Keyoskey v Hausler
Annotate this CaseDecided on January 6, 2009
Supreme Court, Rensselaer County
John Keyoskey, II and CANDACE KEYOSKEY, Plaintiffs,
against
Charles Hausler, KRISTEN HAUSLER, BREEZY MEADOWS FARM, LLC, NORMAN BUDKA, NORMAN BUDKA d/b/a TRI-STATE SEAMLESS GUTTERS and TRI-STATE SEAMLESS GUTTERS, Defendants.
218657
Fine, Olin & Anderman, LLP
Attorneys For Plaintiffs
Lawrence D. Lissauer, Esq., of counsel
1279 Route 300
P.O. Box 1111
Newburgh, New York 12551
O'Connor, O'Connor, Bresee and First, P.C.
Attorneys for Defendants Charles Hausler, Kristen Hausler and Breezy Meadows Farm, LLC
20 Corporate Woods Boulevard
Albany, New York 12211
Parisi, Coan & Saccocio, PLLC
Attorneys For Defendants Norman Budka, Norman Budka d/b/a Tri-
State Seamless Gutters and Tri-State Seamless Gutters
Lance R. Hartwich, Esq., of counsel
376 Broadway, 2nd Floor
Schenectady, New York 12305
Henry F. Zwack, J.
This is a personal injury action arising out of a fall from a ladder. Plaintiff John
Keyoskey, II (plaintiff) was employed by third-party defendant Norman Budka (Budka), sole
proprietor of Tri-State Seamless Gutters (Tri-State). In December 2004 defendants Charles and
Kristen Hausler (the Hauslers) contracted with Tri-State to install gutters along the roof of a
newly constructed single-family residence located on property which was, at the time, titled to
defendant Breezy Meadows Farm, LLC (Breezy Meadows). Plaintiff and co-worker James Lewis
began the gutter installation work on December 17, 2004.
Plaintiff and Lewis completed the work on three-quarters of the house without incident. The two men give completely contradictory sworn versions of what happened next, however. According to plaintiff's deposition testimony, he was climbing up an unsecured ladder in order to measure for the installation of the final gutter section along the front of the house when the ladder slipped out from under him on a patch of ice. Plaintiff fell, breaking both his ankles. As plaintiff lay for thirty to forty-five minutes on the cold ground, Lewis cleaned up the work site and put the tools back into the company truck. When he had finished, Lewis then helped plaintiff into the truck and drove him to his home. Plaintiff then telephoned his wife, telling her he had fallen off a ladder. She rushed home and, seeing plaintiff's condition, immediately called an ambulance to transport him to the hospital.
In his deposition testimony, on the other hand, Lewis contends that he and plaintiff decided to stop work early in the afternoon due to increasingly strong and unsafe winds. Lewis claims he then drove plaintiff home and subsequently learned from a neighbor that plaintiff had been attempting to clean his own gutters later that day when he fell from a ladder and injured himself.
Plaintiff (and his wife, derivatively) commenced the present action against the Hauslers and Breezy Meadows. The complaint asserts causes of action arising under Labor Law §§ 200, 240(1) and 241(6), as well as common law negligence. Defendants [*2]then impleaded Budka and Tri-State as third-party defendants on a theory of common law indemnification. Issue has been joined and discovery is complete.
Before the Court at present is a motion by the Hauslers and Breezy Meadows seeking summary judgment under CPLR 3212(b). As alternative relief, defendants seek an order of indemnification against Budka and Tri-State. Plaintiffs have cross-moved for partial summary judgment.
As a threshold matter, plaintiffs concede to the dismissal of the Labor Law § 200 and common law negligence causes of action as against Breezy Meadows. There is no evidence in the record that Breezy Meadows in any way controlled or directed the work done by plaintiff, nor is there any evidence that Breezy Meadows breached any duty toward plaintiff. Accordingly, these causes of action are dismissed.
Turning to defendants' summary judgment motion as to the remaining causes of action, the appropriate starting point is the burden of proof. On any application such as this, it is the moving parties' obligation to demonstrate in the first instance an entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 552, 567 [1980]). Defendants contend that they are entitled to summary judgment because there is no material issue of fact regarding the applicability of the statutory exception to liability under Labor Law §§ 240(1) and 241(6) for single-family dwellings. A review of the record of this case discloses, however, that defendants' own proof contains questions of fact that preclude summary judgment on this basis. As a result, this matter cannot be determined by the Court and must await a jury's factual determination.
Labor Law § 240(1) renders the owners of land strictly liable for injuries sustained by workers who were not protected by "suitable devices" while engaged in work on a building or structure (see Lombardi v Stout, 80 NY2d 290, 295 [1992]). This same section, however, carves out an exclusion for "owners of one and two family dwellings who contract for but do not direct or control the work." Whether the exclusion is available in a particular case depends upon "the site and purpose of the work being performed which results in the injury" (Telfer v Gunnison Lakeshore Orchards, Inc., 245 AD2d 620, 621 [3d Dept 1997]). Where "the work was performed solely in connection with the property's residential usage, a homeowner is covered under the exemption" (Id. [emphasis added]). The record in this case raises material fact issues regarding the "residential usage" of the property in question and therefore defendants have failed to shoulder their burden on the present motion.
Defendants concede that Breezy Meadows held title to the property in question at the time the incident allegedly occurred. Their proof shows that Breezy Meadows is an entity whose primary purpose is the commercial boarding of horses. In December 2004 Breezy Meadows was conducting that business on an undivided large parcel of land that included the property upon which the house in question had just been erected. The record also shows that the entire property, including the house in question, was covered by the same commercial insurance policy that covered Breezy Meadows' business operations. [*3]While the Hauslers eventually did take title in 2008 to the 12 acre parcel upon which the house is located, the record developed at this point is devoid of any documentary evidence to suggest that the Hauslers had an ownership interest in the house or its land for their own "residential usage."
