Campoverde v Sound Hous. LLC

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Campoverde v Sound Hous. LLC 2012 NY Slip Op 30301(U) February 2, 2012 Supreme Court, Suffolk County Docket Number: 07-12150 Judge: Peter H. Mayer Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. SHORT FORll.-1OKOER 07-12 j 50 SUPREME COURT - STATE or NEW YORK IAS. PART 17 - SUFFOLK COUNTY PRESENT: Hon. PETER H. MA YER Justice of the Supreme Court MOTION DATE 3-18-11(#006) MOTION DATE 4-12-11 (#007) MOTION DATE 7-1-1 1(#009) AD1. DATE 8-16-11 Mot. Seq. # 006 - MG #007 - MD # 00'1- MG ---------------------------------------------------------------)( JUAN CAMPO VERDE, Plaintiff, BETH 1. SCHLOSSMAN, ESQ. Attorney for Plaintiff 26 Court Street Brooklyn, New York 11242 LITCHFIELD & CA VO Attorney for Defendant Island Wide 420 Lexington Avenue, Suite 2104 New York, New York 10170 - against - JOHN T. MCCARRON, P.c. Attorney for Defendant Sound Housing 445 Broad Hollow Road, Suite 124 Melville, New York 11747 SOUND HOUSING LLC and JOHN DOE(S), INC. and JOHN DOE(S), FOUR C MANAGEMENT CORP., ISLAND WIDE BUILDERS. LLC, and BAYVIEW BUILDING & FRAMING CORP., Defendants. ANDREW L. CRABTREE, ESQ. Attorney for Defendant Four C 225 Broad Hollow Road, Suite 303 Melville, ew York 11747 EISCHETTI & PESCE, LLP Attorney for Defendant Bayview 310 Old Country Road, Suite 201 Garden City, New York 11530 ---------------------------------------------------------------)( Upon [hc reoding and filing of the following papcrs in this matter: (1) Noticc of Motion/Order to Show Cause by lhe defendant Island Wide Builders, LI.C, dated, and supporting papers (including Memorandum of Law d"ICd __ ); (2) Notice of Motion/Order to Show Cause by thc defendant Bayview Building & Framing, Corp., dated March 27, 20 J I, supporting papers; (3) Notice of Motion larder to Show Cause by the plaintiff, dated June 7, 20] 1, supporting papers; (4)Affinnation in Opposition by the defendant Sound Housing, LLC, dated July I 1,201 I, and supporting papers; (5) Affinnation in Opposition by the defendant Island Wide Builders. LLC. dated June 7, 20 I I. and supporting papers; (6) Affinnation in Opposition by the defendant Bayview Huilding [* 2] Campo verde Ii Sound i lousll1g Index No. 07-12150 Page No 2 & Framing Corp .. dated June 7. ]011. and supponing papers; (7) Afflnnation in Opposition by the d<:tcndant Sound Housing U_c. dated .July 12, 20 11. and supporlingpapers, (8) Reply Affinnation by the defendant Island Wide BUilders, LLC, dated August9, 20 I I, and sUPPOIting papers; (9) Reply Affinnation by the dclcndant Island Wide Builders. LLC, dated August 9, 2911, and supporting papers: and now UPON DUE DELIBERATION AND CONSIDERATION the motion is decided as follows: it is BY THE COURT of the /()regoing papers, ORDERED that the motion by plaintilf Juan Campoverde and the motions by defendants Island Wide Builders, LLC and Bayvicw- Building & Framing Corp. are consolidated for thc purposes of this detell11ination; and it is ORDERED that the IT1otionby plaintiff Juan Campovcrde for partial summary judgment on the issue ofliability as against defendant Sound Housing, LLC on his claim under Labor Law 240 (1) is granted; and it is ORDERED that the motion by defendant Island Wide Builders, LLC for summary judgment dismissing plaintiffs complaint and all cross claims against it is granted; and it is ORDERED that the motion by defendant Bayview Building & Framing Corp. for summary judgment dismissing plaintiffs complaint and all cross claims against is denied. PlaintifLJuan Campo verde commenced this action to recover damages pursuant to Labor Law §§ 200,240 (1), and 241(6) for personal injuries he sustained on March 23, 2005 while working at the construction site of a new residential housing development known as the Willow Ponds on the Sound Condominiums. Plaintiff allegedly was injured when he slipped and fell from the apex of the roof of a building at the construction site. The construction site was owned by defendants Four