Barros v Hirsch Co., LLC
2012 NY Slip Op 31066(U)
April 12, 2012
Supreme Court, Suffolk County
Docket Number: 11-24387
Judge: John J.J. Jones Jr
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SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
IAS. PART 10 - SUFFOLK COUNTY
JOHN J.J. JONES. JR.
Justice of the Supreme Court
# 00 I - MG; CASEDISP
# 002 - XMD
GORAYEB & ASSOCIATES, P.c.
Attorney for Plaintiff
100 William Street
New York, New York 10038
- against -
BORCHERT, GENOVESI, LASPINA &
Attorney for Defendant
19-02 Whitestone Expressway, Suite 302
Whitestone, New York 11357
HIRSCH COMPANY, LLC.,
Upon the following papers numbered I to.-..:!L read on this motion and cross-motion for summary judgment; Notice
of Motion! Order to Show Cause and supporting papers I - 23 ; Notice of Cross Motion and supporting papers 24 - 44 ,
AnsweringAffidavits and supporting papers __
; Replying Affidavits and supporting papers 45 - 46 ; Other _;
heal illg eotlll.~eI ill StlppOl"t tliid oPP('Jsed to tire iliotion)
ORDERED that the motion by defendant for an order pursuant to CPLR 3212 granting swnmaI)'
judgment in its favor dismissing the complaint is granted; and it is further
ORDERED that the cross motion by plaintiff for an order pursuant to CPLR 3212 (c) granting
partial summary judgment in his favor on his Labor Law §§ 240 (l) and 241 (6) causes of action is denied.
This is an action to recover damages for injuries allegedly sustained by plaintiff on October 16,
2008 at approximately 1 p.m. during the course of his employment as a cm-penter/laborer for non-party
Perella Building Corp. when he fell from an extension ladder that slid sideways along the facade ofa
home under construction at 40 Mashomuck Drive, Sag Harbor, Suffolk County, New York. I The property
is owned by defendant, Hirsch Company, LLC. Vincent Seddio (Mr. Seddio) and his wife are the sole and
exclusive owners of defendant. By his amended complaint, plaintiff alleges a first cause of action based
IBy order dated June 7, 2011 (Weiss,.I.), the Supreme COUJi,Queens County, granted defendant's motion
to change the venue of this action from Queens County, were it was improperly commenced, to Suffolk County. The
order also denied witll leave to renew in Suffolk County the parties' respective motions for summary judgment.
on common-law negligence and a second cause of action based on violations of Labor Law ~§
(1) and 241 (6). Among the allim1ative defenses raised in the amended answer is a tenth affirmative
defense that plaintiff was the sole proximate cause of his accident by failing to use available equipment,
specifically, the mechanical means of securing the top portion of the extension ladder by the use of rope
and/or nails to prevent lateral motion_
Defendant now moves for summary judgment dismissing the complaint on the grounds that the
homeo\-vner's exemption applies with respect to plaintiffs Labor Law §§ 240 (]) and 241 (6) claims, and
that defendant did not supervise or control the method and manner ofplaintiiT's work and plaintitfwas the
sole proximate cause ofhi5 own accident such that plaintiffs Labor Law § 200 and common-Imv
negligence claim must be dismissed. Defendant's submissions in support of the motion include the
pleadings, plaintiff s bill of particulars, the affidavit of Mr. Seddio dated December 9, 2010, and the
certified deposition transcripts of plaintiff from June 10, 2010 and August 2, 20 I0, and the unsigned and
uncertified deposition transcripts of plaintiff from November 22, 20] 0, of Mr. Seddio on behalf of
defendant, and of non-party witness Richard Perillo.
Plaintitf cross-moves for partial summary judgment in his favor on his Labor Law §§ 240 (1) and
241 (6) causes of action on the grounds that defendant is the owner o[the subject property, is a plumbing
contractor, and is the general contractor that supervised, directed and controlled the work at the subject
construction project where plaintiffs gravity~related accident occurred. Plaintiff asserts that Mr. Seddio, a
principal of defendant, is a sophisticated businessman in constmction and real estate matters, regularly
buys and sells real estate for commercial gain, owns two homes on Shelter Island, and listed defendant as
the contractor on building permit applications dated January 31, 2008 and November 13, 2008. Plaintiff
questions whether the Seddios actually intended to reside at the subject property. In support o[thc cross
motion, plaintiff submits, among other things, the amended complaint and answer to amended complaint,
his affidavit dated February 1, 2011 with attached affidavit of Spanish interpreter/translator and color
photographs of the building under construction that were marked as exhibits during his deposition on
August 2,2010; the affidavit dated May 3, 201] o1'a licensed professional engineer, Stuart K. Sokol()tl~
P.E.; certified copies of building pennit applications dated January 3],2008 for a new building to be used
as a residence and dated November 13, 2008 for a roof over the porch and to add a carport, both listing
defendant as the contractor; and certified copies of building permits issued by the Incorporated Village of
North Haven to defendant, one dated May 29, 2008 to construct a two-story, one-family dwelling,
detached garage, covered porches and decks, and one dated December 12,2008 to construct an attached
carport on the subject premises.
