Serbio
Palacios, Plaintiff,
against
Vinit Mehta, NEELAM MEHTA and DAG
HAMMARSKJOLD TOWER CONDOMINIUM, Defendants.
|
701131/2013
Robert J. McDonald, J.
The following papers numbered 1 to 21 were read on this motion by defendant, Dag
Hammarskjold Tower Condominium, and the cross-motion of defendants Vinit Mehta
and Neelam Mehta, both for an order pursuant to CPLR 3212 granting summary
judgment in favor of the defendants dismissing the plaintiff's causes of action for
common law negligence and violations of Labor Law §§ 200, 240(1) and
241(6) and dismissing the plaintiff's complaint for failure to set forth a prima facie
case:[*2]
Papers
Numbered
Defendant Dag Hammarskjold Notice of Motion-
Affidavits-Exhibits.....................................1 - 5
Defendant Mehta Notice of Cross-Motion-
Affidavits-Exhibits.....................................6 - 10
Plaintiff' Affirmation in Opposition to Cross-Motion......11 - 13
Defendant Mehta Reply Affirmation.........................14 - 16
Defendant Dag Hammarskjold Reply Affirmation..............17 - 19
Third-Party Defendant Mario Construction
Affidavit in Support...................................20 - 21
In this personal injury action, plaintiff, Serbio Palacios, seeks to recover
damages for personal injuries he allegedly sustained as the result of his fall from a ladder
on January 28, 2013, while performing plastering work in the interior of a condominium
unit owned by defendants, Vinit Mehta and Neelam Mehta. The condominium unit,
No.26E, is located in the Dag Hammerskjold Tower Condominium located at 240 East
47th Street, New York County, New York. At the time of the accident the plaintiff was
employed by third-party defendant, Mario Construction Inc. Plaintiff alleges that as a
result of the accident he sustained injuries including posterior disc bulges of the cervical
spine, a tear of the supraspinatus tendon and rotator cuff rupture of the right shoulder
requiring arthroscopic surgery.
Plaintiff commenced an action against the owners of the condominium unit
(Mehta) and the Dag Hammarskjold Tower Condominium (the Condominium) by filing
a summons and complaint on April 2, 2013. Plaintiff's complaint asserts causes of action
alleging common-law negligence and violations of Labor Law §§ 200, and
240(1) and 241(6). The Mehtas served a third-party complaint against the plaintiff's
employer, Mario Construction, Inc. on September 30, 2013, alleging that the Mehta
defendants hired third-party defendant, Mario Construction Inc., as the contractor to
perform renovation work at their premises.
The complaint alleges that the defendants in the main action were negligent
and violated Labor Law sections §§ 200, 240(1) and 241(6) in failing to
provide the defendant with a reasonably safe place to work and in causing the premises
to become and remain in a defective and unsafe condition. Plaintiff's bill of particulars
asserts that the defendants were negligent in failing to maintain the worksite in a
reasonably safe condition; in failing to [*3]provide safety
equipment; in failing to provide a safe surface to erect the ladder; in failing to provide
proper ladders; in providing a defective ladder; in failing to properly supervise the
plaintiff while working at an elevated height; in failing to provide a safety harness; in
failing to prevent the plaintiff from falling from a height; in failing to take additional
precautions to make sure the ladder would not fall; and in failing to erect scaffolding or
other devices to provide proper protection to the plaintiff.
DAG HAMMARSKJOLD TOWER CONDOMINIUM MOTION
FOR SUMMARY JUDGMENT
In support of the Condominium's pre-discovery motion for summary
judgment, said defendant annexes copies of the pleadings; a copy of the Condominium's
Declaration; proof of ownership of the Condominium Units by the Mehtas; and a copy of
the transcript of the plaintiff's hearing before Judge John Mara of the Workers'
Compensation Board which took place on June 6, 2013.