C Management Corp. ("Four C") and Sound Housing LLC ("Sound Housing"). Defendant Island Wide Builders, LLC ("Island Wide") allegedly was hired by nonparty Atlas Site Development Co., a subsidiary of Sound Housing, to serve as the project's construction manager. Defendant Bayview Building & Framing Corp. ("Bayview") performed framing services at the construction site, while plamtiff's employer, Clean Cut Fascia ("CCF"), was responsible, for among other things, installing fascia boards on the wooden frames of the condominiums. CCF and Bayview allegedly shared a Stng1e principal and owner at the time of plaintiff's accident. Defendants Sound Housing and Four C joined issue on March 17, 2008, and Island Wide and Bayview Joined issue on March 7, 2008 and March 15, 2008 respectively. In their answer, Sound Housing and Four C deny plaintiff's c1allTIS assert a eross claim against Island Wide and Bayview for common and law indemnification. Island Wide and Bayview also deny plaintiffs claims, and Bayview asserts cross claims against its codefendants for contribution and conunon law indemnification. By order dated March 2],20] 1, this court granted a motion by four C for all order permitting plmntiffto vollll1tarily discontinue his action against it. Island Wide now moves for summary judgment dismissing plaintiff's complaint and all cross claims against tt, arguing it was neither a general contractor nor statutory agent, and that it did not control or supervise plainti ff or the means, methods, or safety procedures of his employer at the time of the accident. Bayview also moves for the summary judgment on similar grounds. Altemativcly, Bayview [* 3] Campo verde v Sound Hous1l1g Index No. 07-12]50 Page No.3 requests an order granting it leave to serve an amended anSV'ierthat includes a defense based on the Workers' Compensation La'"v,and summary judgment dismissing plaintllTs complaint based on such defense. Further, plaintiff moves for partial summary judgment on the issue of liability as against defendant Sound Housing on his claim under Labor Law 240 (l). Plamtiff asserts that Sound Housing's breach of its nondelegable duty, as ov-merof the construction site, to provide him with safety devices designed to prevent or break his fall was the proximate cause of his injuries. Plaintitf also opposes the motions by BaYVIewand Island Wide, arguing they failed to meet their pnma facie burden by eliminating triable issues from the case. In particular, plaintitlargues a triable issue exist as to whether Island Wide was Sound Housing's statutory agent for the project and, therefore, had the authority to supervise and control plaintiff's work at the time of the accident. Plaintiff concedes that no viable claim exist against Bayview under Labor Law §§240 (1) and 241(6). However, he avers that triable issues exist as to whether Bayview is liable under Labor Law §200 and the common law, since its principal admitted he possessed the authority to direct and control plaintiff's work at the time of the accident. Island Wide opposes Bayview's motion on a similar basis, and asserts that Bayview failed to include in its moving papers the affidavit of a person with personal kno", ¢.. ledgc oEthe facts o[the case. Island Wide fU11herargues that the portion of Bayvievv"s motion seeking to amend its answer to include a defense based upon the Workers' Compensation Law should be denied, as it is contradictory to its assertion that it had no control or authority over plaintiff s work. Sound Housing joins and adopts plaintiffs oppositions to the motions of both Island Wide and Bayview . .In addition, Sound Housing opposes plaintiffs motion on the grounds that it did not control or direct plaintiff's work, and that plaintiff's own acts or omissions \verc thc sale cause of the accident. During his examination before trial, plaintifftestitied that he slipped and fell to the ground \\!hile he was bending to pick up a piece of wood laying on the unfinished surface of the roof of the building. Plaintiff