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
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
MOTION SEQ. NO.
The following papers, numbered 1 to
, were read on thb motlon tonor
Notlce of MotionlOrdor to Show Cauie - Affldavlta - Exhlbb
IN O W
Upon the fomgolng paperq, It I ordered that this motion is
COUNTY CLERK'S OFFICE
I CHECK ONE:
0 CASE DISPOSED
........................... MOTION IS: GRANTED
CHECK IF APPROPRIATE: ................................................
2. CHECK AS APPROPRIATE:
DO NOT POST
0GRANTED IN PART 0OTHER
SUPREME COURT OF THE STATE OF NEW Y O N
COUNTY OF NEW Y O N : CIVIL TERM: PART 19
JOSEPH J. POSA,
Index No.: 114560/08
Submission Date: 12/21/2011
DAVID ZWIRNER, INC., DAVID ZWIRNER,
BIG SHOT ELECTRIC COW., and
E. FITZGERALD ELECTRIC CO.,
co"Nm CLEW OFFICE
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
ApR 1 8
; 1' ,
I , ;;
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
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.
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
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
$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
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
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.
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
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
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,
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
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).
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
COUNTY CLERKS OFFICE '