extension ladder and that he first intended to re-pitch the gutter on the balcony. Defendant stated that plaintiff positioned the ladder himself by leaning it against the column. He stated that the columns were hollow and used only for decorative and not structural purposes. He stated there was a one inch gap on one side of the column. He observed that the base of the ladder was on concrete. He stated that he felt that if the ladder had been extended above the roof line and not leaned on, the column would not have fallen. He also stated that the feet of the ladder were misaligned on the bottom of the ladder. He stated that one foot of the ladder did not make contact with the ground. He stated that at one time plaintiff extended the ladder above the roof line but then lowered it so that it leaned against the column. He stated that he had rope in his truck that could have been used to secure the ladder to the balcony but did not offer it to the plaintiff. Further, he did not tell the plaintiff that the column [*7]was loose. When asked if there was a reason why he did not tell plaintiff that the column was loose, he answered that he didn't know why he did not tell him. He stated that just prior to the accident he had gone into the garage in order to get plywood for plaintiff to use to fix the top of the column. He stated that to his knowledge the top of the column was not rotten nor was any portion above the trim rotten. He also stated he did not hold the ladder for Mr. Davis. When asked what made the column fall he stated that it fell because Davis put the ladder against the column, climbed up and leaned against it. After the accident he left the ladder outside the garage where it was stolen a few days later.

In his affirmation in support of the motion, plaintiffs' counsel, Lawrence B. Lame, Esq. contends that the plaintiffs are entitled to summary judgment as the evidence establishes, prima facie, defendant's liability on the grounds of both common law negligence and violation of section 240(1) of the Labor Law. Counsel asserts that the defendant was negligent in failing to maintain his premises in a reasonable safe condition, failing to provide Ricky Davis with a safe place to work, and failing to inform plaintiff of a defective and hazardous condition which defendant knew or should have known existed at the premises.

Plaintiff contends that the defendant was negligent in failing to warn the plaintiff of the defective condition of the column and permitting the plaintiff to climb fifteen feet and lean the ladder against a column that he knew was loose. He contends that the defendant's testimony demonstrates that defendant was fully aware of the column was defective and hazardous, that the wood at the top of the column was loose and that the defective column was clearly the proximate cause of the accident. Plaintiff also contends that there was no evidence of comparative negligence as the plaintiff was unaware of the defective column until the column broke away from the balcony causing the ladder to fall to the ground.

In addition, plaintiff contends that the homeowner was in violation of Labor Law 240(1) in that the evidence shows that he directed and controlled the work being performed and failed to provide the defendant rope or other safety devices to secure the ladder and failed to provide reasonable and adequate protection and safety to the plaintiff as he performed construction work on the premises. Plaintiff also contends that the evidence shows that the defendant/owner supplied tools to the defendant and controlled and supervised his work such that the defendant is not entitled to a homeowners exemption under Labor Law § 240(1) as plaintiff testified that the defendant was on the premises on a [*8]daily basis and controlled the method and manner of the plaintiff's work.

In opposition, defendant contends that the plaintiff has failed to make a prima facie case with respect to Labor Law 240(1) because the only thing the defendant selected for the plaintiff to use was the type of paint and the number of coats to be applied. Thus, counsel contends that there was insufficient proof that defendant exercised supervision and control over the project and the proof showed only that the defendant exercised the typical involvement of a homeowner (citing Devodier v Haas, 173 AD2d 437 [2d Dept. 1991]). Counsel argues that defendant's involvement was merely a retention of the limited power of general supervision and was no more extensive than would be expected of the typical homeowner who hired a contractor to renovate or construct an addition to his or her house (citing Jumawan v Schnitt, 35 AD3d 382 [2d Dept. 2006]; DeCavallas v Pappantoniou, 300 AD2d 617 [2d Dept. 2002]). As such, counsel asserts that defendant did not direct or control the means and methods of the renovation work at the residence and is therefore, not liable under the Labor Law § 240(1).