testified that he and a fellow employee were framing a chimney box prior to his accident, and that the roof consisted solely of plywood. He testified that while light snow had fallen, he did not recall any ice on the surface orthe roof at the time of his accident. Plaintiff further testified that Peter 13ukoVv'ski his was supervisor, and that he would visit the construction site approximately two times per week. He testified that Bukowski would show him what work had to be done, and \'\'ould inspect the work after it was completed. During his examinatloll before triaL Ron Johansen testified that hc \vas Island Wide's managing member, and that the nature of its business at the construction site involved the inspection and verification of work and the review of payment request invoices submitted by contractors. Johansen explained that he entered a verbal agreement with George He1111ein f Atlas Development Inc. to perform the construction o management services, and that thell- agreement did not require Island Wide to control or direct the work of subcontractors or their safety procedures. Johansen further testified that Island Wide was paid directly by Atlas Development Inc., and was not required to act as a general contractor for the proJect. During his examination befi:Jretrial, Peter Bukowski testiiled that he vvas the sole sllareholdcr and president of both Bayview and eel" at the time of plaintiff's accident. Bukowski testified that he learned of the project through an employee of Island Wide, Robert McAteer, and that both entities were selected to perform work at the construction slte after he submitted a bid to Sound I-lousing. Bukowski testified that while he coordinated with McAteer as to the schedule for the work, he was paid directly by Sound I-Iousmg [* 4] Campoverdc v Sound Housing Index No. 07-12150 Page NO.4 and followed their plans when determining what tasks he was required to perfoml. He testified that he visited the construction site two or three time per week to inspect the progress of the work performed by his employees. and lh~t he directed and controlled plaintiff's vlOrk. lIe further explained that \\ihile he occasionally held safety meetings with his employees, he did not provide or discuss the use of salcty devices, such as safety-belts, life-nets or harnesses with them. Bukowski testified that \vhile BayvIew was generally responsible for framing the buildings at the construction site, CCF's duties included. among other things, the framing of doors, windows, and chimney boxes such as the one plaintiff was installing prior to his accident. Bukowski also indicated that while Bayview and CCF shared no employees, he was the owner and president of both corporations, and that he submitted a single invoice under Bayview's name requesting payment for the work the two corporations allegedly performed at the construction site. During his exam mati on before trial, George Heinlein testified that he was one of several partners that owned Atlas and Sound Housing at the time of plaintiffs accident. Heinlein teslified that Island Wide had been hired as the construction manager for the project to perform general supervision of the construction site, including handling all "paper work" and approving billing inVOices submitted by the various contractors. He testified that fsland Wide was responsible for interviewing contractors before they submitted job proposal bids for selection by Sound I-lousing. He further testified that several employees 01" Island Wide, including Robert Johansen and Robert McAteer, were in charge of inspecting the work of contractors to detennine if they were complete and in accordance with the architectural plans before the invoices were approved for payment by Sound Housing. Heinlein testified that while Island Wide had no specific authority to control how the contractors performed their work, he generally expected that Island Wide, like any other contractor, had the authority to put an end to any unsafe practices it observed