At the hearing before the Board, the plaintiff testified that on January 28,
2013, he had been hired by his Marcello (Marcel Prela) of Mario Construction Inc. to
perform plastering as part of a renovation project at 240 E. 47th Street in Manhattan,
Apt. 26E. He described the unit as having four bedrooms and a large living room. He
was paid $160.00 per day by Marcello. He stated that on the date in question in
accordance with Marcello's directions, he was plastering and standing on the third step of
a six foot ladder when the ladder slipped forward causing him to fall on his back. He
testified that as a result of the fall he sustained injuries to his leg, back, neck, shoulder
and right arm. The owner of Mario Construction, Marcel Prela, testified that he provided
the ladder the plaintiff was using.
In his affirmation in support of the motion, counsel for the defendant
Condominium, Eric N. Baily, Esq., asserts that pursuant to the Court of Appeals decision
in Guryev v Tominsky, 20
NY3d 194 [2012], a condominium is not liable as an owner pursuant to Labor Law
§§ 240(1) and 241(6). Counsel asserts that in this case it is undisputed that
Vinit Mehta, who owned Unit 26E, retained Mario Construction to perform certain
renovation in his apartment. Thus, counsel asserts that as the Condominium did not hire
or control the contractor to renovate the individual unit, the Condominium is not liable
under Labor Law §§ 240(1) and 241(6). In addition, counsel asserts that the
Condominium is not liable pursuant to Labor Law § 200 and common law
negligence based upon the plaintiff's testimony at the Workers' Compensation hearing in
which he stated that he was working in the Mehta's [*4]unit at the time of the accident, that he was performing his
work pursuant to the instructions of his employer, Mario Construction, and that the
ladder was provided by the contractor. Thus, counsel argues that as the means and
methods of the work was provided by the employer, and as the Condominium did not
direct or control the manner of the plaintiff's work, there is no basis for which the
Condominium can be liable for statutory or common law negligence. Counsel also argues
that under the condominium bylaws the unit owner is required to indemnify the
condominium for liability incurred during alterations or renovations to their individual
unit. Thus, it is argued, the Mehtas have no right to contractual indemnity against the
condominium.
The plaintiff has not opposed the Condominium's motion. However, the
Mehta defendants oppose the dismissal of their cross-claim against the condominium for
indemnification on the grounds that the condominium approved the plans for the
renovation and allowed the plaintiff's employer into the Mehta's apartment. However, the
Condominium asserts that in Guryev, supra., the Court of Appeals held that the
Board's approval of the project does not afford a basis for the condominium to be held
liable under the Labor Law. In addition, counsel for the condominium asserts that merely
providing a key so that the plaintiff could enter the Unit, can not be equated with control
over the means and methods of the plaintiff's work inside the premises.
This court finds that pursuant to the Court of Appeals ruling in Guryev v
Tomchinsky, 20 NY3d 194[2012], the plaintiff's complaint against the
Condominium and the Mehta's cross-claims must be dismissed. The facts in
Guryev, supra. are similar to the instant case in that the plaintiff, a construction
worker, was injured while working on a renovation project in a condominium unit. The
Court held that because the owner of the Condominium Unit owns the unit in fee simple
absolute, the Condominium was not an owner or an owner's agent for purposes of the
Labor Law. Therefore, as the Condominium has no property interest in the premises
upon which the plaintiff was injured, and as it neither contracted for nor controlled the
construction work on the premises, the plaintiff's cause of action pursuant to Labor Law
§§ 240 and 241(6) are dismissed.
In addition, the defendant Condominium demonstrated its prima facie
entitlement to judgment as a matter of law dismissing the causes of action alleging
common-law negligence and violation of Labor Law § 200 by establishing that it
did not own, occupy, or control the premises (see Cortez v Northeast Realty Holdings, LLC, 78 AD3d 754
[2d Dept.2010]; Ryba v
Almeida, 27 AD3d 718 [2d [*5]dept. 2006];
Morrison v Gerlitzky, 282 AD2d 725 [2d Dept. 2001]), and that it did not have
the authority to supervise or control the manner in which the work was performed (see Alvarez v Hudson Val. Realty
Corp., 107 AD3d 748 [2d Dept. 2013]; Markey v C.F.M.M. Owners Corp., 51 AD3d 734 [2d Dept.
