Nin Kao v Alvarez

[*1] Nin Kao v Alvarez 2011 NY Slip Op 51349(U) Decided on July 6, 2011 Supreme Court, Queens County Taylor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2011
Supreme Court, Queens County

Michelle Nin Kao, AS ADMINISTRATRIX OF THE ESTATE OF XIHUI DING, DECEASED, Plaintiff(s),

against

Neil Alvarez, LEASE LINE, INC., UTS TRANSPORT SERVICES, LLC, FOURELS ASSOCIATES II, LLC, SKYLINE DEVELOPMENT GROUP, LLC, NEW YORK PREFERRED DEVELOPMENT GROUP, LLC, a/k/a NEW YORK PREFERRED CONSTRUCTION CORP. and MSS SIDEWALK BRIDGING & SCAFFOLDING CORP. a/k/a MSS CONSTRUCTION CORP., Defendant(s).



28960/08

Janice A. Taylor, J.

This is a wrongful death action to recover damages for the death of Xihui Ding (the decedent). Plaintiff Michelle Nin Kao, as administratrix of the estate of the decedent, has alleged that the decedent's death was due to violations of Labor Law §§ 200, 240 (1), 241 (6), and common-law negligence. The complaint has also alleged a claim for loss of consortium and society for the decedent's next of kin and heirs-at-law. On July 15, 2008, the decedent was an employee of Star Window & Design. Star Window & Design was hired to perform the installation of windows as part of an ongoing construction project at premises located at 32-56 Steinway Street, in the County of Queens (the subject premises). Fourels Associates II was the owner of the subject premises at the time of the incident and it allegedly hired NY Preferred, defendant Skyline Development Group, LLC, and defendant MSS Sidewalk Bridging & Scaffolding Corp., also known as, MSS Construction Corp., to perform work on the construction project.

Alvarez was employed by UTS Transport Services, which was the owner of a tractor trailer he operated at the time of the incident and Lease Line allegedly owned the trailer being pulled by Alvarez on the date of the incident. During the course of his employment, the decedent was operating a boom lift, also known as a cherry picker, that was placed in front of the subject premises. He was situated in the bucket or cage of the boom lift when the arm of the lift was allegedly retracted, causing it to extend into the public roadway in front of the premises. Alvarez operated the tractor trailer on the roadway in front of the subject premises at the time of the incident, and as he drove by the boom lift, the trailer portion of his vehicle came into contact with the arm of the lift, which shook the bucket and caused the decedent to fall to the ground.

Alvarez, Lease Line, and UTS Transport Services now cross-move for summary judgment and dismissal of plaintiff's complaint and all [*2]cross-claims and counterclaims against them. The cross-movants argue that Alvarez did not owe a duty to the decedent and that, if he is found to have owed the decedent duty, it was a merely the duty of ordinary care. A driver operating his or her vehicle upon a public roadway has a common-law duty to see what he or she should have seen through the proper use of his or her senses (see Domanova v State of New York, 41 AD3d 633, 634 [2007]). On their cross-motion, Alvarez Lease Line and UTS Transport Services have the prima facie burden of "tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]).

In support of this branch of their cross-motion, Alvarez, Lease Line and UTS Transport Services rely upon, inter alia, the deposition testimony of Alvarez and Vitale. However, the deposition testimony of these individuals failed to demonstrate how the accident occurred, including what the positions of the tractor trailer operated by Alvarez and the arm of the boom lift were, or how quickly the arm of the lift was moving at the time of the accident. Therefore, issues of fact exist as to how the accident occurred. Thus, Alvarez, Lease Line and UTS Transport Services have failed to demonstrate their prima facie entitlement to summary judgment on this branch of their cross-motion (Alvarez v Prospect Hosp., 68 NY2d at 324).

Lease Line also argues that it cannot be held vicariously liable for Alvarez's actions under 49 USC § 30106, commonly referred to as the Graves Amendment, because it was out-of-possession lessor of the trailer being pulled by Alvarez on the date of the incident. The Graves Amendment provides that the owner of a leased vehicle may not be held liable "for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if — (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner)" (49 USC § 30106[a]).

However, Lease Line has failed to submit the affidavit of a person with personal knowledge of its business practices in order to demonstrate that it was engaged in the trade or business of renting or leasing motor vehicles (see, generally, Burrell v [*3]Barreiro, 83 AD3d 984, 985 [2011]; see e.g. Graca v. Krasnik, 20 Misc 2d 1127[A][Supreme Court, Kings County, 2008]). Moreover, a copy of a lease agreement submitted by Lease Line provides that it was executed by nonparty United Transport Services. Lease Line has failed to explain the relationship between it and UTS. Additionally, the evidence submitted by Lease Line has failed to demonstrate that the subject accident occurred during the lease period for a trailer that it owned. Thus, Lease Line has failed to demonstrate that it is entitled to summary judgment as a matter of law on this branch of its cross-motion.

