Villafane v. Ridge Elec. Corp.

FRANCOIS A. RIVERA, J.

Glen Devora, Esq., Jonathan D'Agostino & Associates, P.C., Staten Island, for Plaintiff.

Eric Gansberg, Esq., Staten Island, for Defendant Ridge Electirc Corporation.

Erika L. Omundson, Esq. Mintzer, Sarowitz, Zeris Ledva & Meyers, LLP, New York, for Defendants Laurie Frankel, Nina Frankel and Laurie Frankel, as Administratrix of the Estate of Thomas Traficante.

FRANCOIS A. RIVERA, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of the defendants Laurie Frankel and Nina Frankel, and Laurie Frankel, as administratrix of the Estate of Thomas Traficante (hereinafter jointly the Frankel defendants), filed on February 27, 2017, under motion sequence number nine, for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint.

-Notice of Motion

-Affirmation in support

Exhibits A–J

Affirmation in Opposition of Ridge Electric Corporation

Exhibits A–E

Memorandum of Law in Opposition

Affirmation in Reply

Affirmation in opposition of the Plaintiff

Affirmation in reply

On August 22, 2011, plaintiff George Villafane (hereinafter Villafane or plaintiff) commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. On October 21, 2015, plaintiff filed a supplemental summons. On March 29, 2012, defendant Ridge Electric Corporation (hereinafter Ridge Electric) interposed an answer. On December 17, 2015, the parties stipulated to the plaintiff amending the complaint to substitute Thomas Traficante with Laurie Frankel in her capacity as administratrix of the Estate of Thomas Traficante. By joint answer dated January 19, 2016, Laurie Frankel, Nina Frankel and Laurie Frankel in her capacity as administratrix of the Estate of Thomas Traficante interposed a joint answer with affirmative defenses and counter claims. By stipulation June 6, 2012, the plaintiff discontinued the causes of action against the defendant Trost Bros, Inc. On December 27, 2016 a note of issue was filed.

The verified complaint, bill of particulars and plaintiff's deposition transcript allege the following salient facts. On March 18, 2009, the plaintiff was working at the home of defendants Laurie Frankel and Nina Frankel, a two family house located at 21 Beach Avenue, Staten Island, New York (hereinafter the premises). On that date he was using a tool called a grinder provided to him by his employer Ridge Electric Corporation to cut the back splash of the kitchen in an effort to install a specific type of electrical outlet. While doing so the grinder bounced back cutting his fingers.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts ( Giuffrida v. Citibank, 100 N.Y.2d 72 [2003] ).

A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993] ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

A party opposing a motion for summary judgment is obligated "to lay bare his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist ( Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065 [1979] ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions ( Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 [1991] ).

"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" ( People ex rel. Spitzer v. Grasso, 50 A.D.3d 535, 544, 858 N.Y.S.2d 23 [1st Dept 2008] ; citing Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 [2nd Dept 1990] ).

Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 [1991] ). To recover, the injured plaintiff must have been engaged in a covered activity "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" ( Labor Law § 240[1] ; see Panek v. County of Albany, 99 N.Y.2d 452, 457 [2003] ) and must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ( Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603 [2009] ). To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the injured plaintiff's injuries ( Corchado v. 5030 Broadway Properties, LLC, 103 A.D.3d 768, 962 N.Y.S.2d 185 [2nd Dept 2013] ).

Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240(1) (Id. ). Falling object liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured but may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell ( Podobedov v. E. Coast Const. Grp ., Inc., 133 AD3d 733, 735 [2nd Dept 2015] [internal citations omitted] ).

To hold a party liable, as an agent of general contractor, for violations of the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for workers engaged in construction, demolition, and excavation work, there must be a showing that it had the authority to supervise and control the work. The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right ( Bakhtadze v. Riddle, 56 A.D.3d 589, 868 N.Y.S.2d 684 [2nd Dept 2008] ).

To prevail on a motion for summary judgment in a Labor Law § 240(1) falling object case, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking ( Romero v. 2200 N. Steel, LLC, 148 A.D.3d 1066, 1067, 50 N.Y.S.3d 158 [2nd Dept 2017] [internal citations omitted] ). Labor Law § 240(1) does not automatically apply simply because an object fell and injured a worker; [a] plaintiff must show that the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute (Id. ). Where the hoisting or securing of a device of the kind enumerated in the statute would not have been necessary or even expected Labor Law § 240(1) does not apply (see Romero, 148 A.D.3d at 1067, 50 N.Y.S.3d 158 citing Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259 [2001] ; Roberts v. General Elec. Co., 97 N.Y.2d 737, 738, 742 N.Y.S.2d 188, 768 N.E.2d 1127 [3rd Dept 2002] ).