at the construction site. Heinlein also explained that he believed only Bayview had the specific authority to stop unsafe practices by its own employees. Initially, it is well settled that Labor Law § 240 (I) imposes absolute liability upon owners and contractors who fail to provide or ercct safcty devices necessary to give proper protection to workers cxposed to elevation-related hazards such as falling from a height (see Misseritti v Mark IV COllstr. Co., 86 NY2d 487,634 NYS2d 35 [1995-1;Rocovich v Consolidated Edi~'oll Co., 78 NY2d 509, 577 NYS2d 219 1"1991). Specifically, Labor Law § 240 (1) requires that safety devices, including scatIolds, hoists, stays, l ropes or ladders be so "constructed, placed and operated as to give proper protection to a worker" (Klein v City o/New York, 89 NY2d 833, 834, 652 NYS2d 723 [1996]). To prevail on a claim pursuant to I.abor Law § 240 (l), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries (see Bland v Manocheriall, 66 NY2d 452, 497 NYS2d 880 11985]; Sprague v Peckham Materials Corp., 240 I\D2d 392, 658 NYS2d 97 [2d Dept 1997']). The statute must be liberally construed to accomplish the purpose for which it was formed, that is " to protect workers by placing the ultimate responsibility for safety practices where sllch responsibility belongs, on the owner and general contractor or their agent instead of on workers, who are "scarcely in a position to protect themselves from accident" (Rocovich v COllsolidated Edisoll Co., supra at 513). Here, plaintiff established his prima facie entitlement to partial summary judgment on the issue or liability hy submitting evidencl: he was injured as a result of a gravity-related accident, and that Sound Housing's failure to provide him with any safety device to prevent or break his fall was the proximate cause of those injuries (see Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974, 768 NYS2d 727 [2003]; llellry v Elevellth Ave., L.P., 87 AD3d 523. 928 NYS2d 72 L2dDept 2011J; Taescllller v M&M Restoratiolls, [* 5] Campo verde v Sound HouslIlg Index No. 07-12150 Page NO.5 295 AD2d 598. 745 N YS2d 41 [2d Dept 2002])_ The burden. therefore. shi l-icdto Sound Housing to demonstrate the existence of triable issues as to whether there was a statutory violation. or as to whether plaintiff s own acts or omissions were the sale cause of the accident (see Blake v NeighborllOod How'. Servo of N. Y. City. I NY3d 280, 285-286. 771 NYS2d 484 [20031; Squires v Robert Marilli Bldn .. 293 AD2d 808. 809. 739 NYS2d 777, Iv denied 99 NY2d 502, 752 NYS2d 589[2002]). Sound Housing's opposition fails in this respect. Labor Law § 240 (I) holds owners and general contractors absolutely liable for any breach of the statute even if"the job was performed by an independent contractor over which they exercised no supervision or control"' (Rocovich v COllsolidated Edisoll Co., 78 NY2d 509, 515, 577 NYS2d 219 [1991]; see a/so Zimmer v Chemung County Performillg Arts, 65 NY2d 513. 518. 493 NYS2d 102 [1985]). Furthermore, where, as in this case, a contractor fails to provide adequate safety devices in violation of Labor Law §240 (1), and such failure is a proximate cause of the plaintiff's injuries, it is conceptually impossible at the same time for the plaintiffs conduct to be considered the sole proximate cause of the accident (see Blake v Neighborhood Hous. Servo of N. Y. City, supra at 290; Vaieusi'li v Greells lit HIIIf Hollow, LLe, 33 AD3d 693, 823 NYS2d 416 [2d Dep! 2006]; Bradl v Ram Bldrs., IIlC., 7 AD3d 655, 777 NYS2d 511 [2d Oep! 2004]). Accordingly, plaintiffs motion for partial summary judgment on the issue ofliability as against Sound I-lousing is granted. As for the motion by Island Wide seeking summary judgment dismissing plaintiffs complaint and all cross claims against it, Labor Law §§ 200, 240, and 241 applies to owners of construction sites, as well as their general contractors and "agents." A party is deemed to be an agent of an owner or general contractor under the Labor Law