Posa v David Zwirner, Inc.

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Posa v David Zwirner, Inc. 2012 NY Slip Op 31043(U) April 16, 2012 Sup Ct, NY County Docket Number: 114560/08 Judge: Saliann Scarpulla 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. UED ON411912012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY INDEX NO. II SL010 2 MOTION DATE MOTION SEQ. NO. The following papers, numbered 1 to , were read on thb motlon tonor Notlce of MotionlOrdor to Show Cauie - Affldavlta - Exhlbb Aniwerlng Amdavlb IN O W INo(*). INot*). - Exhlbltr Replylng AMdavlta Upon the fomgolng paperq, It I ordered that this motion is s NEW YORK COUNTY CLERK'S OFFICE .s.c. I CHECK ONE: . ..................................................................... 0 CASE DISPOSED ........................... MOTION IS: GRANTED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. DO NOT POST DENIED 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW Y O N COUNTY OF NEW Y O N : CIVIL TERM: PART 19 X l_____r________"______r______l____r_____----------~"~"~~-------~~"~_--- JOSEPH J. POSA, Plaintiff, Index No.: 114560/08 Submission Date: 12/21/2011 - against- DAVID ZWIRNER, INC., DAVID ZWIRNER, BIG SHOT ELECTRIC COW., and E. FITZGERALD ELECTRIC CO., Dcfendants. DAVID ZWIRNER, Third-party Plaintiff, - against- 19 2012 EUROSTRUCT, INC., NEW YORK co"Nm CLEW OFFICE Third-party Defendant. X ' ________l________rr________l______l_____----------------~"---"--------- \ For Plaintiff. The Law Ofice of Susan A. Scaria 50 Main Street, Suite 1000 White Plains, NY 10606 For DefendandThird Party Plaintiff David Zwirner: Hoey, King, Epstein, Prezioso & Marquez 55 Water Street, 29'hFloor New York, NY 1004 I For Defendant Big Shot Electric Corp.: O'Connor Redd LLP 200 Mamaroneck Ave. White Plains, NY 1060 1 Papers considered in review of this motion for summary judgment: Aff in Support. . . . . . . . . . . . . . . . 1 Aff in Opposition . . . . . . . . . . . . . 2 Notice of Cross-Motion . . . . . . . 3 Aff in Partial Opposition , , , . , . .4 Aff in Opposition to Cross-Motion . . . . . . . . . . . . . . . .5 v,-pEil&@J 2 . c ApR 1 8 Fi; >;' \LL ; 1' , 2 , !I. ., ! , 4 :, I , ;; , I , " m2 ,. c,y<; -!\I cq+,:~:~? - ,'A HON. SALIAIW SCARPULLA, J.: In this action to recover damages for personal injuries, defendant David Zwirner ("Zwirner") moves for summary judgment dismissing the complaint and cross claims 1 [* 3] against him, or, in the alternative, for summary judgment on his third-party claim for contractual indemnification asserted against third-party defendant Eurostruct, Inc. ( Eurostruct ). Defendant Big Shot Electric Corp. ( Big Shot ) crossmoves for summary judgment dismissing the complaint and cross-claims against it. This action arises from injuries plaintiff Joseph J. Posa ( Posa ) sustained on September 16, 2008. Posa alleges that he fell from a ladder while working on a construction project (the project ) at 232/234 East 13th Street in Manhattan (the premises ). Zwirner is the owner of the premises. At the time of the accident, Posa was employed with third-party defendant Eurostruct, Inc. ( Eurostruct ), the project s general contractor. Big Shot subcontracted with Eurostruct to perform electrical work on the project, including installing temporary lighting on each floor of the premises. At his deposition, Posa tesiified that the accident occurred while he was framing a fireplace on the third floor. Posa had been working on that floor and under similar lighting conditions for two days before the accident. According to Posa, he fell from the fifth rung of a ladder after shooting a nail from a powder actuated gun. As Posa was attempting to catch his balance, his right hand hit a piece of steel that was fastened to the wall. Posa testified that he knew he cut his hand on the steel because he later saw the piece of steel with his blood on it. 2 [* 4] Posa further testified that he had checked to make sure the ladder was stable, but because it was so dark in the room he was unable to see debris under the ladder. However, Posa was not certain whether he placed the ladder on the debris. According to Posa, the lack of lighting contributed to his accident because he could not see the piece of steel that cut his hand and because he was unable to ensure proper footing ofthe ladder. Noel Frett ( Frett ), Big Shot s General Foreman on the project, testified that he was not aware of any complaints about the third floor lighting conditions. Posa commenced this action in October 2008, pleading causes of action under Labor Law 55 240,241 and 200, and common law negligence. On September 17,2009, the Court dismissed the complaint as to DZI, Zwirner s art gallery, ruling that DZI had no connection to the project. Thereafter, Posa moved to renew opposition to the motion to dismiss, arguing that the deposition testimony of Melanie Adams, Zwirner s personal assistant, iAdicated that she acted on behalf of DZI at the work site. On March 3 1, 201 1, the Court denied Posa s motion to renew, ruling that Melanie Adams s testimony did not establish that she exercised sufficient supervision or control over the work site to impose Labor Law liability on DZI as an agent of David Zwirner. Zwirner now moves for summary judgment to dismiss the complaint and crossclaims against him, or, in the alternative, for summary judgment on his third-party claim for contractual indemnification asserted against Eurostruct. Zwirner argues that Posa s 3 [* 5] Labor Law $5 240 and 241 causes of action should be dismissed because Zwirner is exempt from liability as the owner of a one-family dwelling. Zwirner further maintains 8 200 and common law negligence claims against him should be that the Labor Law dismissed because there is no evidence that he controlled Posa s work site, or that he had notice of the alleged dangerous condition. In its cross-rnotion, Big Shot argues that it is neither an owner, contractor or agent within the meaning of the Labor Law, thus