With respect to the cause of action for common law negligence, counsel argues that the deposition testimony established that the defendant was not aware of any defective conditions in the area at issue and that there are questions of comparative negligence as the plaintiff testified that he placed the ladder on the column himself.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact requiring a trial of the action by producing evidentiary proof in admissible form, in support of his position (see Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Labor Law § 200 codifies the common-law duty imposed upon an owner to provide his employees with a safe place to work and to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Colon v Bet Torah, Inc., 66 AD3d 731 [2d Dept. 2009]; Lane v Fratello Constr. Co., 52 AD3d 575 [2d Dept. 2008]). Liability for a violation of Labor Law § 200 and common-law negligence may be imposed upon a property owner where the plaintiff's injuries arose not from the manner in which the [*9]work was performed, but rather from an allegedly dangerous condition at the work site, when the owner had actual or constructive notice of the dangerous condition (see Vella v One Bryant Park, LLC, 90 AD3d 645 [2d Dept 2011]; Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1 [1st Dept. 2011]; Harsch v City of New York, 78 AD3d 781 [2d Dept 2010]; Cook v Orchard Park Estates, Inc., 73 AD3d 1263 [3d Dept. 2010]; Hirsch v Blake Hous., LLC, 65 AD3d 570 [2d Dept. 2009]; Fuchs v Austin Mall Assoc., LLC, 62 AD3d 746 [2d Dept. 2009]). To provide constructive notice, the defect must be visible and apparent and exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Vella v One Bryant Park, LLC, supra).

Here, the plaintiff alleged that he was injured as a result of a dangerous and defective condition at the work site, to wit, the column on which he placed his ladder was loose, rotted and had an open hole at the point where it was attached to the roof of the balcony. It is clear from the defendant's testimony that the defendant/homeowner had control over the premises and expressly testified that he was aware that the column, on which the plaintiff leaned the ladder, was loose, had a hole at the top, that he observed the plaintiff place the ladder against the column, that he failed to tell the plaintiff that the column was loose without any reason, and that he believed that the proximate cause of the ladder falling was that it had been placed against the loose column. Although the defendant stated that the feet at bottom of the ladder were uneven, he did not believe that was the cause of the accident. He testified that the column fell as a result of the ladder being placed against the column and not being secured to the balcony. Further, it is clear that the defendant was aware of the loose condition for a sufficient time such that he could have remedied same prior to the accident (see Colon v Bet Torah, Inc., 66 AD3d 731 [2d Dept. 2009]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763 [2d Dept. 2009]; Fuchs v Austin Mall Assoc., LLC, 62 AD3d 746[2009]

Thus, this court finds that the evidence shows that the defendant had prior knowledge that the column was loose and should have known that leaning the ladder against the loose column was unsafe, that he observed the plaintiff place the ladder against the column and failed to warn the plaintiff of the danger, and that the defendant did not suggest that the ladder be fully extended and secured to the balcony such that it would lean against the roof rather than the column. Therefore, this court finds that the plaintiff has established, prima facie, that the defendants violated Labor Law § 200 as defendant was negligent in [*10]failing to maintain the premises in a reasonably safe condition, failing to provide Ricky Davis with a safe place to work, and failing to inform plaintiff of the defective and hazardous condition which defendant knew or should have known existed at the premises. In addition the plaintiff established that utilizing a ladder which was leaning against the defective column was the proximate cause of the accident.

In opposition, the defendant failed to raise a triable issue of fact with regard to his actual or constructive knowledge of the defect or with respect to the comparative negligence of the plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Labor Law § 240 (1) requires owners, contractors, and their agents 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 that was improperly hoisted or inadequately secured" (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Rau v Bagels N Brunch, Inc., 57 AD3d 866 [2d Dept.2008]). Labor Law § 240(1) provides that contractors, owners and their agents "shall furnish or erect, or cause to be furnished or erected ... scaffolding ... and other devices which shall be so constructed, placed and operated as to give proper protection" to workers employed on the premises. "In order to prevail on a cause of action pursuant to Labor Law § 240(1), a plaintiff must establish a violation of the statute and that such violation was a proximate cause of his or her injuries" (Rakowicz v Fashion Inst. of Tech., 56 AD3d 747 [2d Dept. 2008]; see Chlebowski v Esber, 58 AD3d 662 [2d Dept. 2009]).

