Galinat v Smith
Annotate this CaseDecided on October 24, 2011
Supreme Court, New York County
Danuta Galinat, Plaintiff ,
against
Melody Smith d/b/a Excellent Organizing and Design, Mark W. Green, Kristen E. Poppele, Carmen Hines and Sam Hines, Defendants.
105467/2008
Attorney for Plaintiff:
RUTA SOULIOS & STRATIS LLP
1500 BROADWAY, 21 FLR
NEW YORK, NY 10036
212-997-4500
Attorneys for Defendant:
IRWEN C. ABRAMS
26 COURT STREET, STE 1202
BROOKLYN , NY 11242
718-624-0154
MELODY SMITH - Prose
LAW OFFICE OF ROBERT P. TUSA, ESQ.
1 METROTECH CENTER - 19TH FLR.
BROOKLYN, NEW YORK 11201
718 250-0400
KATZ & ASSOCIATES
335 ADAMS STREET SUITE 2710
BROOKLYN, NY 11201
(800)232-2173
LONGO & D'APICE, ESQS.
26 COURT STREET, SUITE 1700
BROOKLYN, NY 11242
718-855-5684
Judith J. Gische, J.
Defendants Carmen Hines and Sam Hines (collectively "Hineses") move for summary judgment, dismissing the complaint and any and all cross-claims asserted against them in this action. Defendants Mark W. Green ("Green") and Kristen E. Poppele ("Poppele") have cross-moved for summary judgment dismissing the complaint and any and all cross-claim asserted against them. The plaintiff has also cross-moved for summary judgment.
Plaintiff's cross-motion is untimely and no showing of good cause was made. The court accepted the papers as opposition to the motion and cross-motion by defendants. Subsequent to Green and Poppele making their cross-motion, plaintiff withdrew her complaint against them. In addition, the Hineses offered no substantive opposition to Green and Poppele's cross-motion to dismiss the cross-claims. Consequently, Green and Poppele's motion for summary judgment dismissing the complaint and any and all cross-claims asserted against them is granted.
Thus, the only motion currently before the court for consideration is the Hineses' motion for summary judgment. Issue has been joined and the motion was timely brought. The motion will be considered on its merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004).
In her Amended Verified Complaint, Plaintiff asserts three causes of action, for negligence and/or statutory liability. Plaintiff claims that she sustained personal injuries, on June 1, 2007, when she fell from a ladder while performing painting work in apartment 5, located at 424 Broom Street in Manhattan ("apartment"). The Hineses were the residential tenants of the apartment and the apartment was owned by Green and Poppele, who were living in Japan at the time of the alleged accident. It is undisputed that the ladder belonged to Green, who had left it in the apartment when he and Poppele moved to Japan. Sam Hines hired co-defendant Smith to perform decorating and painting work at the apartment, before his wife was scheduled to move in. Plaintiff was hired to assist Smith in painting the apartment, after Sam Hines complained that the work was proceeding too slowly.
Plaintiff's claims are somewhat confusing. In her complaint she alleges negligence (first and second causes of action) and violation of certain provisions of the industrial code (third cause of action). In her Verified bill of particulars, she claims violations of New York State Labor Laws §§ 240 and 316. In this motion, she makes claims under Labor Law §§ 200, 240 and 241 [6].
A movant seeking summary judgment in its favor must make a prima facie [*2]showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party, who must then demonstrate the existence of a triable issue of fact, also through admissible evidence Alvarez v. Prospect Hosp., 68 NY2d 320, 324 91986); Zuckerman v. City of New York, 49 NY2d 557 (1980); Forrest v. Jewish Guild for the Blind, 309 AD2d 546 (1st Dept 2003). On a motion for summary judgment, it is for the court to decide any issues of law that are raised. Hindes v. Weisz, 303 AD2d 459 (2nd Dept 2003).
Preliminarily, Labor Law §316, which applies to factories, has no application to the facts presented. To the extent plaintiff claims the Hineses' liability is predicated on such statute it is rejected as a matter of law.
The Hineses argue that there is no liability against them under either Labor Law §240 or 241, because both statutes contain an exception for owners of one and two family dwellings, who contract for, but do not direct or control, the work. Likewise, they argue that the lack of control and/or supervision precludes recovery under Labor Law §200 or common law negligence. Plaintiff claims that the exception does not apply because there is at least a question of fact regarding whether the Hineses directed or controlled the work.
In making their factual arguments the parties rely primarily on the deposition testimony of Sam Hines. There is no deposition testimony or affidavit offered from plaintiff. The only sworn statement from plaintiff is her October 30, 2008 verified bill of particulars, but it is completely devoid of any factual information regarding Sam Hines' role in directing her work.