when the party has supervisory control and authority over the work being done and can avoid or correct the unsafe condition (Lillkowski v City of New York, 33 AD3d 971, 974~975, 824 NYS2d 109 [2d OCp!2006]; see Rodriguez vJMBArcilitectllre, LLe, 82 A03d 949, 951, 919 NYS2d 40 [2d Oept 201 I J). It is not the defendant's title that is determinative, but the degree of control or supervision it exercised (see Rodriguez v JMB Architecture, LLC, supra at 951; Linkowski v City of New York, supra at 975). J iere, Island Wide met its initial burden of establishll1g that it was not a general contractor or agent covered under the provisions of Labor Law §§ 200, 240 (I), or § 241(6) by submitting evidence that its role as construction manger was one of' general supervision, and that it exercised no authority or control over plaintiffs work or safety procedures at the time ol'the accident (see Rodriguez v JMB Architecture, LLC, .l"lIjJra~ Uzar v Louis P. Cimillelli COlls/r. Co. IIlC., 53 AD3d 1078,862 NYS2d 234 [4th Dept 20081; Lillkowski v City of New York, supra; Loiacono v Lehrer McGovern Bovis, 270 AD2d 464. 704 NYS2d 658 [2d Dept 2000]). Additionally, inasmuch as Island Wide was not actively at fault and played no role in causing or augmenting plaintiff's injuries, it is entitled to dismissal of the cross claims against it for contribution and common law indemnification (see McCarthy v Turner Constr., Inc .. 17 NY3d 369, 377-378, 929 NYS2d 556 [2011 J; Raqllet v Brallll, 90 NY2d 177,659 NYS2d 237 [1997]). Accordingly. the motion by Island Wide for sununary judgment dismissing plaintiff's complaint and all cross claims against it is granted. As to the branch of Bayview's motion seeking summary judgment dismissing plaintiff's complaint and all cross claims against. a prime contractor is liable as a statutory agent for the purposes of the Labor Law where it has been delegated the work in which the plaintiff was engaged at the time of the accident in such a manner that they stand in the shoes of the owner or general contractor with the authority to control or supervise the work (see lJojohn v Beltrone COJlstr. Co., 255 AD2d 658. 679 NYS2d 462 [3d Dept 1998J; Walsh v Sweet Assoc .. 172 AD2d 111, 577 NYS2d 324 [3d Dept 1991 D. A key criterion to this delegation [* 6] Campo verde v Sound I-lousing Index No. 07-12150 Page NO.6 is the authority to insist that proper safety procedures arc followed. and the right 10 control the work in light of such authority (see Walsh 11 Sweet Assoc., supra at 114; Nowak 11 Smith & Mahoney, 110 AD2d 288. 494 NYS2d 449 [3d Dcpt 19851). Here. Bayview failcd to establish its prima facie entitlcmcnt to summary judgment dismissing plaintiffs complaint (see A/varez \I Prospect Hosp_, 68 NY2d 320. 508 NYS2d 923 [1986]; Willegrat! \I New York Univ. Met!. Or., 64 NY2d 851, 487 NYS2d 316 [1985]). Significantly, testimony by Bayview's principal indicating that he had the authority 10 control plaintiffs work and safety procedures at the timc of the accident raises a triable issue a'i to whether Bayview had been delegated the ,"vorkin which plaintiff was engaged and. therefore, was standing in Sound Housing's shoes for the purpose of ensuring adcquate safety procedurcs were followed (see Nojo/Ill 11 Be/trone Constr. Co., supra; Outwater v Ballister, 253 AD2d 902,b678 NYS2d 396 [3d Dept 1998]; Kelly v Lemoyne College, 199 AD2d 942, 606 NYS2d 376 [3d Dept 1993]; cj. Walsh v Sweet Assoc., supra). Furthermore, the branch of Bayview's motion requesting leave to amend its answer to include a defense based upon the Workers' Compensation Law and ,upon such amendment, to grant it summary judgment dismissing plaintiffs' complaint is denied. Bayview failed, as it was required, to include a copy of the proposed amended pleading in its moving papers (see Loe/Iller v Simolls, 224 AD2d 591,639 NYS2d 700 [2d Dept 1996]; Goldner Trucking Cor. v Stoll Packing Corp., 12 AD2d 639, 208 NYS2d 1004 [2d Depl 1960]). Dated:

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