Sinchi v Aloia

[*1] Sinchi v Aloia 2006 NY Slip Op 52706(U) [25 Misc 3d 1219(A)] Decided on October 27, 2006 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2006
Supreme Court, Bronx County

Julio Silvio Sinchi, Plaintiff

against

Mario Aloia, CAROL ALOIA, JORGE PEREIRA CONSTRUCTION, INC., J. VANEGAS CARPENTRY, INC., JOSE VANEGAS CARPENTRY, and JV CARPENTRY, Defendants



25178/2003

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues to recover for personal injuries he sustained February 22, 2002, when he fell through a hole in the second floor of a house owned by defendants Mario and Carol Aloia, which co-defendants were constructing, and where plaintiff was employed as a construction worker. The Aloias move and defendant Jorge Pereira Construction, Inc., cross-moves for summary judgment dismissing the complaint and cross-claims against these defendants, on the grounds that they are not responsible for plaintiff's injury. C.P.L.R. § 3212(b). Plaintiff cross-moves for summary judgment on Mario Aloia's liability under New York Labor Law § 240(1). C.P.L.R. § 3212(b) and (e).

In an order dated May 26, 2005, the court granted plaintiff's unopposed motion for a default judgment against defendants J. Vanegas Carpentry, Inc., Jose Vanegas Carpentry, and JV Carpentry on their liability. At oral argument of the current motions, plaintiff voluntarily discontinued his claims against all defendants under Labor Law § 241-a. See C.P.L.R. § 3217(a)(1). Upon oral argument, and after attempts to settle the action, the court grants the Aloia defendants' motion in part, grants Pereira Construction's cross-motion, and conditionally grants plaintiff's cross-motion, each for the reasons explained below.

II.SUMMARY JUDGMENT STANDARDS

Unless the court sets another deadline, a summary judgment motion "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." C.P.L.R. § 3212(a); Perini Corp. v. City of New York, 16 AD3d 37, 39 (1st Dep't 2005). See Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 128 (1999). It is now beyond dispute that, even though plaintiff and Pereira Construction cross-moved for summary judgment after the 120 day deadline, their cross-motions are timely, as they responded to the Aloia defendants' pending timely motion for summary judgment dismissing both the complaint and Pereira Construction's cross-claims against the Aloias. James v. Jamie Towers Hous. Corp., 294 AD2d 268, 272 (1st Dep't 2002), aff'd, 99 NY2d 639 (2003); Altschuler v. Gramatan Mgt., Inc., 27 AD3d 304 (1st Dep't 2006); Osario v. BRF Constr. Corp., 23 AD3d 202, 203 (1st Dep't 2005).

To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of [*2]

law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384 (2005); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003); Sheehan v. Gong, 2 AD3d 166, 168 (1st Dep't 2003). If the moving parties satisfy this standard, the burden shifts to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d at 315; Ruggiero v. Cardella Trucking Co., 16 AD3d 342, 344 (1st Dep't 2005); Sheehan v. Gong, 2 AD3d at 168. In evaluating the evidence for purposes of each motion, the court must accept the opposing parties' version of the facts as true and construe the evidence in the light most favorable to the opponents. Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d at 315; Maldonado v. Metropolitan Life Ins. Co., 289 AD2d 176 (1st Dep't 2001); Garcia v. Martin, 285 AD2d 391, 392 (1st Dep't 2001). The court must deny summary judgment if the moving parties fail to meet their initial burden, despite any insufficiency in the opposition. Roman v. Hudson Tel. Assoc., 15 AD3d 227, 228 (1st Dep't 2005); Potter v. NYC Partnership Hous. Dev. Fund Co., Inc., 13 AD3d 83, 85 (1st Dep't 2004).

III.PLAINTIFF'S LABOR LAW § 200 AND ORDINARY NEGLIGENCE CLAIMS A.Defendants' Supervisory Control Over Plaintiff's Work

If a dangerous condition causing plaintiff's injury arose from a contractor's work, for the premises' owners, any general contractor, or another contractor to be liable for a violation of Labor Law § 200 or for ordinary negligence, they must have had authority to control the activity that caused injury. Rizzuto v. Wegner Contr. Co., 91 NY2d 343, 352 (1998); Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993). Direct supervision over plaintiff's work or control over the work's safety establishes the requisite supervisory control. Rizzuto v. Wegner Contr. Co., 91 NY2d at 352-53; Havlin v. City of New York, 17 AD3d 172, 172-73 (1st Dep't 2005); Landa v. City of New York, 17 AD3d 180, 182 (1st Dep't 2005); McGuinness v. Hertz Corp., 15 AD3d 160, 161 (1st Dep't 2005).

