DeSabato v 674 Carroll St. Corp.

[*1] DeSabato v 674 Carroll St. Corp. 2005 NY Slip Op 52404(U) [24 Misc 3d 1236(A)] Decided on June 13, 2005 Supreme Court, Kings County Dabiri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2005
Supreme Court, Kings County

Scott DeSabato, Plaintiff, v 674 Carroll Street Corp., Defendant.



22682/03



Counsel:

Plaintiff: Kelner & Kelner(212)425-0700

Defendant, 3d -Party Plaintiff: Rebore, Thorpe & Pisarello, P.C. (631)249-6600

3d Party Defendant: Salzman & Salzman (718)624-2394

Gloria Dabiri, J.

Upon the foregoing papers (1) third-party defendant Wendy Fleischer ("Fleischer") moves for an order pursuant to CPLR 3212 dismissing the third-party complaint insofar as asserted against her (2) defendant 674 Carroll Street Corp. ("674 Carroll") moves for summary judgment dismissing the complaint as against it and (3) plaintiff Scott DeSabato ("DeSabato") cross-moves, pursuant to CPLR 1003, for an order granting leave to amend the complaint to add Fleischer as a party defendant, as well as for related relief with respect to the filing and service of a supplemental summons and amended complaint.

BACKGROUND AND CONTENTIONS

On September 3, 2002, plaintiff, an employee of A.S.U. Renovators, Inc., a general contractor, allegedly sustained injuries while performing renovation work to the kitchen of a cooperative apartment unit located at 674 Carroll Street in Brooklyn, New York. The building was owned by 674 Carroll. Fleischer is a shareholder in 674 Carroll and holds the proprietary lease for, and resides in, unit No.4, the unit under construction. Plaintiff alleges that he fell from an elevated work area in the subject premises while performing renovations, and while Fleischer was present. In his verified complaint plaintiff alleges causes of action under Labor Law §§ 200, 240 (1) and 241 (6). [*2]

In support of her motion for summary judgment Fleischer affirms that she is the owner of a one-family dwelling. She maintains that she made periodic visits to the apartment during construction, on an irregular basis, for the sole purpose of inspecting the progress of the work and discussing change orders, but that she did not direct, supervise or control the method or manner of the work. Accordingly, she contends that she is not liable under the Labor Law. Fleischer opposes plaintiff's cross-motion which seeks an order adding her as a direct defendant.

674 Carroll maintains that depositions are required before a decision on summary judgment can be made, especially since plaintiff's Bill of Particulars does not explain the manner in which plaintiff was injured, the cause of the accident or the work being performed at the time of the accident. Further, in opposition to Fleischer's motion and in support of its own motion for summary judgment, 674 Carroll asserts, through the affidavit of its president David Meltzer, that it did not contract to perform any work, did not supervise, direct or control any of the workers and was not involved in the project in any way. 674 Carroll contends that Fleischer, the proprietary lessee, and not it, is the "owner" within the meaning of Labor Law §§ 240 (1) and 241.

Plaintiff, in opposing 674 Carroll's motion, also contends that requested discovery is outstanding, requiring denial of both the motion and cross-motion, and that defendants' contentions that they are exempt from liability under §§ 240 (1) and 241 (6) of the Labor Law is without merit.

DISCUSSION

Defendant's and third-party defendant's motions for summary judgment

Labor Law § 240 (1) provides, in pertinent part, that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed" (emphasis provided).

Labor Law § 240 (1) was enacted to "prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to accomplish this goal, the statute places the responsibility for safety practices and safety devices on owners and general contractors and their agents who are "best situated to bear that responsibility" (Id. at 500; see also, Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 [2003]; Zimmer v Chemung County Perf. Arts, 65 NY2d 513, 520 [1985]). Moreover, "the duty imposed by Labor Law § 240 (1) is nondelegable and ... an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or [*3]control over the work" (Ross, 81 NY2d at 500; see also, Haimes v New York Tel. Co., 46 NY2d 132, 136-137 [1978]). The statute is to be construed as liberally as possible in order to accomplish its protective goals (see Blake, 1 NY3d at 284-285; Martinez v City of New York, 93 NY2d 322, 326 [1999]).

Labor Law § 241 provides, in pertinent part, that:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

"6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith" (emphasis provided).

Labor Law § 241 (6), which was enacted to provide workers engaged in construction, demolition and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors and their agents to comply with the specific safety rules set forth in the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502). Accordingly, in order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable, given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also, Adams v Glass Fab, 212 AD2d 972, 973 [1995]).