It is well settled that the party moving for summmy judgment must make a prima htcie show·ing of
entitlement to judgment as a matter of law, o[f-cring sufficient evidence to demonstrate the absence of any
material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 ; Zuckermall
v City of New York, 49 NY2d 557,427 NYS2d 595 ). The failure to make such a prima hlcie
sho\\.'ing requires the denial of the motion regardless of the sufficiency of the opposing papers (see
Willegrad v New York Vltiv. Met!. Or., 64 NY2d 851,487 NYS2d 316 ). "Once this showing has
been made, however, the burden shifts to the party opposing the motion for summary Judgment to produce
evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which
require a trial of the action" (Alvarez v Prospect HO!Jp.,supra at 324, 508 NYS2d 923, citing to
Zuckerman I' City of New York, supra at 562, 427 NYS2d 5(5).
Labor Law 9 240 (1) requires that building owners and contractors: "in the erection, demolition,
repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause
to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings,
hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and
operated as to give proper protection to a person so employed." The kind of accident triggering Labor
Law § 240 (J) coverage is one that will sustain the allegation that an adequate ';scalfold, hoist stay, ladder
or other protective device" would have ';shield[ed] the injured worker from harm directly flowing from
the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 8 I
NY2d 494, 501,601 NYS2d 49 ; Salazar v Novalex COlltr. Corp., 18 NY3d 134, 139,936 NYS2d
624 [20 il]).
Labor Law § 241 (6) provides: "All areas in which construction, excavation or demolition work is
being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as
to provide reasonable and adequate protection and safety to the persons employed therein or lawfully
frequenting such places." Labor Law § 241(6) "imposes a nondelegable duty of reasonable care upon
owners and contractors 'to provide reasonable and adequate protection and safety' to persons employed in,
or lawfully frequenting, all areas in which construction, excavation or demolition work is being
performed" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348, 670 NYS2d 816 , quoting
Labor Law § 241 ; see Harrison v State, 88 AD3d 951, 93i NYS2d 662 [2d Dept 20ii]). inasmucb as
the statute is not self-executing, a plaintiff must allege a violation of a specific and applicable provision
of the Industrial Code (see Wilinski v 334 East 92nd Hous. Dev. Fund Corp., supra; Ross v CurtisPalmer Hydro-Elec. Co., supra; Jara v New York Racing Assn., fne., 85 AD3d 1121, 1123,927 NYS2d
87 [2d Dept 2011]; D 'Elia v City of New York, 81 AD3d 682, 684, 916 NYS2d 196 [2d Dept 20 II]).
Labor Law §§ 240 (1) and 241 (6) contain identical language exempting from the statutes
"owners of one and two-family dwellings who contract for but do not direct or control the work" (see
Labor Law §§ 240 [I], 241 ; Chowdhury v Rodriguez, 57 AD3d 121, 867 NYS2d 123 [2d Dept 2008];
see a/so Rodriguez v GailY, 82 AD3d 863, 918 NYS2d 187 [2d Dept 2011 J). In order for a defendant to
receive the protection of the homeowners' exemption, the defendant must satisfy two prongs required by
the statutes (see Chowdhury v Rodriguez, supra). first, defendant must show that the work was
conducted at a dwelling that is a residence t()f only one or two families; second, defendant must
demonstrate that defendant did "not direct or control the work" (Labor Law §§ 240 , 241 ), that is,
did not supervise the methods and manner of the work (see id.). The exception was enacted to protect
those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to
cover them against absolute liability (see Acosta v Hadjigavriel, 18 AD3d 406, 794 NYS2d 445 [2d Dcpt
2005]; see also Szczepanski v Dandrea ('onstr. Corp., 90 AD3d 642, 934 NYS2d 432 [2d Dept 2011]).
Courts have considered several factors in determining whether a homeowner is entitled to thc exemption.
including the nature and purpose of the work and the commercial versus residential usc of the property
(see Bartoo v Buell, 87 NY2d 362, 639 NYS2d 778 ; Castellanos v United Cerebral Palsy Assll.
