Benitez-Eduardo v Mentor Dev. Corp.

[*1] Benitez-Eduardo v Mentor Dev. Corp. 2009 NY Slip Op 51329(U) [24 Misc 3d 1209(A)] Decided on June 17, 2009 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2009
Supreme Court, Richmond County

Emmanuel Benitez-Eduardo, Plaintiff,

against

Mentor Development Corp., Banrell Realty Corp., Victoria Building Corp., Guido Passarelli d/b/a Guido Passarelli & Son, Inc., Guido Passarelli, Defendant(s).



Mentor Development Corp., Banrell Realty Corp., Victoria Building Corp., Guido Passarelli d/b/a Guido Passarelli & Son, Inc., Guido Passarelli, Third-Party Plaintiffs,

against

Henry Bielecki d/b/a Henry & Sons and Henry BieleckI, Individually, Third-Party Defendants.



102021/2006

Judith N. McMahon, J.

On February 20, 2008, the plaintiff allegedly sustained injuries when he fell from an elevated makeshift scaffold while he was installing siding at the premises located at 497 Willowbrook Road, Staten Island, New York. The plaintiff was employed at the time of the accident by the third party defendant, Henry Bielecki. Initially, the court notes that the plaintiff has discontinued the action, with prejudice, against defendants Mentor Development Corp., Victoria Building Corp., and Guido Passarelli d/b/a Guido Passarelli & Son, Inc., Guido Passarelli, leaving only Banrell Realty Corp. as the named defendant. Banrell Realty Corp., was the owner of the property where the work was being performed.

The plaintiff commenced this action on or about June 30, 2006. Issue has been joined and discovery is now complete. Presently, the plaintiff is moving for summary judgment on his cause of action under New York State Labor Law § 240(1). Defendant Banrell Realty is also moving for summary judgment on all of plaintiff's causes of action. Third-party defendant Henry Bielecki is moving for summary judgment against the third-party plaintiffs based upon, inter alia, New York State Workers Compensation Law § 11. Lastly, third-party plaintiffs are moving to amend the third party summons and complaint to join Henry & Sons, LLC, Henry [*2]Bielecki d/b/a Henry & Sons Roofing & Siding, and Henry & Sons General Contracting LLC.

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

I.Plaintiff's summary judgment motion on New York Labor Law § 240(1)"To recover under Labor Law § 240 (1), a plaintiff must demonstrate that there was a violation of the statute and that the violation was a proximate cause of the accident" (Chang v. Homewell Owner's Corp., 38 AD3d 625, 626 [2d Dept., 2007]). Further, a nondelegable duty is imposed upon "owners and contractors to provide or cause to be furnished certain safety devices for workers at an elevated work site, and the absence of appropriate safety devices constitutes a violation of the statute as a matter of law" (Riccio v. NHT Owners, LLC, 51 AD3d 897, 898-899 [2d Dept. 2008]).

New York Labor Law § 240(1)[FN1] imposes liability upon owners and contractors who fail, in accordance with the statute, to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards (Bonilla v State of New York, 40 AD3d 673 [2d Dept., 2007]). "In the scaffold situation, if a worker had no protective devices, such as a harness or a guardrail, and suffered injuries in a fall from a shifting scaffold, Labor Law § 240(1) clearly would offer the worker its protection" (Dooley v. Peerless Importers, Inc., 42 AD3d 199, 204 [2d Dept., 2007]).

Here, plaintiff has established his prima facie entitlement to summary judgment by adducing evidence that he fell off a makeshift scaffold and was not wearing any safety equipment at the time (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). This case clearly falls under the purview of New York Labor Law § 240(1). In opposition to the plaintiff's prima facie showing, the defendant has failed to raise any triable issues of fact. Defendant's contentions regarding sole proximate cause and that plaintiff was a recalcitrant worker are unsupported by evidence and as a result, the strict liability of Labor Law § 240(1) applies. As such, summary judgment is [*3]granted in favor of the plaintiff on the cause of action related to New York Labor Law § 240(1).

II.Defendant Banrell Realty's summary judgment motion

With respect to defendant Banrell Realty's motion regarding New York Labor Law § 240(1), the court has addressed this above, namely, granting summary judgment to plaintiff on that cause of action alone. As such, the defendant's motion for summary judgment based upon Labor Law § 240(1) is denied.

Addressing defendant's summary judgment motion against the plaintiff based upon Labor Law § 200; it is well settled that New York Labor Law § 200 "is but a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work" (Hunter v. R.J.L. Dev., LLC, 44 AD3d 822 [2d Dept., 2007]; Haider v. Davis, 35 AD3d 363 [2d Dept., 2006]; Basso v Miller, 40 NY2d 233, 241 [1976][finding "an owner of real property has a duty to maintain the property in a reasonably safe condition"]). As a result, when an injury occurs "[i]f the allegedly dangerous condition arises from the contractor's methods and the owner or general contractor exercises no supervisory control over the operation, liability does not attach under the common law or under Labor Law § 200" (Ferrero v. Best Modular Homes Inc., 33 AD3d 847, 849-850 [2d Dept., 2006]).