2008]). Moreover, the plaintiff makes no claim that there was a dangerous or unsafe
condition on the premises and asserts that the defendants' failure to provide a safe ladder
and safe means of use of the ladder was the proximate cause of the accident.
In opposition to the Condominium's motion, the plaintiff failed to raise a
triable issue of fact (see Alfonso
v Pacific Classon Realty, LLC, 101 AD3d 768 [2d Dept. 2012]).
VINIT AND NEELAM MEHTA's CROSS-MOTION
FOR SUMMARY JUDGMENT
In support of the Mehta's cross-motion for summary judgment, counsel for
the Mehtas, Denis E. McGuiness, Esq. submits a copy of the pleadings, including the
third-party summons and complaint; the plaintiff's bill of particulars; plaintiff's sworn
testimony at the Workers' Compensation Board hearing; and an affidavit from Vinit
Mehta.
In his affidavit dated February 12, 2014, Mr. Mehta states that at the time of
the plaintiff's accident he and his estranged wife, Neelam Mehta, were the record owners
of the condominium unit, a single family residence. He states that he is separated from
his wife and she has not lived at the condominium for over 2½ years. He states that
she had no knowledge or involvement in the remodeling project. He states that he
entered into an agreement with third-party defendant, Mario Construction, to perform
remodeling on the condominium unit. He supplied documentation to the Condominium
regarding the proposed construction and received approval from them for the
commencement of the job. He states that prior to the work being commenced he left the
country on business and to visit family and remained out of the country for 3- 4 weeks.
The building management allowed the contractors into the apartment using a master set
of keys. During his absence he had no contact with the building management, with the
condominium, or with Mario Construction. He states that the alleged incidnt occurrred
during his absence. He states that at no time prior to the incident did he do anything to
control or direct any work by the contractor or any of his subcontractors. He states that he
supplied no tools or materials [*6]for the project. He
states that the actual work conditions, including the methods and means of work were
entirely within the knowledge and control of the third-party defendant, Mario
Construction and his personnel and subcontractors including the plaintiff.
Counsel for the Mehtas contends that plaintiff's alleged violations of Labor
Law 240(1) and 241(6) must be dismissed because those provisions of the Labor Law, by
their terms, do not apply to one and two-family homes where the owner neither directs or
controls the work. Counsel contends that the owners of one and two-family homes are
entitled to a "homeowners exemption from liability." Counsel asserts that the express
language of sections 240(1) and 241(6) focus on whether the homeowner supervised the
methods and manner of work (see Ortega v Puccia, 57 AD3d 54 [2d Dept. 2008][the language
of Labor Law § 240 (1) expressly exempts owners of one and two-family dwellings
who contract for but do not direct or control the work. This exemption is intended to
protect residential homeowners lacking in sophistication or business acumen from their
failure to recognize the necessity of insuring against the strict liability imposed by the
statute]; Boccio v. Bozik,
41 AD3d 754[2d Dept. 2007][owners and contractors are subject to liability
pursuant to Labor Law § 240 (1) and § 241 (6), except owners of one-and
two-family dwellings who contract for but do not direct or control the work]).
Here, counsel contends that Mr. Mehta lived in a one family dwelling and
that there is no evidence in the record indicating that Mehta supervised the methods and
manner of the plaintiff's work. Counsel asserts based upon Mr. Mehta's affidavit, that Mr.