While Mario Aloia, in his deposition testimony, admitted he was at the worksite three days per week, including when plaintiff was injured, hired the contractors, and provided the building materials for the contractors, he denied directing plaintiff's work. Pereira Construction's owner Jorge Pereira, at his deposition, testified that neither he nor any of his workers was at the worksite when plaintiff was injured and denied any responsibility for covering the opening in the floor through which plaintiff fell. Plaintiff himself testified at his deposition that only Jose Vanegas, plaintiff's employer and the carpentry contractor, instructed plaintiff how to cut and apply the plywood walls he was working on, directed him to work on the second floor, and provided him the equipment for the work. All this evidence demonstrates only that Aloia and Pereira Construction retained indirect overall supervision and coordination responsibilities insufficient to trigger liability. Singh v. Black Diamonds LLC, 24 AD3d 138, 140 (1st Dep't 2005); Mitchell v. New York Univ., 12 AD3d 200, 201 (1st Dep't 2004); De [*3]La Rosa v. Philip Morris Mgt. Corp., 303 AD2d 190, 192 (1st Dep't 2003). Plaintiff's admissions that before his injury plaintiff never met Aloia or Pereira provide corroborative indications that neither Aloia nor Pereira Construction maintained direct supervisory control over plaintiff's work. Malloy v. Madison Forty-Five Co., 13 AD3d 55, 57 (1st Dep't 2004).

Aloia's observation of the work to ensure it complied with specifications does not render his supervision more direct nor give him the requisite level of control. Mitchell v. New York Univ., 12 AD3d at 201; Scott v. American Museum of Natural History, 3 AD3d 442, 443 (1st Dep't 2004); Dalanna v. City of New York, 308 AD2d 400 (1st Dep't 2003). Although Aloia instructed plaintiff's employer and the electrical and plumbing contractors when to commence work, he did not coordinate their efforts or schedule their work further, so as to demonstrate supervisory control. Rizzuto v. Wegner Contr. Co., 91 NY2d at 352-53; Freitas v. New York City Tr. Auth., 249 AD2d 184, 186 (1st Dep't 1998).

The unrebutted evidence that Pereira Construction's masonry work was separate from plaintiff's work, as well as that Pereira and his employees were absent from the worksite when plaintiff was injured, further undermines a claim of Pereira Construction's supervisory control over plaintiff's work. Sparendam v. Lehr Constr. Corp., 24 AD3d 388, 390 (1st Dep't 2005); Landa v. City of New York, 17 AD3d at 182. Plaintiff emphasizes the evidence that the opening in the floor was where the masons were to build a chimney, and before his injury, preparatory to the chimney construction, they ran plumb lines up to the first floor ceiling, through which the hole in the second floor protruded. Even assuming these facts, however, under the standards set forth above, plaintiff has not shown, before the masons began building the chimney up through the hole, that it was in an area of work over which Pereira Construction had authority. Russin v. Louis N. Picciano & Son, 54 NY2d 311, 317 (1981); Smith v. McClier Corp., 22 AD3d 369, 371 (1st Dep't 2005); Hutchinson v. City of New York, 18 AD3d 370, 371 (1st Dep't 2005). See Morales v. Spring Scaffolding, Inc., 24 AD3d 42, 47-48 (1st Dep't 2005). B.Defendants' Responsibility for the Dangerous Floor