Here, defendant Banrell Realty has established its right to summary judgment as a matter of law based upon the evidence that, as owners, they did not exercise any supervisory control over the worksite (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]; Ferrero v. Best Modular Homes Inc., 33 AD3d 847, 849-850 [2d Dept., 2006]). In opposition, the plaintiff has successfully raised triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The plaintiff has established that Guido Passarelli and Donald Banks, as partners of defendant Banrell Realty Corp., owned the property where the accident occurred and were present overseeing the job on a weekly basis. Further, the plaintiff established that Banrell Realty Corp., may have acted as the general contractor, as it hired/fired and supervised the subcontractors hired to perform the work on the premises. As a result, summary judgment is inappropriate here where there are numerous questions of fact regarding the supervisory capacity of the defendants.

Lastly, with respect to defendant's motion on plaintiff's cause of action based upon New York Labor Law § 241(6), "[a] contractor may be liable to an injured worker under Labor Law § 241 (6) even absent evidence of control or supervision of the injury-producing event, where a failure to comply with specific safety rules and regulations set forth in the Industrial Code of the State of New York was a substantial factor in bringing about the injury-causing event" (Locicero v. Princeton Restoration, Inc., 25 AD3d 664, 666 [2d Dept., 2006]). Further, "[t]o support a cause of action pursuant to Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision which sets forth specific safety standards" and additionally, "the provision must be applicable to the facts of the case" (Ferrero v. Best Modular Homes. Inc., 33 AD3d 847, 849-850 [2d Dept., 2006]). Here, the plaintiff alleges violations of Industrial Code § 23-1.21 [FN2] which provides the general safety [*4]requirements for ladders. Plaintiff's allege the defendant violated Industrial Code § 23-1.21 by establishing questions of fact regarding whether the footing of the ladder was a cause of the plaintiff's fall and subsequent injuries (id.). As such, summary judgment is inappropriate.

With respect to defendant's motion requesting summary judgment against third party defendants Henry Bielecki, it is well settled that in order for a party to establish contractual indemnification rights, it must prove that it was free from any negligence (Cava Constr. Co. Inc. v. Gealtec Remodeling Corp., 58 AD3d 660, 661-662 [2d Dept., 2009]; Coque v. Wildflower Estates Development, 31 AD3d 484, 489-490 [2d Dept., 2006]; Lesisz v. Salvation Army, 40 AD3d 1050, 1051 [2d Dept., 2007]). Here, questions of fact clearly exist regarding whether the defendant/third-party plaintiff contributed to the accident and as such summary judgment on the contractual indemnification claims is inappropriate (id.).

III.Third-Party Defendant's motion for summary judgment

Third-party defendant Henry Bielecki's motion seeks summary judgment against the third-party plaintiffs on the ground that as plaintiff's employer a lawsuit is barred based upon Workers' Compensation Law § 11. New York State Workers' Compensation Law § 11 provides that workers compensation benefits are the exclusive remedy against them where the employer provides workers compensation coverage. However, where an employer expressly agrees to indemnification or where the employee sustains a grave injury' the employer may still be held liable (NY Workers' Compensation Law § 11).

Here, the third-party defendants have established a prima facie entitlement to summary judgment by establishing that party indicated in this action is not the party that signed the agreement with the contractual indemnification clause (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the third-party plaintiff successfully established questions of fact, namely, that questions exist regarding exactly which parties entered into the contractual agreement. More specifically, the contractual agreement names the owner/contractor as "Banrell Realty Corp." and the subcontractor as "Henry & Sons Roofing & Siding". However, the agreement is signed by Henry & Sons General Contracting LLC, by Henry Bielecki. Obviously, it is clear that questions of fact exists regarding the exact name of the party who entered into the contractual indemnification agreement, as such summary judgment is inappropriate.

IV.Third-Party Plaintiff's motion to amend

While generally leave to amend a complaint is freely granted (CPLR § 3025[b]) "the decision as to whether to grant such leave is generally left to the sound discretion of the trial court . . . [i]n exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom" (Haller v. Lopane, 305 AD2d 370, 371 [2d Dept., 2003]).

Here, the third party plaintiffs seek to amend the summons and complaint to include Henry & Sons, LLC, Henry Bielecki d/b/a Henry & Sons Roofing & Siding, and Henry & Sons General Contracting LLC. These parties were clearly named in the contractual indemnification agreement and are owned/operated by the third-party defendant Henry Bielecki. [*5]As such, sufficient notice has been provided to these parties and minimal prejudice would result from permitting amending the summons and complaint.

Accordingly, it is

ORDERED that the plaintiff's motion (004) for summary judgment on the New York Labor Law § 240(1) is hereby granted, and it is further

ORDERED the defendant's motion (005) for summary judgment is hereby denied in its entirety, and it is further

ORDERED that third party defendant's motion for summary judgment is hereby denied, and it is further

ORDERED that third party plaintiff's motion to amend the summons and complaint is hereby granted, and it is further

ORDERED that any and all additional requests for relief are found to be completely without merit, and it is further

ORDERED that the third-party plaintiffs are to serve the amended third party summons and complaint within 10 days of this Decision and Order, and it is further

ORDERED that the third-party plaintiffs are NOT to permit any extensions of time to answer the amended third party summons and complaint, and it is further

ORDERED that the Clerk enter judgment accordingly.

Dated: June 17, 2009ENTER:

____________________________________

Hon. Judith N. McMahon

Justice of the Supreme Court

Footnotes

Footnote 1:"1. 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." New York Labor Law § 240 (1).

Footnote 2:"Installation and use . . . (ii) All ladder footings shall be firm. Slippery surfaces and insecure objects such as bricks and boxes shall not be used as ladder footings . . . (3) Stepladder footing. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means." 12 NYCRR § 23-1.21