Section 241 (6) of the Labor Law imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers ( Combs v. New York State Electric & Gas Corp., 82 N.Y.2d 876 [1993] ). Labor Law § 241(6) requires owners and contractors to provide "reasonable and adequate protection and safety" for workers and to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To establish liability pursuant to Labor Law § 241(6), plaintiff must plead and prove that a specific violation of the Industrial Code was the proximate cause of his accident ( Ross v. Curtis–Palmer Hydro Electric Co., 81 N.Y.2d 494 [1993] ).

In those instances when Labor Law § 241(6) applies, the duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable ( Misicki v. Caradonna, 12 N.Y.3d 511, 515 [2009] ). "To support a claim under Labor Law § 241(6)... the particular Industrial Code provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles" (Id. ). A breach of a duty imposed by a rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence (Id . ). Labor Law § 241(6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner's rule-making authority (see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494 [1993] ).

In the instant matter the plaintiff asserts that the Industrial Code violations 12 NYCRR 23–1.4 and 23–1.21(a) and (b) were violated by the defendants.

The Frankel defendants asserts that they are statutorily exempt from liability for violations of Labor Law §§ 240(1) and 240(6) as they are the owners of a one to two family dwelling who contracted for, but did not direct or control the injured plaintiff's work. It is undisputed that at the time of plaintiff's accident the defendants jointly owned the premises. "The homeowner's exemption was enacted to protect owners of one and two-family dwellings who are not in a position to realize, understand, and insure against the responsibilities of strict liability imposed by Labor Law §§ 240(1) and 241(6)" ( Abdou v. Rampaul, 147 AD3d 885, 886 [2nd Dept 2017] ) citing Ramirez v. I.G.C. Wall Sys., Inc., 140 A.D.3d 1047, 35 N.Y.S.3d 159 [2nd Dept 2013]see Cannon v. Putnam, 76 N.Y.2d 644 [1990] ). "[I]n order for a defendant to receive the protection of the homeowners' exemption, the defendant must satisfy two prongs required by the statutes. First, the defendant must show that the work was conducted at a dwelling that is a residence for only one or two families" (Abdou, 147 A.D.3d at 886, 48 N.Y.S.3d 145 citing Chowdhury v. Rodriguez, 57 AD3d 121,126 [2nd Dept 2008] ; see Labor Law §§ 240[1] and 241 ; Rodriguez v. Gany, 82 A.D.3d 863, 864, 918 N.Y.S.2d 187 [2nd Dept 2011] ). "The second requirement ... is that the defendants ‘not direct or control the work’ " (Abdou, 147 A.D.3d at 886, 48 N.Y.S.3d 145). The statutory phrase "direct or control" is construed strictly and refers to situations where the owner supervises the method and manner of the work (see Boccio v. Bozik, 41 A.D.3d 754, 755, 839 N.Y.S.2d 525 [2nd Dept 2007] ; Arama v. Fruchter, 39 A.D.3d 678, 679, 833 N.Y.S.2d 665 [2nd Dept 2007] ; Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 849, 823 N.Y.S.2d 477 [2nd Dept 2006] ; Siconolfi v. Crisci, 11 A.D.3d 600, 601, 783 N.Y.S.2d 627 [2nd Dept 2004] ; Miller v. Shah, 3 A.D.3d 521, 522, 770 N.Y.S.2d 739 [2nd Dept 2004] ).

In support of the motion the Frankel defendants have submitted, among other things, the deposition transcript of the plaintiff, Nina Frankel, Laurie Frankel and Thomas Fleming (hereinafter Fleming) on behalf of the co-defendant Ridge Electric. As a preliminary matter the Court will address the assertion by the plaintiff and Ridge Electric that the deposition transcripts annexed by the plaintiff are inadmissible because they are not signed by the deponents. The depositions of the plaintiff, Nina Frankel and Laurie Frankel are certified and therefore admissible (see David v. Chong Sun Lee, 106 A.D.3d 1044, 967 N.Y.S.2d 80 [2nd Dept 2013] ). Fleming's deposition transcript is neither signed nor certified. However, the deposition transcript is rendered admissible by Ridge Electric annexing Fleming's signed and certified transcript in support of their opposition (see David v. Chong Sun Lee, 106 A.D.3d 1044, 967 N.Y.S.2d 80 [2nd Dept.2013] ).

The plaintiff testified that he was working at the premises as part of a renovation project. On the date of the accident he met with Nina Frankel who told him where to put the fixtures and outlets. Part of the project was an upgrade to what is described as "GFI" outlets to bring the premises up to code. After meeting with Nina Frankel she left the premises to go to work. The only instructions that were given to the plaintiff by Nina Frankel was the location of the outlets and fixtures, to protect the floors, and to keep the place neat. She did not direct him on how to install the fixtures nor how to wire the outlets. She also did not provide the plaintiff with the grinder or any other tools to perform his work.