Mr. Hines testified that the ladder was in a utility closet in the apartment when he first moved in, but that he had never used it himself at any time before the accident.He hired co-defendant Smith to help him decorate the apartment, which he understood as choosing furniture, painting and making the place look nice. He furnished Smith with materials to paint, including paint and brushes "in a couple of instances." There were also instances Smith furnished the paint herself. (S Hines EBT pp. 28, 32). Smith, for the most part, provided her own supplies, while Sam Hines provided the most of the paint. Smith provided two painters, including plaintiff. After Sam Hines complained to Smith that the work was proceeding too slowly, plaintiff was hired to help out.
Sam Hines met plaintiff only once, on the day of her accident (S. Hines EBT p. 31), at 8:00 a.m., while on his way to work. He gave plaintiff a tour of the apartment and she told him how beautiful the existing paint work was. He went to the utility closet and told plaintiff she was welcome to use the ladder and handed it to her. Nothing else was discussed with plaintiff (S. Hines EBT pp 37-38). Sam Hines went to work and only learned about the accident after receiving a phone call, at about 7:00 p.m., while he was still at work. Smith continued working at the apartment for another week, after which Sam Hines terminated her services, because he thought the work was taking too long to complete.
Labor Law §§240 or 241, which impose statutory liability for construction related [*3]accidents, each contain an exception for owners of one and two family dwellings who contract for, but do not direct or control the work. The purpose of these statutory exceptions is to remove "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. Shanzer, 147 AD2d 541 (2nd dept. 1989). Doubts concerning the applicability of the exception for one- and two-family homeowners should be resolved in favor of the general provision rather than the exception. Garcia v. Martin, 285 AD2d 391 (1st dept. 2001). The relevant inquiry into the exception for one and two-family homeowners under the Labor Law, is, however, "the degree to which the owner supervised the method and manner of the work." Lane v. Karian, 210 AD2d 549 (3rd dept. 1994). Purchasing materials and expressing dissatisfaction with the speed of the work is not enough to vitiate the application of the exception. Lane v. Karian, supra.
At bar, the Hineses have shown that they neither controlled the method nor manner of work. Carmen Hines was not present in the apartment until after the day of the accident. Sam Hines, at most, hired Smith, bought most of the paint and some of the brushes and complained that the project was taking too long. Although he offered plaintiff the ladder, he did not insist that she use it, nor did he give plaintiff or Smith any instruction about how to paint the apartment. It appears that he was not even physically present while most of the work occurred.
Plaintiff has not come up with any admissible evidence that would suggest that either of the Hineses were directing how she, or Smith, or the other painter were to do their work. The Hineses are therefore entitled to summary judgment dismissing the Labor Law claims asserted under §§240 and 241.
Labor Law § 200 is merely a codification of the common law duty of owners and contractors to furnish a safe place to work. Allen v. Cloutier Construction Corp., 44 NY2d 290 (1978); Reyes v. Silfes, 168 AD2d 979 (4th dept. 1990). For an owner to be held liable under this section, a plaintiff must show that the owner supervised or controlled to work or that he owner had actual or constructive notice of the unsafe conditions that caused the accident. Decavallas v. Pappantoniou, 300 AD2d 617 (2nd dept. 2002). Reyes v. Silfes, supra.
The court has already held that the Hineses did not supervise or control the work, thus there is no liability on such basis under Labor Law §200. There is evidence that either of the Hineses had actual or constructive notice that the ladder involved in the accident was defective or that it was being improperly used. The ladder did not belong the Hineses and the only evidence in the record is that Sam Hines had not used it at any time before he offered to plaintiff to use. He was not in the apartment when the ladder was actually in use. It is also unclear in what way the ladder failed to operate. There is less evidence that Carmen Hines knew anything about the ladder before the accident. Plaintiff has not come forward with any evidence th the contrary. Thus, plaintiffs claims for common law and/or Labor Law §200 negligence also fail.
Finally, there being no substantive opposition to the cross-motion to dismiss the [*4]cross claims against the Hineses, it is granted.
Conclusion
In accordance herewith, it is hereby:
ORDERED that Carmen Hines and Sam Hines' motion for summary judgment dismissing the complaint against them is granted, and it is further
ORDERED that Carmen Hines and Sam Hines' motion to dismiss the cross-claims against them is granted, and it is further
ORDERED that Mark W. Green and Kristen E. Poppele's cross-motion for summary judgment is granted , and it is further
ORDERED that Mark W. Green and Kristen E. Poppele's cross-motion to dismiss the cross-claims asserted against it is granted, and it is further
ORDERED that plaintiff's cross-motion for summary judgment is denied as untimely, and it is further
ORDERED that the matter is remitted to the trial assignment Part 40 and that plaintiff is directed to file a copy of this decision with the clerk of the part so that this matter may be calendared for trial against the remaining defendant, and it is further
ORDERED that any requested relief not otherwise granted herein is denied and that this constitutes the decision and order of the court.
Dated:New York, NY
October 24, 2011
SO ORDERED:
_________________
J.G. J.S.C
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