Mehta was out of town while the construction was ongoing and at the time of the alleged
accident. Further, as stated above, Mr. Mehta also stated that his wife moved from the
residence over two years ago. Counsel states that the testimony at the hearing showed
that the employer supplied the ladder and provided all of the direction and control over
plaintiff's work. Mehta asserts that the he demonstrated his entitlement to judgment as a
matter of law by establishing that he is entitled to the protection of the homeowners
exemption because he and his wife had no role in directing or controlling the work being
performed at their residence (citing Jumawan v Schnitt, 35 AD3d 382 [2d Dept. 2006][an
owner of a one-or two-family dwelling is exempt from liability under Labor Law
§§ 240 and 241 unless he or she directed or controlled the work being
performed]).
With respect to the cause of action under Labor Law § 200, counsel
asserts that there can be no liability under this section against an owner unless the owner
had actual or constructive [*7]knowledge of the defective
condition complained of and exercised supervision and control over the work (see
Wojcik v 42nd St. Dev. Project, Inc., 386 F.Supp. 2d 442 SDNY 2005][the sine
qua non of a § 200 action against an owner or general contractor is that the
defendant maintained supervisory control over the method employed by the
subcontractor in accomplishing a specific task, operation or activity]; Wilson v City
of New York, 89 F.3d 32 [2d Cir. NY 1996][an owner is not liable under § 200
unless it had "actual or constructive notice of the condition complained of and exercised
supervision or control over the work performed by the plaintiff]). Counsel claims that the
courts have held that Labor Law § 200 and common law negligence claims must be
dismissed in the absence of proof of the owner's actual control or supervision.
Here, defendant claims that there was neither supervision or control by the
unit owner over plaintiff's work nor any notice on his part of a defective condition.
Counsel asserts that the plaintiff does not describe any dangerous or defective condition
in the apartment and provides no reason why the ladder slipped. It is alleged that
plaintiff's use of the ladder was under the control of the plaintiff and the third-party
defendant. Counsel states there is no proof in the record that the Mehta defendants
caused or created any kind of a dangerous condition that was a proximate cause of the
plaintiff's fall or that they could have had notice of any alleged dangerous condition
created during the renovation project. Counsel states that the mere fact that the ladder
slipped does not support the claim of an inherently dangerous condition.
Plaintiff's counsel, Heather E. Myers Esq. does not oppose the summary
judgment motion of the Condominium. However, with respect to the cross-motion by the
Mehta defendants, counsel asserts that the motion is premature as she has not yet deposed
the defendant and has not been able to explore whether the homeowner exemption
applies to the Mehta's Unit. She states that she seeks to inquire at a deposition whether
the unit is used for commercial purposes or whether any other exceptions to the one
family exemption of Labor Law §§ 240 and 241(6) may apply herein.
Counsel for Mario Construction has submitted an affirmation in support of
the Mehta's Motion adopting all of the arguments made by the Mehta defendants in favor
of summary judgment.
Upon review and consideration of the defendants' respective motion and
cross-motion for summary judgment, plaintiff's affirmation in opposition and defendants'
reply thereto, this [*8]Court finds as follows:
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]).
