[*1]
Doyle v Rayuela
2014 NY Slip Op 50930(U) [43 Misc 3d 1235(A)]
Decided on June 9, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2014
Supreme Court, Queens County


William Doyle and ALISON KEOR, Plaintiffs,

against

Rayuela, MAXIMO TEJEDA, HECTOR SANZ, PAUL FERNANDEZ, DISH 165 INC., 165 ALLEN REALTY, LLC., LAKEDEN REALTY CORPORATION, TRI STATE CONSTRUCTION & MASONRY CORP., MOHAMMAD SHABBIR, TRI STATE CONSTRUCTION CORPORATION, TRI-STATE CONSTRUCTION & RESTORATION, INC., TRI-STATE CONSTRUCTION, TRI-STATE CONSTRUCTION, INC., TRI-STATE CONSTRUCTION & MASONRY BASEMENT, PC ENGINEERING, P.C., LEE ENGINEERING, P.C., DINA VEDMED ARCHITECT, C.R.U. MECHANICAL & HEATING, INC., Defendants.




19865/2010
Robert J. McDonald, J.

The following papers numbered 1 to 20 read on: (1) this motion by defendants Tri State Construction & Masonry Corp. (Tri State) and Mohammad Shabbir (Shabbir) (collectively, the Tri State Defendants) to dismiss the complaint and all cross-claims pursuant to CPLR 3211(a)(7) and 3212; (2) a cross motion by defendants Rayuela and Dish 165 Inc. (Rayuela/Dish), and individual defendants Hector Sanz (Sanz), Paul Fernandez (Fernandez), and Maximo Tejada (Tejada) (collectively, the Rayuela Defendants) for an automatic stay of proceedings due to the death of Tejada or, in the alternative, summary judgment dismissing the complaint and all cross-claims; and (3) a separate cross motion by defendant CRU Mechanical & Heating Inc. (CRU) for summary judgment dismissing the complaint and all cross-claims.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits.......... 1-5

Notices of Cross Motion - Affidavits - Exhibits... 6-13

Answering Affidavits - Exhibits................... 14-16

Reply Affidavits.................................. 17-20

Upon the foregoing papers it is ordered that this motion and these cross motions are determined as follows:



Plaintiff William Doyle, and his wife, suing derivatively, commenced this action to recover for personal injuries Doyle allegedly sustained on June 1, 2007 while on the construction site of the restaurant Rayuela, which was not yet open to the public, located at 165 Allen Street in New York, New York. Doyle, a regional brand manager for wine and spirits distributor Charmer Sunbelt Group, avers that he entered the restaurant to meet with mixologist Junior Moreno (Moreno) and discuss the sale of tequila by his company. He climbed the "floating" staircase in the middle of the restaurant to the second floor, where workers on site indicated Moreno might be, but realized that Moreno was not present. As Doyle was descending the staircase, his feet "slipped out from underneath [him]" and he fell backward, sliding to the bottom of the staircase. Plaintiffs allege that Doyle's accident was due to poor lighting, lack of handrails, and slippery brown paper wrapping and/or sawdust on the staircase. In addition to the derivative claim on behalf of Doyle's wife for loss of consortium, plaintiffs' complaint asserts causes of action under the Labor Law and for common-law negligence.



The Rayuela restaurant was owned and operated by Dish 165 Inc., whose principals were Sanz, Fernandez, and Tejada. Rayuela/Dish retained Tri State as the general contractor for the construction project, and non-party Young Kim (Kim) was their contact at Tri State. The Rayuela Defendants also hired CRU to work on the restaurant's sprinkler system, defendant PC Engineering, P.C. to serve as architect, and non-party Creme Design as an interior designer for the restaurant.



Since the making of the motion and cross motions, the stay on proceedings triggered by Tejada's death has been vacated by so-ordered stipulation dated October 17, 2013.