Defendant building owners and masonry contractor Pereira Construction are also liable for a violation of Labor Law § 200 and for ordinary negligence if they created the defective condition that caused plaintiff's injury, Singh v. Young Manor, Inc., 23 AD3d 249 (1st Dep't 2005); Murphy v. Columbia Univ., 4 AD3d 200, 201-202 (1st Dep't 2004), or had actual or constructive notice of the defect and the responsibility to correct that condition. Singh v. Black Diamonds LLC, 24 AD3d at 140; Mitchell v. New York Univ., 12 AD3d at 201; Cruz v. Toscano, 269 AD2d 122, 123 (1st Dep't 2000); Greenfield v. New York Tel. Co., 260 AD2d 303, 304 (1st Dep't 1999). No party claims these defendants' creation of the hole in the floor through which plaintiff fell. The unrebutted evidence that plaintiff's employer constructed the floor and the opening demonstrates that neither the Aloias nor [*4]Pereira Construction created the defective condition and that it instead arose from another contractor's methods, rather than an inherent defect in the property. Mitchell v. New York Univ., 12 AD3d 200; Dalanna v. City of New York, 308 AD2d 400. Since defendants' supervisory control is lacking, their notice alone is insufficient to impose liability on them based on Labor Law § 200 or ordinary negligence. Singh v. Black Diamonds LLC, 24 AD3d at 140; Havlin v. City of New York, 17 AD3d at 172-73; Dalanna v. City of New York, 308 AD2d 400; Reilly v. Newireen Assocs., 303 AD2d 214, 219 (1st Dep't 2003).

IV.HOMEOWNERS' EXEMPTION FROM THE LABOR LAW

Labor Law §§ 240(1) and 241(6) exempt from their application owners of one or two family dwellings, who merely contract for work covered by the statutes, but do not direct or control it. Stejskal v. Simons, 3 NY3d 628, 629 (2004); Cannon v. Putnam, 76 NY2d 644, 649 (1990); Wright v. Bedevian, 6 AD3d 258, 259 (1st Dep't 2004). As long as the home is used partly for residential purposes, the exemption applies even if the premises are used for an incidental commercial purpose as well. Bartoo v. Buell, 87 NY2d 362, 367 (1996); Cannon v. Putnam, 76 NY2d at 651; Valencia v. Calero, 5 AD3d 254, 255 (1st Dep't 2004). Since the exemption's purpose is to shield only homeowners who are unlikely to understand the need to insure against the liability imposed by Labor Law §§ 240 and 241, the exemption does not extend to work performed on homes used for commercial purposes. Lombardi v. Stout, 80 NY2d 290, 296 (1992); Van Amerogen v. Donnini, 78 NY2d 880, 882 (1991).

Defendants bear the burden to demonstrate that they fall within the exemption. Lombardi v. Stout, 80 NY2d at 297. Doubts as to whether they qualify for the exemption must be resolved by applying the Labor Law's requirements to the homeowners, rather than exempting them. NY Statutes § 213; Van Amerogen v. Donnini, 78 NY2d at 882; Garcia v. Martin, 285 AD2d at 392. See Mandelos v. Karavasidis, 86 NY2d 767, 769 (1995).

The parties stipulated that the Aloia defendants' deed to the home where plaintiff was injured was authenticated and admissible, thus establishing that the Aloias were owners of a one family home. Mario Aloia's admission to plaintiff's investigator Eliette Alvarez, however, that Aloia was selling the home, demonstrates a commercial purpose requiring adherence to the Labor Law's requirements, rather than the exemption. Lombardi v. Stout, 80 NY2d at 297; Zangiacomi v. Hood, 193 AD2d 188, 194 (1st Dep't 1993); Morgan v. Rosselli, 23 AD3d 356, 357 (2d Dep't 2005).

Defendants maintain that the court may not consider Alvarez's affidavit because plaintiff did not previously disclose Alvarez as a witness or Aloia's admission and thus failed to comply fully with defendants' requests for disclosure of witnesses and admissions. Although such noncompliance with a disclosure request may be a ground for refusing to consider an affidavit opposing summary judgment, defendants nowhere show that they requested disclosure of any witnesses or admissions. Salzo [*5]v. Bedding Showcase, 238 AD2d 180, 181 (1st Dep't 1997); Robinson v. New York City Hous. Auth., 183 AD2d 434, 435 (1st Dep't 1992); Gralnik v. Brighton Beach Assoc., 3 AD3d 518 (2d Dep't 2004).

At oral argument, defendants conceded that any request for witness disclosure was limited to witnesses of plaintiff's injury, the condition that caused his injury, or defendants' notice of the condition. Alvarez does not fit in any of these categories.

