Pantovic v YL Realty, Inc.

Annotate this Case
Download PDF
Pantovic v YL Realty, Inc. 2012 NY Slip Op 32031(U) July 11, 2012 Sup Ct, NY County Docket Number: 117471/08 Judge: Paul Wooten 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] SCANNED ON 81212012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY HON. PAUL WOOTEN PRESENT: PART Just ice 7 WALTER PANTOVIC, -. Plalnt iff, INDEX NO. -against- 117471108 011 MOTION SEQ. NO. YL REALTY, INC., and SPRINT COMMUNICATIONS COMPANY L.P., Defendants. SPRINT COMMUNICAT10NS CO hllPANY L. P., Third-party Plaintiff, 590807109 "against- PENMARK REALTY CORPORATION, Third-party Defendant, ~6 02 2012 ~ p j cmmary judgment p The following papers weie read on this motioo by &~&w#&-j dlsmissing the third-party complaint. I I PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavlts - Exhibits ... Answerlng Affidavits - Exhibits (Memo) I Replylng Affldavits (Reply Memo) Cross-Motion: L? Yes NO Motions sequence numbers 01 1 and 012 are hereby consolidated for disposition In this action arising out qf 'personal injuries, third-party defendant Penmark kdalty Corporation (Penmark Realty) moves, pursuant to CPLR 3212, for summary judgment dismissing the third-party complaint (motion sequence number 01 1) In motion sequence number 012, defendant/third-party plaintiff Sprint Communications Company L.P. (Sprint) moves, pursuant to CPLR '0212, for partial summary judgment dismissing plqintiff'q Labor Law $5 200, 240(1), and 241(6) causes of action. BACKGROUND On August 9, 2007, plaintiff was working as a building superintendent at the residential Page 1 of 9 [* 2] condominium building lwated at 71 Nassau Street in Manhattah. His office WAS located in the basement, in a room that had bgen divided into two. Plaintiff's office was on m e side of a door, and a small room which Sprint had leased for a cell tower site was on the other. Only a wall separated the two rooms, and in order to gain entry into the Sprint site, one had to go through plaintiff's office. Apparently, the heat generated by the cell tower was excesqive and permeated plaintiff's office. Plaintiff repeatedly complained about the heat to the buildiqg's Sponsor, defendant YL Realty, Inc. (YL Realty), the managing agent (Penmark Realty), and Sprint, but no relief was forthcoming. Finally, Penmark Realty told plaintiff to find a way tg vent the room and then to install an industrial grade air COnditioning unit. While plaintiff was on a ladder, trying to open a trap door in an air conditioning duct within Sprint's cell sita, he fell from the idpnce a$ to vhat cauqed er and was injured. There is t recollection is just that he was bh d therr woke Ilp ih an emergency rbgrh (Plaintiff's December 10, 2008 EBT at . Sqt~seqyently, plqintiff brought tWe herein action asserting five causes of action, for'negl'igence and violafiqns of Labor Law §$ 200, 240(1), 241 (6), and two purpqrted caus I for vjolations of OSHA and New York's Industrial Code. is the overall owner of the 50 or so Nonparty Croft Building C9ndpt-n managing agent; and YL Realty is esidential units in the building ed by YL Realty as eight commercial the sponsor. The first floor an units. By means of a PCS Site Agreement, Sprint leased the basement cell site from the sponsor. Sprint in its third-party camblaint alleges clairris for contribution, common-law and contractual indemnificati I to prpcure insvraoce. Summarv Judgment s Summary judgment i a drastic remedy that should be granted only if no triable issues of Page2of 9 I I I [* 3] fact exist and the movant is entitled ts judgment as a matter of law (s& Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 261, 364 [1974]). The party _. . _ . .-. moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Winegrad v New York Univ, Med. Ctr., 64 NY2d 851 , 853 [1985]; CPLR 3212[b]). A failure to make such a showing requires depial of the motion, regirrdlezs of the sufficiency of t h e opposing papers (see Smalls v AJl M u s . , Inc., 10 NYgd 733, 735 [2008]). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible fQrm sufficient to establish the existence of material issues of fact that require a trial for resolution (Giuffrida v Citibank Gorp., 100 NY2d I 72, 81 [2003]; sge also Zuclcerman v City bfNBw Yo I I d 557, 562 [1980];7 C ( 3212[bJ). I When deciding a summary judgment hotibn, th 1 ourt s rgle is soldy to deteimine if 1 any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1*957]). Tee court views the evidence in the light most favorable to the nonmoving parly, and virig.party the benefit of all teasonable inferences that can be drawn frgm t h e evidgnqe (see Rotund@ ¬xtruders, lpc. v qppos, 46 NY2d 223, 231 [1978]). I t I Labor Law 5 240(1) r , Labor Law 5 240 ( I ) provides, in relevant part: All contractors and owners and their agents, ... in the ... repairing ... of a building or structure shall furnish or erect, or cause to be furnished or erected for t h e perfort-dance of such labor, ... ladders nd other devices which s ratBd as to give proper I Labor Law 5 240 (I) provides exceptiqnal protection for workers against the special hazards that arise when either the work site Page3of 9 P -- [* 4] itself is elevated or is positioned below the level where materials or load are being hoisted or secured. TPe fgilure of an bWner ... to furnish or erect suitable devices to proteht workers when work is being performed results-in absolute liability against that owner under Labor Law $240(1) (Jamindar v Uniondale Union Free School Dist., 90 AD3d 612,615 [2d Dept 201 11 [internal quotation marks and citations omitted]; see also Hsrrison v State ofNew York, 88 AD3d 951,951-952[2d Dept 201 I]), -- The statute imposes absolute liability on building owners and contractors whose failure tg provide proper protectign to workers emplpyed on,a cQnStructionsite proximately causes injury I to a worker (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 , 7 [201I], quoting Misswitti v Mark IV Constr. Co., 86 NY2d 487,490 [1$$5]). order [tlo establish liability on a In Labor Law $240(1)c g and that the violation statute was violated of action, a plaintiff mus prQximafedause of his (Herrer? v Union Mech. of NY Corp., 80 AD3d $ DISCUdS 1 Sprint s Motion (Motion Sehuknce 012) Sprint contends that plaintiff was not performing an activity protected by Labor Law $9 240(l) and 241(6)when he wils injured Plaintiff maintains that he was repairing Sprint s I I nonfunctional air conditioning upit at the time, While repair qf a brokep gr malfurrctioni among [Labor Law 5 4404 I enumerated activitie I d o n is not covered activity (Santiago v Fred-Doug I1 7 L.L.C., 68 AD3d 555, 555 [lst Dept 20091;See also Ozimek v , Holiday Val., Inc., 83 AD3d 1414,1415 [4th Dept 2011][ (i)t is well settled that (Labor Law 5 240 [I]) does not apply to routine maintenance in a non-cQnstruction, non-renovation context ]; Anderson v Olympia ,& YorK Tower B Co., 14 AD involved in the rep1 I orn-out parts in is engaged in routine maintenance]). The questioq of whether a particular activity constitutes a Pgge4of 9 I I [* 5] I I repair or routine maintenance must be determined on a case-by-case basis (Riccid v NHT I 1 Owners, LLC, 51 AD3d 897, 899 [2d Dept 2008]), and [dlelineating between routine maintenance and repairs is frequently a close, fact-driven issue. That distinction depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work, and whether the work involved the replacement of components damaged by normal wear and tear (Pier; v B&ts Welch Assoc., 74 AD3d 1727, 1728 [4th Dept 20101 [internal citations omitted]; see also Alexander v Hqrt, 64 AD3d 940 [3d Dept 20091). At the time of the accident plaintiff was not engaged in repairing, or any other protected activity. In this nonconstruction and nonrenovation context, plaintiff was not repairing Sprint s air conditioning unit as it was not broken. Daniel Kwarteng, Sprint $ field technician, assigned to the cell site at the timg summoned him to the cell site, the air cdrlditibher was mefaly turned b f f ,not in need of repair (see Kwarteng EBT, at 63; see also id. at $9, 60, 81, 62 [ the reason is that tbe air conditioner I