The Mehta defendants made a prima facie showing of their entitlement to
judgment as a matter of law dismissing the cause of action alleging a violation of Labor
Law § 240(1) and 241(6) based upon the applicability of the one and two-family
homeowner exemption (see DiMaggio v. Cataletto, 117 AD3d 984 [2d Dept. 2014]; Dougherty v O'Connor, 85
AD3d 1090 [2d Dept. 2011]; Castellanos v United Cerebral Palsy Assn. of Greater Suffolk,
Inc., 77 AD3d 879[2d Dept. 2010]). The "homeowner's exemption" to liability
under Labor Law § 240(1) "is available to owners of one and two-family dwellings
who contract for but do not direct or control the work'" (Holifield v Seraphim, LLC, 92
AD3d 841[2d Dept. 2012]). Here, the defendant submitted an affidavit stating that
his unit was a one family home and the plaintiff testified at his hearing that the Mehta's
unit consisted of four bedrooms and a living room. Although the plaintiff contends that
the motion is premature in that Mr. Mehta has not ben deposed with regard to his use of
the premises, counsel's contention that the premises may be used for commercial
purposes is speculative. The mere hope or speculation that evidence sufficient to defeat a
motion for summary judgment may be uncovered during the discovery process is
insufficient to deny the motion (see Pina v Merolla, 34 AD3d 663[2d Dept. 2006]). In addition,
the defendants demonstrated, prima facie, that Mehta was out of town at the time the
renovations were occurring, that he did not supply the ladder and did not direct or control
the method or manner of the work (see Nai Ren Jiang v Shane Yeh, 95 AD3d 970 [2d Dept. 2012];
Pacheco v. Halstead
Communications, Ltd., 90 AD3d 877 [2d Dept. 2011][the defendants made a
prima facie showing of entitlement to judgment as a matter of law dismissing the causes
of action alleging violations of Labor Law § 240 (1) and § 241 (6) insofar as
asserted against them by demonstrating that they were the owners of a one or two-family
dwelling who contracted for but did not direct or control the work that allegedly caused
the plaintiff's injuries]; Jumawan v Schnitt, 35 AD3d 382 [2d Dept. 2006];
Decavallas v Pappantoniou, 300 AD2d 617 [2d Dept. 2002]).
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]). Claims involving Labor Law § 200 generally fall into two categories: those
where workers are injured as a result of the methods or manner in which the work is
performed, and those where workers are injured as a result of a defect or dangerous
condition existing on the premises (see McLean v 405 Webster Ave. Associates, 98 AD3d 1090
[2nd Dept. 2012]; Cappabianca
v Skanska USA Bldg. Inc., 99 AD3d 139 [1st Dept 2012]; Ortega v Puccia, 57 AD3d
54 [2d Dept. 2008]). Where an accident is the result of a contractor's or worker's
means or methods, it must be shown that a defendant exercised actual supervision and
control over the activity, rather than possessing merely general supervisory authority (Mitchell v New York Univ., 12
AD3d 200[1st Dept 2004]).
However, liability for a violation of Labor Law § 200 and common-law
negligence may also be imposed upon a property owner where the plaintiff's injuries
arose not from the manner in which the 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]).
This Court does not find that the evidence is sufficient to demonstrate that
there was a defective condition on the premises. Plaintiff only alleges that the ladder or
its use was defective. In addition, as stated above, the plaintiff failed to show that the
homeowner exercised supervision and control over the work performed at the site, or had
actual or constructive notice of an allegedly unsafe condition. There is no evidence that
the Mehtas actually controlled the manner in which the work was performed. In fact, it
has been shown that the defendant was out of the house during the accident and
renovation period.
Accordingly, this Court finds that there is insufficient evidence to establish
that defendant supervised, directed or controlled the plaintiff in the means and methods
of his work (see Patino v
Drexler, 116 AD3d 534 [1st Dept. 2014]; Youseff v Malik, 112 AD3d 617 [2d Dept. 2013]). Further,
no issue of fact [*9]has been raised as to whether the
defendants created an allegedly defective condition on the premises, or that the
homeowner had actual or constructive notice of a dangerous condition (see DiMaggio v Cataletto, 117
AD3d 984 [2d Dept. 2014]; Mondone v Lane, 106 AD3d 1062 [2d Dept. 2013]).
Accordingly for all of the above stated reasons it is hereby,
ORDERED, that the motion of defendant DAG HAMMARSKJOLD
TOWER CONDOMINIUM for an order granting summary judgment on the issue of
liability dismissing the plaintiff's complaint and all cross-claims is granted, and the
plaintiff's complaint against said defendants is dismissed and it is further,
ORDERED, that the cross-motion of VINIT MEHTA and NEELAM
MEHTA for an order granting summary judgment on the issue of liability dismissing the
plaintiff's complaint and all cross-claims is granted and the plaintiff's complaint against
said defendants is dismissed, and it is further,
ORDERED that the Clerk of Court is directed to enter Judgment
accordingly.
Dated: September 29,2014
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.\