Nor, until defendants' summary judgment motion, would Aloia's statement that the home was for sale be an admission, since defendants did not affirmatively plead the homeowner exemption in their answer and do not show that they otherwise raised this defense before serving their motion. Even assuming defendant did request disclosure of oral admissions, the court may consider an affidavit in opposition to summary judgment despite noncompliance with such a request if plaintiff furnishes a reasonable excuse for that noncompliance. Mascucci-Matarazzo v. Hoszowski, 291 AD2d 208 (1st Dep't 2002); Ortega v. New York City Tr. Auth., 262 AD2d 470 (1st Dep't 1999). Here, that excuse is the absence of any basis to assume that Aloia's statement undermined any of his defenses. Therefore the court may and does rely on Alvarez's affidavit in deciding the Aloia defendants' motion.

V.PLAINTIFF'S LABOR LAW § 240(1) CLAIM

At oral argument, plaintiff also clarified that his claims under Labor Law §§ 240(1) and 241(6) are against the Aloia defendants only. A failure to provide adequate safety devices to protect against elevation related hazards at the site where plaintiff was performing construction, as required by Labor Law § 240(1), imposes absolute liability on the Aloias, as the premises' owners, if that failure proximately caused his injury. Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46, 50 (2004); Blake v. Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 (2003); Striegel v. Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 977 (2003); Rocovich v. Consolidated Edison Co., 78 NY2d 509, 513 (1991). To establish defendants' liability under this statute, plaintiff must show a causal connection between a violation and his injury. Selja v. American Home Prods. Corp., 307 AD2d 840, 841 (1st Dep't 2003).

Plaintiff's fall from the second floor to the basement below, after stepping on plywood covering an opening in the floor, establishes an elevation related risk. John v. Baharestani, 281 AD2d 114, 118 (1st Dep't 2001); Becerra v. City of New York, 261 AD2d 188, 190 (1st Dep't 1999); Serpe v. Eyris Prods., 243 AD2d 375, 377 (1st Dep't 1997); Carpio v. Tishman Constr. Corp. of NY, 240 AD2d 234, 235 (1st Dep't 1997). Since the parties do not dispute that the plywood either failed to cover the entire opening or broke, plaintiff has shown a Labor Law § 240(1) violation entitling him to summary judgment on Mario Aloia's liability. John v. Baharestani, 281 AD2d at 119; Becerra v. City of New York, 261 AD2d at 190; Carpio v. Tishman Constr. Corp. of NY, 240 AD2d at 236. [*6]

Taking the complaint at face value and assuming plaintiff's Labor Law § 240(1) claim was also against Pereira Construction, Pereira's testimony demonstrates that Pereira Construction is not liable under that statute. In addition to Pereira's testimony that Pereira and his employees were absent from the worksite when plaintiff was injured, Pereira specifically denies ever being instructed to cover the floor opening that plaintiff's employer created. Since Pereira Construction was neither the premises' owner nor the owners' general contractor, the delegated authority to this defendant to direct, control, or correct the worksite conditions or activity that caused plaintiff's injury, as is required for this defendant's liability under § 240(1), is lacking. Russin v. Louis N. Picciano & Son, 54 NY2d at 318; Morales v. Spring Scaffolding, Inc., 24 AD3d at 46-47; Hutchinson v. City of New York, 18 AD3d at 371. See Walls v. Turner Constr. Co., 4 NY3d 861, 863-64 (2005).

VI.PLAINTIFF'S LABOR LAW § 241(6) CLAIM

The duty to comply with the regulations under Labor Law § 241(6) is non-delegable, also subjecting the premises' owners or their general contractor to liability for a violation even if they exercised no supervision or control over the worksite and had no notice of worksite conditions. Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 878 (1993); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-503 (1993). While a failure to take the safety measures required by this statute, proximately causing injury, does not impose absolute liability absent negligence, the statute imposes liability on defendant owners for injuries caused by another party's negligence regardless of these defendants' own negligence. Rizzuto v. Wegner Contr. Co., 91 NY2d at 349-50; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502 n.4.

Upon defendants' summary judgment motion, defendants bear the burden to demonstrate the inapplicability of the regulatory provisions plaintiff claims were violated. Wyckoff v. Jujamcyn Theaters, Inc., 11 AD3d 319, 320 (1st Dep't 2004); Herrera v. Persaud, 276 AD2d 304, 305 (1st Dep't 2000). Among the provisions plaintiff relies on, 12 N.Y.C.R.R. § 23-1.7(b)(1)(i) requires that:

Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).