(lfGreoter Suffolk,!nc., 77 AD3d 879, 909 NYS2d 757 [2d Dept 20i 0], Iv denied 16 NY3d 704, 9i9
NYS2d I 19 ])_ Whcn the owner of a one- or two~family dwelling contracts for work that directly
relates to the residential use of the home, even if the work also serves a commercial purpose, the owner is
shielded by the homeowner exemption from the absolute liability of Labor Law §§ 240 and 241 if the
owner did not direct or control the work (see Bartoo v Buell, supra).
Labor Law § 200 is a codification of the common-law duty of landowners and general contractors
to provide workers with a reasonably safe place to work (see Comes v New York State Elec. llnd Gas
Corp .. 82 NY2d 876. 609 NYS2d 168 ; Rou v Curtis-Palmer Hydro-Electric Co., supra;
Lomhartli v Stout, 80 NY2d 290. 590 NYS2d 55 ; Rojas v Schwartz, 74 AD3d 1046,903 NYS2d
484 [2d Oept 20101). Where a premises condition is at issue, property owners may be held liable for a
violation of Labor Law § 200 or based on common-law negligence if the owner either created the
dangerous condition that caused the accident or had actual or constructive notice orthe condition (see
Ortega v Puccia, 57 AD3d 54, 866 NYS2d 323 [2d Oept 2008]). By contrast, when a claim anses out of
alleged defects or dangers in the methods or materials of the work, there can be no recovery against the
owner or general contractor under Labor Law § 200 or common-law negligence unless it is shown that the
party to be charged had the authority to supervise or control the performance of the work (see id.).
Although property owners often have general authority to oversee the work's progress, mere general
supervisory authority at a worksite for the purpose of overseeing the progress of the work and inspecting
the work product is insufficient to impose liability under Labor Law § 200 or common-law negligence
(see id.). To succeed on a claim under Labor Law § 200 against a property owner, a plaintiff injured by
his or her use of defective equipment provided by his or her own employer must establish that the
defendant had the authority to supervise or control the performance of the work (see Ramos v Baker, 91
AD3d 930, 937 NYS2d 328 [2d Dept 2012]; Ortega v Puccia, supra).
I Iere, the Court initially notes that the unsigned and uncertified deposition transcripts of Mr.
Scddio on behalf of defendant, of non-party witness Richard Perillo, and of plaintiff from November 22,
2010 submitted by defendant are not in admissible form and, thus, cannot be considered on the summary
judgment motion (see III re Delgatto, 82 AD3d 1230,919 NYS2d 391 [2d Dcpt 20111; see also CPLR
3116 (a]; Martillez v 123-/6 Liberty Ave. Realty Corp., 47 AD3d 901,850 NYS2d 201 [2d Dept 2008]).
Mr. Seddio states in his affidavit dated December 9, 2010 that he and his wife, Annmarie, and son
are the sale and exclusive residents of the subject property and that the reason for building and moving
into the subject house was so that their son would no longer have to take a ferry to commute to school
from their prior residence on Shelter Island. In addition, he states that he and his wife are the sale owners
of defendant, which is the owner of their home on the subject propelty. Mr. Scddio explains that
defendant is the owner of the property because their accountant recommended that they use their pension
fund money to purchase the property and construct the home. He assures that as soon as he and his wife
are able to sell their home on Shelter Island, they will return the money to the pension fund and become
title owners of the property. Mr. Seddio informs that he and his wife entered into an agreement on or
about April 16,2008 to hire Richard Perillo of Perillo Building Corp. to build their house on the subject
property; that Mr. Seddio had no involvement of any kind in the construction work of Perillo Building
Corp.; and that at no time during any phase o[the work that was performed did either he or his wife
supervise, control or direct Mr. Perillo or any of his employees in any of the work that they performed. In
addition, he states that he and his wife did not supervise, direct or control any other person or entity
perfonning work in the construction of their house. Mr. Seddio also states that at all times he, his wife.
and their son expressly intended 10 live in the subject house as their permanent residence.
Plaintiff's deposition testimony from August 2. 2010 reveals that he worked at the construction
site of the subject house for approximately six months; he performed trimming and finishing work: and
there V,leretwo other Perillo employees working with him. In addition, plaintiff testified that on the dale
ofthc accident he and a co-worker, Javier, were applying plywood to the front of the house, each had a
ladder and a nail gun. PlaintifT also testified that just prior 10 the accident, his ladder was extended to its
hJl124 feet to the second floor ofthc house and Javier \-vas holding it, perhaps from the second tlOOf
window opening, and plaintiff had a hammer in his hand and was hammering a piece of plyv,iood that was
already set into place with two nails in its center. Plaintiff stated that the subject ladder was a Perillo
ladder, that he learned how to set up and secure the ladder from other employees, and that his employer
had a trailer at the job site where plaintiff obtained his tools prior to starting work. The nails that plaintiff
was hammering were approximately
ten inches above the end of the ladder and he was standing on the
third rung from the top ol'the ladder. As he \vas placing his hammer back into his belt and grabbing the
nail gun to l'inish nailing the plywood, the ladder began to move to the left and he fell to the right.