Both statutes exclude from liability owners of one and two-family dwellings "who contract for but do not direct or control the work" (Labor Law § 240[1]; § 241 [6] [emphasis provided]). This statutory exemption removes "the burden of strict liability from such owners when they have nothing whatsoever to do with the carrying out of the work" (1980 NY Legis Ann at 266). "Thus, the phrase 'direct or control' contemplates the situation in which the owner supervises the method and manner of the work, can order changes in the specifications, reviews the progress and details of the job with the general contractor and/or provides the equipment necessary to perform the work" (Rimoldi v Schanzer, 147 AD2d 541, 545 [1989]; see also, Duda v Rouse Constr. Corp., 32 NY2d 405, 409 [1973]; Kluttz v Citron, 2 NY2d 379 [1957]; Galbraith v John B. Pike & Son, Inc., 18 AD2d 39 [1963]; Gallo v Supermarkets Gen. Corp., 112 AD2d 345 [1985]). [FN1] FN1. Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is likewise limited to those who exercise control or supervision over the methods that plaintiff employs in his work, or who have actual or constructive notice of, or are [*4]otherwise responsible for, an unsafe condition that causes an accident (Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]).

Contrary to the contention of 674 Carroll, the term "owner" as used in Labor Law §§ 240 (1) and 241 (6) has been interpreted to include the fee owner of a multi-unit co-operative apartment building (Pineda v 79 Barrow Street Owners Corp., 297 AD2d 634, 636 [2002] [fee owner and owner's agent absolutely liable under Labor Law § 240 (1)], see also, Coleman v City of New York, 91 NY2d 821, 822-823 [1997] ["when the Legislature imposed the duties of Section 240 (1) on '[a]ll ... owners' it intended to include owners in fee even though the property might be leased to another" Gordon v Eastern Ry. Supply, 82 NY2d 555, 560 [1993]), and such owners have been held absolutely liable under Labor Law § 240(1) [Id.]. [FN2] FN2. Plaintiff has not moved for summary judgment.

It has also been held that the proprietary lessee, or shareholder, of a single-family co-operative apartment is entitled to the Labor Law §§ 240 (1) and 241 (6) exemption afforded to "owners of one and two-family dwellings who contract for but do not direct or control the work." In so holding in Xirakis v 115 Fifth Avenue Corporation (226 AD2d 452, 453-454 [1996]), the Appellate Division, Second Department noted that because the purpose of the statutory exemption is to protect those owners who are not in a position to know about, or provide for, the responsibilities of absolute liability, in interpreting the term "dwellings", there is no reason to distinguish between "owners" of houses and those of apartments.

In this case, discovery, including depositions of the parties and of non-party A.S.U. Renovators, Inc., plaintiff's employer, have not occurred. As plaintiff and 674 point out, facts necessary to oppose the motions for summary judgment may be exclusively within the knowledge of the movants, including facts relating to whether Fleischer and 674 Carroll exercised supervision or control of the work being performed by plaintiff. Accordingly, denial of both motions for summary judgment, with leave to renew following completion of discovery, is warranted (Grove s v Land's End Housing Co., Inc., 80 NY2d 978,980 [1992]; Cumpston v Marcinkowska, 275 AD2d 340, 340 [2000]). The affidavits submitted by plaintiff and 674 Carroll set forth sufficient justification for denial of the motions at this time (CPLR 3212 [f]); Macutek v Lansing, 202 AD2d 823 [1994].

Plaintiff's cross-motion

CPLR 1003, in relevant part, provides that "[p]arties may be added at any stage of the action by leave of court." In support of his motion seeking leave to amend the complaint and to serve such supplemental summons and amended complaint upon Wendy Fleischer, plaintiff argues that there is no prejudice to the third-party defendant who is already a party to this action (see Rodschat v Herzog Supply Co. Inc., 208 AD2d 1167 [1994]). In reply to third-party defendant's opposition to his cross-motion, plaintiff points out that he could have commenced a separate action against Fleischer and then moved to consolidate the two actions. Accordingly, plaintiffs [*5]cross-motion to add Fleischer as a defendant is granted and plaintiff is directed to serve Wendy Fleischer with a supplemental summons and amended complaint within 20 days after entry of this order.

The foregoing constitutes the decision and order of the court.

ENTER,



J.S.C.