The court first addresses the part of The Tri State Defendants' motion and the Rayuela Defendants' cross motion seeking to dismiss the claims against the individual defendants. [*2]Corporate officers may not be held liable solely by virtue of their positions in the company (see Bernstein v Starrett City, 303 AD2d 530 [2003]). As the Rayuela Defendants indicate, plaintiffs' complaint fails to make any allegations specific to individual defendants Sanz, Fernandez, and Tejada, and any actions they took in their individual capacities or beyond the scope of their corporate capacities (cf. Casa Di Roma Furniture, Inc. v Sovereign Bank, 25 Misc 3d 1222[A] [2009]). Thus, the claims against these individual defendants warrant dismissal.



Similarly, the Tri State Defendants note that Shabbir is sued herein only in his capacity as Tri State's President and sole shareholder, as he was not involved with the daily construction at Rayuela. Thus, in order to hold him liable for their alleged injuries, plaintiffs must demonstrate that piercing the corporate veil is warranted because the corporate owner exercised complete dominion over and abused the privilege of doing business as a corporation (see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 126 [2009]). Plaintiffs have made no such assertions here, and do not oppose this branch of the Tri State Defendants' motion. Thus, the claims against individual defendant Shabbir must be dismissed (CPLR 3211[a][7]; see Mondone v Lane, 106 AD3d 1062, 1064 [2013]).



With respect to the branches of the motion and cross motions pertaining to the Labor Law claims, defendants bear the burden of demonstrating prima facie entitlement to summary judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendants rely on Doyle's deposition testimony stating that he was a representative of Charmer Sunbelt Group and that he was on the subject premises to discuss the sale of liquor. As plaintiff was not contracted as an "employee" or "employed" at the construction site, was not a "mechanic, workingman or laborer working for another for hire" (Labor Law § 2[5]) nor one "permitted or suffered to work" (Labor Law § 2[7]) at the place of the occurrence, he does not fall within the purview of the Labor Law (see Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577 [1990]). Such activity also is not associated with any construction work on the project (see Soto v J. Crew Inc., 21 NY3d 562, 568-569 [2013]; Martinez v City of New York, 73 AD3d 993, 996 [2010]; Keenan v Just Kids Learning Ctr., 297 AD2d 708 [2002]). Moreover, plaintiffs' claims under Section 240(1) are unavailing because the staircase was not a safety device designed to protect against elevation-related risks (see Gelo v City of New York, 34 AD3d 636 [2006]), and the claims under Section [*3]241(6) must also fail because the predicate Industrial Code violations alleged are either inapplicable to the instant facts or too general to support a cause of action (see Fried v Always Green, LLC, 77 AD3d 788, 789-790 [2010]; La Veglia v St. Francis Hosp., 78 AD3d 1123, 1126 [2010]).



Thus, defendants establish, prima facie, that they are entitled to summary judgment on the Labor Law causes of action because Doyle was not within the class of persons afforded protection under Sections 240, 241(6) and 200 of the Labor Law, and the accident did not arise in a construction context (see Morales v 569 Myrtle Ave., LLC, 17 AD3d 418, 420 [2005]; Jones v Fried, 21 AD3d 1059, 1061 [2005]). In opposition, plaintiffs fail to raise any triable issues of fact (see Alvarez, 68 NY2d at 324; Mattes v Joseph, 282 AD2d 506 [2001]).