According to plaintifC because Javier was holding the ladder, they did not need to secure the ladder with
the "nails" on the side of the ladder to keep it from sliding.
By his affidavit dated rebruary 1,2011, plaintifT states that "My accident happened in the early
afternoon, after lunch. At that time, my co-worker, Javier Blaise, and I were working near the front of the
building, but on the right side of the front ... Javier and I had been assigned to work 111
that area by Kev1l1,
who also worked for Perillo. We each had a ladder." In addition plaintiff states that "Before I went LIpthe
ladder just before my accident, I asked Javier to hold the ladder from above, through an opening from
inside the building, because I had to cany a large piece of plywood up he ladder. I thought the ladder
would be more secure if Javier held it bccause the I O-penny nails that I had were three inches long and the
plywood was only II2-inch thick .. Putting a nail on the side of the ladder as a method of trying to secure
it had additional risks which is why I asked Javier to hold my ladder."
Here, defendant, the owner of the property, demonstrated its entitlement to judgment as a matter of
law with respect to the homeowner's
exemption by establishing that it did not direct or control the work
and that the property was intended to be used solely for residential purposes (see Holifield v Seraphim,
LLC, 92 AD3d 841, 940 NYS2d 1003 [2d Dept 2012]; see alsa Rail v Walker, _ NYS2d __ ,2012
NY Slip Op 02296 [2d Dept 2012])_ The proffered proof reveals that the Seddios did not provide plaintiff
with any equipment or work materials, nor were they even present at the time plaintiff was performing his
work (see Affri v Basch, 13 NY3d 592, 894 NYS2d 370 ). Plaintiff admitted at his deposition on
August 2, 2010 that the extension ladder that he was using at the time of his accident was provided by his
employer, non~party Perillo Building Corp., and that his employer had a trailer on the site containing
tools. Nowhere in plaintiff's admissible deposition testimony or in his affidavit does plaintiff expressly
state or indicate that the Seddios or defendant supervised him or directed or controlled his work. In
response to defendant's prima facie showing of entitlement to judgment as a matter oflaw, plaintiff failed
to raise a triable issue of fact (see Holifield v Seraphim, LLC, supra). Plaintiflfailed
to raise an issue of
fact as to whether the home was not a one~or two-family dwelling or that it was used for a commercial
purpose (see Pacheco v Halstead Communications, Ltd., 90 AD3d 877, 935 NYS2d 595 [2d Dept
20] I]). Evidence that defendant was listed in the applications for construction permits as the contractor.
that the construction permits were issued to defendant, and that the Seddios hired Perella Building Corp.
are insufficient to raise an issue of fact concerning direction, supervision or control ofpla1l1tiffs work (see
id [Trustee of Trust that owned property hired subcontractors to perform work and Trust was entitled to
Therefore, defendant is entitled to summary judgment dismIssing plaintiffs
Labor Law §§ 24() (1) and 241 (6) causes of action.
In addition, defendant established its prima facie entitlement to judgment as a matter oflaw
dismissing the causes of action pursuant to Labor Law § 200 and for common~law negligence (see Ruiz v
Walker, supra). Plaintiff's accident did not involve any dangerous or defective condition on defendant's
premlSCSand instead mvolved the manner in which plaintiff performed his work, which was not
supervised by defendant or the Seddios, and which was performed on equipment provided by plaintiff's
employer. not by defendant (see Ortega v Pm'cia, supra). Defendant demonstrated that the accident arose
from the means and methods of plaintiff's work and that neither defendant nor the Seddios had authority
to supervise or control the work (see Aftri v Basch, supra; see also Ruiz v Walker, supra; Ramos I!
Baker, 91 AD3d 930, 937 NYS2d 328l2d Dept 20121; Paez VSllIIII, 78 AD3d 673, 910 NYS2d 511[2d
Dcpt 201 OJ). In opposition, plaintiff failed to raise a triable issue of fact (see Ru;z v Walker, supra;
Ramos v Baker, supra; Pacheco v Halstead Communicatiolls, Ltd., supra). Therefore, defendant is
entitled to summa!)' judgment dismissing plaintiff's Labor Law § 200 and common-law negligence causes
Accordingly, the instant motion is granted and the complaint is dismissed in its entirety, and the
cross motion is denied.
_X- FINAL DISPOSITION