I I was turned off Not that the air conditioner has brqken down, it has beeh turned off ]). There is no evidence that plaintiff even touched Sprint s qir conditioner itself i attempt to correCt some defect. Rathet, the repaiv plaintiff Mia s atteMpting to aehieve>was!tordwce the I heat in his office by the installatinn of a new air I ioqipg unit in his own office, not to make Some modification tQ Sprint s existing uni 2009 EBT, atllQ9). portion of Sprint s motion which seeks summary judgment dismissing plaintiff s section 240(1) Claim is granted. I With respect to Labor Law 5 241 (6), that statute applies only to [alllareas in which constructiw, excavatiqn or demolition work is beieg perfpr 6 none of this acti bgieg performed at the time af plqintiff s accident, summary also granted (see Montalvo v New York 8, Preqbyt. Hospital, 82 AD3d 580, 681 [1st Dept 201 111 [ As plaintiff was not engaged in covstruction, demolition or excavation when he was injured, he Page5of 9 [* 6] I ISnot eligible for the protection of Labor Law 3 241(6) j). Plaintiff s complaint contains causes of action for violations of OSHA and New York s Industrial Code (12 NYCRR Part 23). Alleged violations of OSHA regulations do not provide a basis for liability under Labor Law 5 241 (6) (see e.g. Shaw v RPA Assoc., LLC, 75 AD3d 634, 637 [2d Dept 20101; Cun-En Lin v Moly Family Monuments, 18 AD3d 800, 802 [2d Dept 20051). The Ipdustrial Code forms the basis for clqiryls of violations of Labor Law 5 241(6), but I alleged violations of Industrial code proviSions d4 not constitute a cause of action in and df P themselves. Moreover, plaintiff fails to allege violation o a specific, applicable section of the Industrial Code in either his complaint or in his bills of particulars (see e.g. Ventirniglia v Thatch, Ripley & Co., LLC, _ I AD3d -, 5 241 (6), a plaintiff must est 201-2 NY Slip Op 05;163, at-*3 [ Td rdcover under Lhbw Law ish that, in conneqtio ittl construction, de I excavation, an owner or general contractor violated an Industrial Code provision which sets I forth specific, applica@elsafetystandtirds ]). Plqintiff f bwe allegation that Sprin I SectiOn 23 of the Industrial Code of the State Qf New YOrk (Camplant, 7 70) provides no basis for recovery under Labor Law 5 241(6). Labor Law § 200 c9,difies the cornr;nsn-law dutyito,mqintain a safe wbrk site (Ventirnigha v Thatch, Ripley & Go., LLC, __ AD3d -, I 2012 NY Slip Op 05163, *3 [Zq Dqpt 20121; see Comes v yew York State E/m, & Gals Cpr;p. 8 2 hY2d 876, 877 [ 19 two distinct standards ilpplicable to section 200 cases, depending on the kind of situation involved: whether the injuries resulted from a dangerous condition, or from the means and methods by which the work was done. Where a premises condition is at issue, property owners may be held for a violation of Labor Law $ 200 if the owner ei dangerous condition absed the accident gr had actual Qr constructive! dAngerous condition that c a u ~ e d accident (Sanders v St. Vincent Hosp., 95 AD3d 1195, the 11% [2d Dept 20121 [interior quotation marks and citations omitted]). In this matter, plaintiff Page 6 of 9 >n I I I [* 7] I alleges that the excessive heat in his office was a dgngerous condition. He asserts that he was on the ladder in Sprint s cell site because of the heat, but there is no evidence that plaintiff I I - suffered any deleterious effects from the heat, and there is ng evidence that excessive heat was a proximate cause of his injuries. Since there were no witnesses and plaintiff does not remember his fall or what caused it, there can be no question of fact to go to the jury. Given the dearth of facts, a jury could only specylate about the cause of the accident, and therefore, speculate as to whether Sprint had any liability under Labor Law 5 200 or common-law negligence. This same reasoning disposes of plaintiffs allegation that Sprint owed plaintiff? duty because it was contractually obligated, but failed, to maintain the cell site in a reasonably safe I cotldition. There is simply no evidence that1the hgat proximately caused plaintiff