Nina Frankel testified that on the date of plaintiff's accident she waiting for the workers to arrive at her house to give certain instructions before leaving to work. She did not speak with nor see the plaintiff or any other worker that day. Laurie Frankel testified that she did not see plaintiff on the date of the accident, did not reside in that portion of the premises where the work was being completed and had no authority or direct any control of the plaintiff.

Flemming testified that he was Vice President of Ridge Electric on the date of the plaintiff's accident. He also testified that the defendants did not instruct him or his workers on the manner, method or means to perform the work.

There is no dispute as to the ownership of the premises which satisfies the first prong of the homeowner's exemption. The second prong is satisfied by the deposition transcripts which establish that the Frankel defendants did not control or supervise the work being performed. Accordingly, the Frankel defendants have presented sufficient evidence to meet their prima facie burden to establish they are entitled to the homeowner exemption. The burden now shifts to the plaintiff to raise a triable issue of fact (see Alvarez, 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

The plaintiff has failed to raise a triable issue of fact. In opposition to the motion the plaintiff cites certain portions of the deposition transcript asserting that the testimony raises a triable issue of fact as to whether the defendants directed or controlled the manner or method of the plaintiff's work. The testimony cited does not raise a triable issue of fact as to direction or control by the Frankel defendants. In fact, the deposition testimony makes clear that the Frankel defendants had limited interaction with the plaintiff and did not direct or control the manner or methods of his work.

The plaintiff also opposes the motion based on the argument that there was no written contract annexed to the motion papers. Plaintiff asserts that in absence of a written contract the Frankel defendants are not entitled to the homeowners exemption. The homeowner's exemption contained in Labor Law 241(6) and 240(1) is applicable to homeowners that have contracted for but do not supervise the work. Plaintiff reads the statute to require a written contract. Plaintiff does not rely on any authority for this proposition. There is no requirement found in Labor Law §§ 240(1) or 241(6) that the contract be written (see generally Labor Law §§ 240[1] and 241[6] ).

Labor Law § 200 is merely a codification of the common law duty placed upon owners and contractors to provide employees with a safe place to work (see Kim v. Herbert Constr. Co., 275 A.D.2d 709, 712, 713 N.Y.S.2d 190 [2nd Dept 2000] ). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises condition at a work site, and those involving the manner in which the work is performed" ( Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323 [2nd Dept 2008] ). "These two categories should be viewed in the disjunctive" (Id. ).

"Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Id.; see also Reyes v. Arco Wentworth Management Corp., 83 A.D.3d 47, 51, 919 N.Y.S.2d 44 [2nd Dept 2011] ).

"A contractor on a construction site will be liable for an injury caused by a dangerous condition on the site where it created the condition, or where, with sufficient control over the conditions on the site, the contractor failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after the contractor had actual or constructive notice of the condition" ( Nankervis v. Long Is. Univ., 78 A.D.3d 799, 911 N.Y.S.2d 393 [2nd Dept 2010] ).

"[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or ... [a] contractor [ ] cannot be had ... unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" ( Ortega, 57 A.D.3d at 61, 866 N.Y.S.2d 323 ). The determinative factor on the issue of control is not whether a [defendant] furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed" ( Eldoh v. Astoria Generating Co., L.P., 81 A.D.3d 871, 875, 917 N.Y.S.2d 289 [2nd Dept 2011]quoting Everitt v. Nozkowski, 285 A.D.2d 442, 443–444, 728 N.Y.S.2d 58 [2nd Dept 2001] ).

When an accident is alleged to involve defects in both the premises and methods and materials used at the work site, the property owner or contractor is "obligated to address the proof applicable to both liability standards" (see Reyes, 83 A.D.3d at 52, 919 N.Y.S.2d 44 ). A construction manager of the work on the subject premise, may be held liable for a violation of Labor Law § 200 if it created the condition, or where, with sufficient control over the conditions on the site, it failed to remedy the dangerous condition, or to prevent the injured worker's exposure to it, within a reasonable time after it had actual or constructive notice of the condition (see Nankervis v. Long Is. Univ., 78 A.D.3d 799, 911 N.Y.S.2d 393 [2nd Dept 2010] ).

In the instant matter, it is clear that the claim arises out of alleged defects or dangers in the methods or materials of the work. Accordingly, the Frankel's must establish that they did not have the authority to supervise or control the performance of the work. As discussed above, the Frankel defendants have established that they did not direct or control the work of the plaintiff. In opposition to the motion neither the plaintiff nor Ridge Electric raised a triable issue of fact. Accordingly, the motion is granted.

The joint motion of Laurie Frankel and Nina Frankel, and Laurie Frankel, as administratrix of the Estate of Thomas Traficante, for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint is granted.

The foregoing constitutes the decision and order of this Court.