it may not be held liable under Labor Law $9 240 and 241(6). Big Shot argues that is not liable under Labor Law 5 200 or common law negligence because it neither controlled Posa s work site nor had notice of the alleged dangerous condition. Big Shot further contends that Posa s testimony indicates that there was adequate lighting at the premises despite his allegations to the contrary. \ In opposition to Zwirner s motion, Posa argues that there are issues of fact as to Zwirner s control over the work site because Posa testified that Zwirner s personal assistant was directing workers at the premises. In opposition to Big Shot s motion, Posa maintains that there are issues of fact as to whether Big Shot had notice of the alleged defect.2 Discqq$ion I Eurostruct opposes that portion of Zwirner s motion in which he seeks summary judgment on his claim for contractual indemnification asserted against Eurostruct. 2Posa does not address Big Shot s argument that it cannot be held liable under Labor Law $5 240 or 241(6) because it was not the project s owner, contractor or agent. 4 [* 6] A movant seeking summary judgment must make aprima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 85 1, 853 (1 985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. City of New York,49 N.Y.2d 557 (1980). Here, there are triable issues of fact precluding summary judgment for Zwirner on the Labor Law 9 5 240 and 24 1 causes of action. Under Labor Law $5 240 and 24 1, owners of one or two-family dwellings are liable only if they directed or controlled the project s work. A f r i v. Basch, 13 N.Y.3d 592, 595 (2009). The parties do not dispute that the premises was a single-family dwelling. Further, Zwirner affirms that he had no contact with Posa during the project or controlled Posa s work site. However, Posa testified that Melanie Adams, Zwimer s personal assistant, direLted workers in the removal of debris and location of lighting at the premises, and that he fell because of debris around his ladder and inadequate lighting at the premises. Though this Court previously ruled that Melanie Adams provided no testimony indicating that she had the authority to direct, supervise, or control the construction work at the subject premises, Posa7stestimony creates a triable issue of fact precluding summary judgment. Moreover, Zwirner has failed to make aprimafacie showing of entitlement to summary judgment on the Labor Law 9 200 and common law negligence causes of 5 [* 7] action. As this injury arose out of an alleged dangerous condition of the premises, Zwirner is liable under 5 200 if he created or had notice of the condition. See Slikas v Cyclone Realty, LLC, 78 A.D.3d 144, 147 (2d Dept. 2010). Because Zwirner has failed to present any evidence outside of his attorney s affirmation that he did not have notice of the alleged dangerous condition, his motion to dismiss the 6 200 and common law negligence causes of action is also denied. See Stainless, Inc. v. Employers Fire Ins. Con, 69 A.D.2d 27, 3 1 (1 Dept. 1979). Further, Zwirner submits no evidence in support of the branch of his motion seeking summary judgment on his third-party claim for contractual indemnification asserted against Eurostruct. He fails to submit the third-party pleadings or the contract upon which the claim for contractual indemnification is based. As such, that branch of his motion is denied. \ On its cross-motion, Big Shot is entitled to summary judgment dismissing the Labor Law 5 240, 241 and 200 causes of action asserted against it. The Labor Law applies only to owners, contractors or agents. See Rodriguez v. New York City Hous. Auth., 194 A.D.2d 460, 46 1 (1 st Dept. 1993). The parties do not dispute that Zwirner, not Big Shot, was the owner of the premises. Big Shot was a subcontractor on the project, thus was not a contractor under the Labor Law. See Nowak v. Smith & Mahoney, P. C., I10 A.D.2d 288,289-90 (3d Dept. 1985) (To be liable under the Labor Law as a contractor, an entity must have the duty and power to choose subcontractors and 6 [* 8] enforce a project s safety standards.). Further, because Posa testified that no electrician directed his work, Big Shot was not an agent under the Labor Law. See Russin v. Louis N.Picciano & Son, 54 N.Y.2d 3 11, 3 18 (1981) ( When the work giving rise to these duties has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent of the Owner or general contractor. ). However, issues of fact remain as to Big Shot s common law negligence liability. Big Shot was responsible for providing lighting for the project, and Posa testified that inadequate lighting partially caused his fall. In response, Big Shot has not presented any evidence to establish that it was free from negligence. See Urban v. No. 5 Times Sq. Dev., LLC, 62 A.D.3d 5 5 3 , 554 ( lstDept. 2009).3 Accordingly, Big Shot s motion is denied as to the common law negligence cause of action. In accordance with the foregoing, it is hereby ORDERED that defendant David Zwimer s motion for summary judgment, OF, in the alternative, for summary judgment on his third-party claim for contractual indemnification asserted against third-party defendant Eurostruct, Inc. is denied; and it is further ORDERED that defendant Big Shot Electric Corp. s motion for summary . ~ 3Big Shot argues that Posa s claims are illusory because he previously worked under the same lighting conditions, could see the debris under the ladder when he fell, and could read his plans. This argument, however, goes to credibility and is an issue for a jury to decide at trial. See Barber v. Roger P. Kennedy Gen. Contrs., h c . , 302 A.D.2d 718, 719-20 (3d Dept. 2003). 7 [* 9] judgment is granted insofar as the Labor Law $5 240,241 and 200 causes of action against it are dismissed, and is otherwise denied. This constitutes the decision and order of the Court. Dated: New York, New York April1b, 20 12 ENTER: NEW YORK COUNTY CLERKS OFFICE ' 8

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