s, Supervision and control arerprecor-tditigns liability under Labor La& tb 3 200 when the I accident arises from the contiactor s means and methods of performing the work. In other words, the party against whom liability is sought must have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition [interior quotation .marks and citation omitted] (Grifin v Clinton Green south, LLC, -AD3d -, 2012 NY Slip Op 04841, *5 [Ist Dept 2014). A defendant has the authority to gupeivise or contrsl the vyork l or purposes of Labw Law 5 200 when Ithat qefqedant bears the responsibility f m t which the work is performed (Schwind v Me/ Laby Constr. Mgt. Corp, 95 AD3d 1196, 1 198 [2d Dept 20121 [citation omitted]). Plaintiff alleges that Sprint had the authority to supervise and control his attempt to vent the cell site in preparation for the installation a new, qir coqditioner because Sprint ql-lould have done the job, but failed t9 do so, leaving,plaintiff in the po$ition to do the installatipn (See I Roth 2/21/11 Affirm. in Opp., 7 38 [ The work pf PANTOVIC should have beon performed by SPRINT However, it was SPRINT S refusal to take control and responsibility for the worksite Page 7 of 9 I [* 8] I that necessitated PANTOVIC S int&-vention ]). Plaintiff admits that Sprint did not supervise him (Roth 2/21/11 Affirm in Opp., 7 42), and there is na qvidence that Sprint authorized plaintiff to even enter the cell site area, let alone to touch any machinery he found within it. Moreover, there is no evidence that Sprint had anything to do with plaintiff installing a new air conditioner in his own office, which was separate and distinct from Sprint s cell site. Thus, the portion of Sprint s motion which seek$ summary judgment dismissing plaintiff s Labor Law 5 200 claim is granted. Because section 200 is the codification of an owner or general contractor s duty to provide workers with a safe work place (Griffin v Clinton Green South, LLC, -AD3d -, 2012 NY Slip Op 94841, supra), plaintiff s cause of action for common-law negligence against Sprint is also dismissed, and as a result the entire complaint is dismi$sed 8gqiq$t+?pyjnt. 11 H . n I Penmark Realty s Motion (motion sequerice numb& 01 I) I When a complaint agaifist a party is qismisaed, [tlhe thirdrparty actigns and all W s b s claims are dismissed as a necessary Consequence of dismissihg the complaint in its entirety (Turchioe v AT & T Communications, 2SF AQd 245, 249 [lqt Dept 19981). Therefore, Penmark Realty s motion for sumrrmy judgment dismissing the third-pwty aompbint is Sjraded: I I YL Realty r ever; in deciding this motion thb Court YL Realty has ngt appeared i may, in its discretion, search the record and grant sumiary judgment t9 non-moving parties (see CPLR 3212(b); see also Atiencia v MBBCO /I, Inc., 75 AD3d 424 [ l s t Dept 20101 [ A court, in the course of deciding a motion, is empowered to search the record and Award summary judgment to a nonmoving pa0 ; Mini Mint lnc.v up Inc., 83 AD3d s v city Q[ dew ~ o r k21 , D2d 435,43? [ t 199$]), After s is clear that plaintiff has no viable claim against YL Realty. Accordingly, the Court grants YL Page8of 9 # I [* 9] Realty summary judgment, pursuant to CPLR 3212(b), dismissing the complaint as against it. 1 CONCLUSION . Accordingly, it is ORDERED that Sprint Communications Company L.P. smotion (motion sequence number 012) is granted, and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court; and it is further; ORDERED that the Court searches the record and grants summary judgment to YL Realty, Inc. and dismisses the action as against YL Realty, Inc.; and it is further ORDERED that Penmark Realty Corporation s motion (motion sequence number 01 1) 1s granted; and it is further ORDERED that Sprint (Tcihlinu ny LIP. is directed t9 serve a copy of I I order with Notice of Entry uponlall pdyties and ,upon the Clerk of the Court who is directed to enter judgment accordingly. Check one: 4 a FINAL QISPOSITION Check if apprd NON-FINAL DISPOSITION T POST Page9of 9 u RE I I .

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.