Indeed, there is evidence in the record to suggest that in December 2004 the Hauslers may have been involved in the development of the land in question as part of a commercial venture. Charles Hausler, himself an excavating contractor who had dug the foundation for the house, built the access road and done the landscaping, had recently constructed and sold another dwelling. Kristen Hausler was the de facto general contractor during the various stages of the construction of the house. Though plaintiffs had demanded in discovery documents relating to contracts with other vendors involved in the construction of the house, the Hauslers failed to produce a single relevant paper. Moreover, none of the moving defendants has produced for the record on this motion any documentation demonstrating the nature of the contractual relationship between Breezy Meadows and the Hauslers as it existed in December 2004. While defendants have established that Kristen Hausler is related by marriage to the principals of Breezy Meadows, this fact in itself is hardly dispositive of the open issues regarding the nature and use of the premises as of the date of the incident. On a motion for summary judgment the role of the Court is to identify, not to resolve, factual issues (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Here defendants have not adduced sufficient proof of the nature of their contractual relationship at the time of the incident to entitle them to judgment as a matter of law.
Similarly, defendants are not entitled to summary judgment on the Labor Law § 241(6) claim. While that statutory provision also creates an absolute liability on owners and contractors to provide reasonable and adequate protection and safety for workers, it is subject to a one- and two-family dwelling exemption identical to that applicable under §240(1). Accordingly, for the reasoning stated supra, the present application is denied as to this cause of action as well.
With regard to the Labor Law §200 and common law negligence causes of action, however, defendants have successfully shouldered their burden of proof on this motion. §200 is a codification of the common law duty for an employer to provide a safe workplace for employees (Brasch v Yonkers Construction Co., 306 AD2d 508, 510 [2d Dept 2003]). As such, a prima facie case under this provision (as well as under a common law negligence theory) requires a showing that the owner or contractor had control over the activity in question to the extent of being able to avoid or correct an unsafe condition (see id., citing Russin v Picciano & Son, 54 NY2d 311, 317 [1981] and Yong Ju Kim v Herbert Construction Co., 279 Ad2d 709, 712 [2d Dept 2000]). In the present case, defendants have shown that, apart from Kristen Hausler's having chosen the color of the gutters, they had no part in providing tools or equipment to plaintiff and Lewis; they did not direct or suggest the manner in which the two were to accomplish [*4]their work; and they played no role in directing or controlling any aspect of the job. Accordingly, defendants have shown by admissible proof that they are entitled to judgment as a matter of law on these two causes of action.
At this point, the burden of proof now shifts to plaintiffs to demonstrate, by competent evidence, the existence of a triable issue of material fact (see Zuckerman, supra, at 562). Plaintiffs have failed to do so here. The mere engagement of Tri-State in the work and the simple act of choosing the color of the gutters is insufficient to show the level of control needed to establish a duty on defendants' part (see e.g. Pesa v Ginsberg, 186 AD2d 521 [1st Dept 1992]; see also Sarvis v Maida, 173 AD2d 1019 [3d Dept 1991]). Accordingly, these causes of action must be dismissed.
As two of the causes of action pleaded in the complaint have withstood defendants' motion for summary judgment, the Court must consider the requested alternative relief of an order of indemnification against Tri-State and Budka. Indemnification is available to a property owner held strictly liable under Labor Law § 240(1) where the owner has merely contracted for the work and has not had control over the job site (Kingston v Hunter Highlands, 222 AD2d 952, 954 [3d Dept 1995]). Similarly, indemnification is available to the property owner held vicariously liable in an action based upon Labor Law § 241(6) over against the responsible party (Borowicz v International Paper Co., 245 AD2d 682, 684 [3d Dept 1997]). As noted here, defendants have shown that they did not control the manner in which the work was to be performed and exercised no direct supervisory authority over the job. Accordingly, should they be held liable to plaintiffs at trial, they would be entitled to indemnification from Tri-State and Budka. Inasmuch as this right of indemnification arises only upon a determination of ultimate liability, any order of indemnification issued by the Court at this time must be conditional only (see Kingston, supra; Borowicz, supra).
Finally, plaintiffs' cross-motion for partial summary judgment is predicated on the contention that the one- and two-family exemptions available under Labor Law §§ 240(1) and 241(6) are not applicable to defendants in the present case. As shown by the analysis of defendants' motion for summary judgment supra, however, it is clear that factual issues exist as to the nature and use of the premises in question at the time of the alleged incident. Inasmuch as these issues can only be determined at trial, the cross-motion must be denied.
Accordingly, it is
ORDERED that defendants' motion for summary judgment dismissing the causes of action arising under Labor Law §§ 240(1) and 241(6) is denied; and it is further
ORDERED that defendants' motion for summary judgment dismissing the causes of action arising under Labor Law § 200 and under common law negligence is granted; [*5]and it is further
ORDERED that defendants' application for an order of indemnification over against third-party defendants Norman Budka, Norman Budka d/b/a Tri-State Seamless Gutters and Tri-State Seamless Gutters is granted on the condition that there be an ultimate determination of liability against one or more of defendants Charles Hausler, Kristen Hausler and Breezy Meadows Farm, LLC after trial.
This constitutes the Decision and Order of the Court. All papers including this Decision and
Order are returned to the attorneys for the plaintiffs. The signing of this Decision and Order shall
not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable
provisions of this rule with regard to filing, entry and Notice of Entry.
Dated:January, 2009
Troy, New York
________________________________________
Henry F. Zwack
Acting Supreme Court Justice
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