NY Preferred now moves for summary judgment and dismissal of dismissing the complaint and all cross-claims against it. The movant argues that it is not subject to liability under Labor Law §§ 240 (1) and 241 (6) because it was not an owner of the subject premises and was not a general contractor or agent of the owner or general contractor at the subject premises. NY Preferred further argues that it did not supervise or control the activity which led to the decedent's death. Labor Law §§ 240 (1) and 241 (6) applies to owners, general contractors, and their agents (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Sabato v New York Life Ins. Co., 259 AD2d 535, 536-537 [1999]). The scaffold law imposes absolute liability upon owners, contractors, and their agents for their failure to provide workers with safety devices that properly protect workers against elevation-related hazards (see Bin Gu v Palm Beach Tan, Inc., 81 AD3d 867, 868 [2011]). NY Preferred "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d at 324).

In support of this branch of its motion, NY Preferred relies on, inter alia, the deposition testimony of Steve Lagoudis ("Lagoudis"), a member of Fourels Associates II, and Anthony Vitale ("Vitale"), the President of NY Preferred. The testimony of these individuals has demonstrated that NY Preferred was not the owner of the subject premises on the date of the incident. However, Lagoudis testified that Fourels Associates II hired NY Preferred to be the general contractor for the work at the subject premises, while Vitale testified that Fourels Associates II acted as its own general contractor for the project. Based upon the conflicting evidence submitted by NY Preferred, an issue of fact exists, at least, as to whether NY Preferred was subject to liability under [*4]Labor Law §§ 240 (1) and 241 (6) as the general contractor at the time of the incident. Thus, NY Preferred has failed to satisfy its prima facie burden on this branch of its motion (see id.).

NY Preferred further contends that it did not have the authority to supervise or control the decedent's work. Labor Law § 200 "is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (Ortega v Puccia, 57 AD3d 54, 60 [2008]). Where a claim under section 200 arises out of the methods or materials of the work, an owner or general contractor may be liable if it is shown that he or she had the authority to supervise or control the work (see LaGiudice v Sleepy's Inc., 67 AD3d 969, 972 [2009]; Ortega v Puccia, 57 AD3d at 61-63).

In support of this branch of its motion, NY Preferred relies on the deposition testimony of Jing Luan ("Luan"), President of third-party defendant/second third-party defendant Star Window & Design, the decedent's employer. Luan testified that no individual from any other company instructed Star Window & Design or any of its employees on how to install windows, use equipment, or use safety equipment. Luan further testified that no one from any other company instructed the decedent as to what to place in vicinity of the boom lift, or as to how to operate the boom lift. Based upon this evidence, NY Preferred has demonstrated that it did not have the authority to supervise or control the decedent's work (see Pirog v 5433 Preston Ct., LLC, 78 AD3d 676, 677 [2010]; Capolino v Judlau Contr., Inc., 46 AD3d 733, 735 [2007]). Thus, although, NY Preferred has failed to demonstrate its entitlement to summary judgment dismissing the causes of action brought against it pursuant to Labor Law §§ 240 (1) and 241 (6), it has demonstrated its prima facie entitlement to summary judgment dismissing the causes of action brought against it under Labor Law § 200 and for common-law negligence.

NY Preferred also moves for conditional summary judgment on its cross claims for common-law indemnification against Star Window & Design, Alvarez, Lease Line, and UTS Transport Services. Fourels Associates II cross-moves for conditional summary judgment on its claims for common-law indemnification against Alvarez, Lease Line, and UTS Transport Services, and for common-law indemnification against Star Window & Design. A party whose liability is purely vicarious under the Labor Law may be entitled [*5]to common-law indemnification from the party actually responsible for the accident (see Cunha v City of New York, 12 NY3d 504, 508 [2009]; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 7 [1974]), "[s]ummary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to each party involved" (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2008]; Coque v Wildflower Estates Developers, Inc., 31 AD3d 484, 489 [2006]). Since issues of fact remain as to how the accident occurred and as to the relative liability of the parties in the instant case, a determination on the branch of NY Preferred's motion and of Fourels Associates II's cross-motion on their cross claims for common-law indemnification from Star Window & Design, Alvarez, Lease Line, and UTS Transport Services would be premature.

Accordingly, the branch of NY Preferred's motion for summary judgment and dismissal of the causes of action brought against it under Labor Law § 200 and for common-law negligence is granted. Those branches of NY Preferred's motion for summary judgment and dismissal of the causes of action brought against it under Labor Law §§ 240 (1) and 241 (6) and for conditional summary judgment on its cross-claims for common-law indemnification against Star Window & Design, Alvarez, Lease Line, UTS Transport Services are denied. The cross-motion by Fourels Associates II for summary judgment on its cross claims for common-law indemnification against Star Window & Design, Alvarez, Lease Line, and UTS Transport Services is also denied. Finally, the cross-motion by Alvarez, Lease Line and UTS Transport Services for summary judgment dismissing plaintiff's complaint and all cross-claims and counterclaims against them is denied.

Dated: July 6, 2011

 

JANICE A. TAYLOR, J.S.C.