Turning to the common-law negligence claims, a general contractor that has control of a work site may be held liable for failing to correct a dangerous condition of which it had actual or constructive notice (see Tilford v Sweet Home Real Prop. Trust, 40 AD3d 966 [2007]). Here, deposition testimony by Kim and Sanz reveals that Tri State built the staircase, laid brown paper on the steps, and was responsible for cleaning and sweeping the work site daily. While Tri State was not aware of any prior complaints about the staircase, it did not demonstrate lack of constructive notice by offering some proof as to when the area was last cleaned or inspected prior to plaintiff's fall (see Mei Xiao Guo v Quong Big Realty Corp., 81 AD3d 610 [2011]; Gerbi v Tri-Mac Enters. of Stony Brook, Inc. 34 AD3d 732 [2006]; cf. Cusack v Peter Luger, Inc., 77 AD3d 785 [2010]). Indeed, a defendant moving for summary judgment must satisfy its burden by affirmatively demonstrate the merit of its defense rather than by merely pointing to gaps in plaintiff's case (see Plotits v Houaphing D. Chaou, LLC, 81 AD3d 620 [2011]). Moreover, given the conflicting testimony from plaintiff and defendants, triable questions of fact exist regarding whether the subject staircase was adequately lit and/or had handrails (see Stewart v Sherwil Holding Corp., 94 AD3d 977, 978 [2012]). Thus, the Tri State Defendants fail to meet their prima facie burden by tendering evidentiary proof eliminating all triable issues of fact as to whether Tri State, as general contractor, exercised control over the work site and created or had notice of the alleged dangerous condition (see Manicone v City of New York, 75 AD3d 535, 537 [2010]). It is unnecessary to consider plaintiffs' papers in opposition (see Joachim v 1824 Church Ave., Inc., 12 AD3d 409 [2004]).



In the Rayuela Defendants' cross motion for summary judgment, they successfully set forth a prima facie showing that Rayuela/Dish neither created the alleged hazardous condition nor had actual or constructive notice of its existence (see Kruger v Donzelli Realty Corp., 111 AD3d 897 [2013]; Smith v Hariri Realty Assoc., Inc., 109 AD3d 897 [2013]). In this regard, defendants submit deposition testimony from Kim and Sanz reflecting that Rayuela/Dish was not responsible for site safety or cleaning because Sanz's involvement with the construction work was limited to voicing layout preferences and taking notes or photos of the site. Such general supervisory control at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence (see Ortega v Puccia, 57 AD3d 54, 62 [2008]; Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2004]). The Rayuela Defendants thus establish that Rayuela/Dish did not owe any duty to Doyle because it did not have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition, or otherwise assume responsibility for the condition of the staircase (see Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683 [2005]; Dugue v 1818 Newkirk Mgt. Corp., 301 AD2d 561 [2003]; Petito v Verrazano Contr. Co., Inc., 283 AD2d 472 [2001]). In opposition, plaintiffs fail to raise any triable issues regarding their liability (see La Veglia, 78 AD3d at 1125).



In its cross motion for summary judgment, CRU presents an affidavit from its president stating that while performing plumbing work to install a sprinkler system at the restaurant, it did not work on or near the subject staircase, did not clean and was not responsible for cleaning the staircase, and was not aware of any complaints about or prior accidents on the staircase. Such evidence is sufficient to establish, prima facie, that it did not create or have actual or constructive notice of the alleged hazardous condition and did not have authority to supervise or control the means and methods of the work leading to the alleged injury (see Chowdhury v Rodriguez, 57 AD3d 121, 128 [2008]). Plaintiffs submit no opposition to CRU's cross motion, and summary judgment dismissing the complaint and any cross-claims asserted against it is warranted (see Alvarez, 68 NY2d at 324; Allan v DHL Exp. (USA), Inc., 99 AD3d 828, 832 [2012]).



Finally, the doctrine of res ipsa loquitur does not apply, insofar as no evidence exists to show that any defendant had exclusive control over the alleged condition on the staircase (see Everhart v County of Nassau, 65 AD3d 1277, 1279 [2009], citing Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]).



The court has considered the parties' remaining contentions and deems them unavailing.



Accordingly, the Tri State Defendants' motion is granted to the extent of dismissing the Labor Law claims against Tri State and all claims against Shabbir, individually. The separate cross motions by the Rayuela Defendants and CRU seeking to dismiss the respective complaints and all cross-claims against them are granted.



Dated: June 9, 2014

Long Island City, NY



_______________________

ROBERT J. MCDONALD

J.S.C.