Further the statute contains language exempting "owners of one and two-family dwellings who contract for but do not direct or control the work." The phrase "direct or control" refers to the situation where the owner supervises the method and manner of the work (see Walsh v Kresge, 69 AD3d 612 [2d Dept 2010]). In order to receive the benefit of this homeowner's exemption, a defendant must demonstrate: (1) that the work was performed at a one or two-family dwelling, and (2) that they did not direct or control the work (see Castellanos v United Cerebral Palsy Assn. of Greater Suffolk, Inc., 77 AD3d 879 [2d Dept 2010]; Chowdhury v Rodriguez, 57 AD3d at 126 [2d Dept. 2008]; Ortega v Puccia, 57 AD3d 54 [2d Dept. 2008]; Boccio v Bozik, 41 AD3d 754 [2d Dept. 2007]; Torres v Levy, 32 AD3d 845 [2d Dept. 2006]).

Here, the evidence submitted by the plaintiff in support of his motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1) established that the defendant [*11]supervised the methods and the manner of the work. The testimony establishes that the defendant provided the plaintiff with some of the materials including scrapers, sawhorse, plywood, and paintbrush rollers and that the plaintiff was present on the date of the accident leaving the area only to get additional materials for the plaintiff to use to patch the hole at the top of the column. Further, the evidence shows that Petranek was very specific in overseeing and controlling the manner and method in which the work was to be performed specifying how the scraping was to be done, how many coats of paint and giving work orders to the plaintiff on a day to day basis.

Pursuant to Labor Law § 240(1) a plaintiff must establish a violation of the statute and that such violation was a proximate cause of his or her injuries (see Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]; Rakowicz v. Fashion Inst. of Tech., 56 AD3d 747 [2d Dept. 2008]). Here, the record demonstrates that the the defendant failed to provide adequate safety devices to protect plaintiff from the risks associated with placing the ladder against the column and the absence of appropriate safety devices was a proximate cause of his injuries (see Hai-Zhong Pang v LNK Best Group, Inc., 111 AD3d 889 [2d Dept. 2013]; Robinson v Goldman Sachs Headquarters, LLC, 95 AD3d 1096 [2d Dept. 2012]; Ricciardi v. Bernard Janowitz Constr. Corp., 49 AD3d 624 [2d Dept. 2008]).

Accordingly, this Court finds that the defendants are liable for plaintiff's injuries under Labor Law § 240(1) (see Mayo v Metropolitan Opera Assn., Inc., 108 AD3d 422 [2d Dept. 2012]; Kuhn v Camelot Assn., Inc., 82 AD3d 1704[4th Dept. 2011]; Chlebowski v Esber, 58 AD3d 662 [2d Dept. 2009]; Rakowicz v Fashion Inst. of Tech., 56 AD3d 747 [2d Dept. 2008]; Rudnik v Brogor Realty Corp., 45 AD3d 828 [2d Dept. 2007]).

In order to defeat the motion, defendant failed to raise a triable issue of fact whether plaintiff's own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of the accident (see Custer v Jordan, 107 AD3d 1555 [4th Dept. 2013]).

Accordingly, for all of the above stated reasons, the plaintiff's motion for summary judgment on the issue of liability on so much of the complaint as alleged a violation of Labor Law §§ 240(1), 200 and common law negligence is granted.

Dated: December 24, 2013

Long Island City, NY[*12]

______________________________

ROBERT J. MCDONALD, J.S.C.