Subdivision (iii) of this provision further requires that:

Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:

(a)Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 inches, whichever is less, beneath the opening; or

(b)An approved life net installed not more than five feet [*7]beneath the opening; or

(c)An approved safety belt with attached lifeline which is properly secured to a substantial fixed anchorage.

Although 12 N.Y.C.R.R. § 23-1.7(b) does not define "hazardous opening," the term applies to openings through which a person could fall. Messina v. City of New York, 300 AD2d 121, 123 (1st Dep't 2002); Piccuillo v. Bank of NY Co., 277 AD2d 93, 94 (1st Dep't 2000).

Furthermore, 12 N.Y.C.R.R. § 23-2.4(c)(2) requires that:

In the construction of a building or other structure having single wood flooring or any other flooring system, the floor immediately below the story where the floor joists are being installed shall be kept covered. Such flooring shall be at least two inches thick full size or shall be of material of equivalent strength and be laid tight and secure.

Both 12 N.Y.C.R.R. § 23-1.7(b)(1) and 12 N.Y.C.R.R. § 23-2.4(c)(2) are sufficiently specific to support a Labor Law § 241(6) claim. Uluturk v. City of New York, 298 AD2d 233, 234 (1st Dep't 2002); O'Connor v. Lincoln Metrocenter Partners, 266 AD2d 60, 61 (1st Dep't 1999); Claus v. John Hancock Mut. Life Ins. Co., 254 AD2d 102, 103 (1st Dep't 1998).

Plaintiff's unrebutted testimony that the opening was only partially covered by plywood less than an inch thick, in the absence any evidence of a safety net underneath or a safety belt and lifeline attached to plaintiff, demonstrates a violation of both these sections, for which the Aloias are liable under Labor Law § 241(6). See Uluturk v. City of New York, 298 AD2d at 234. Similarly to liability under Labor Law § 240(1) discussed above, however, the absence of authority delegated to Pereira Construction to supervise and control plaintiff's work and work area defeats any claim of this defendant's liability under Labor Law § 241(6). Russin v. Louis N. Picciano & Son, 54 NY2d at 318; Morales v. Spring Scaffolding, Inc., 24 AD3d at 46-47; Smith v. McClier Corp., 22 AD3d at 371; Hutchinson v. City of New York, 18 AD3d at 371.

VII.CONCLUSION

Consequently, the court grants defendant Pereira Construction's cross-motion for summary judgment and dismisses the complaint and all cross-claims against Pereira Construction on the various grounds discussed above, including plaintiff's voluntary discontinuance of any Labor Law § 240(1), § 241(6), or § 241-a claim against this defendant. C.P.L.R. §§ 3212(b), 3217(a)(1) and (b). Similarly, the court grants the motion by defendants Mario Aloia and Carol Aloia for summary judgment to the extent of dismissing plaintiff's Labor Law §§ 200 and 241-a and ordinary negligence claims against these defendants. C.P.L.R. §§ 3212(b) and (e), 3217(a)(1) and (b). While plaintiff voluntarily discontinues his Labor Law § 241-a claim against all defendants, that statute does not apply in any event, because he fell into an opening where a chimney was to be built rather than [*8]an elevator shaftway, a hatchway, or a stairwell. Nichols v. Deer Run Investors, 204 AD2d 929, 930 n.1 (3d Dep't 1994); Kelly v. Bruno & Son, 190 AD2d 777, 778 (2d Dep't 1993). The court dismisses Pereira Construction's cross-claim as moot. The court denies the Aloia defendants' motion in all other respects.

Although Alvarez's affidavit is grounds to withstand summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims against the Aloias, the affidavit would be slim grounds to grant plaintiff summary judgment on his § 240(1) claim. Given Mario Aloia's vigorous dispute of that affidavit's contents, moreover, that relief would be impermissible. Therefore the court grants plaintiff's cross-motion for summary judgment on his Labor Law § 240(1) claim against defendant Mario Aloia only on the condition that he does not prevail on his homeowner exemption defense at trial. C.P.L.R. § 3212(b) and (e).

This decision constitutes the court's order. The court will provide copies to the attorneys for the appearing parties.

DATED: October 27, 2006

_____________________________

LUCY BILLINGS, J.S.C.