Djaiazov v Penthouse Acquisition, LLC

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Djaiazov v Penthouse Acquisition, LLC 2012 NY Slip Op 32072(U) July 31, 2012 Sup Ct, NY County Docket Number: 105897/09 Judge: Marcy S. Friedman 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] I SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MARCY S. FRIEDMAN, 3,S.C. PART Justice ' INDEX NO. Index Number : 105897/2009 DJAIAZOV, JULIAN vs. PENTHOUSE ACQUISITIONS SEQUENCE NUMBER : 003 MOTION DATE MOTION SEO. NO. SUMMARY JUDGMENT The following papers, numbered 1 to s 7 MOTION CAL. NO. were read on this motlon to/for PAPER8 NUMEERED Notlce of'Motlonl Order to Show Cause - Affidavits - Exhibits ... C q p .-&44j4w- An8wer g Affl avlt - Exhibits Replylng Affidavits Ctoss-Motion: 0'6s No Upon the foregoing FILED NEW YORK C@UNTYCLERK'S OFFICE u I DISPOSITION IWWCy S!FMIEDMAN, J.S.?, ON FINAL S N O N - I N A L DlSPOSl u DO NOT POST 0 REFERENCE Check if appropriate: Check one: / [* 2] Decision and Order -againstPENTHOUSE ACQIJISITION, LLC, R.D. RICE CONSTRUCTION, INC., and JED JOHNSON ASSOCIATES, INC., Defend ants. IF E A 6 07 a2 U 1 NEW YORK COUNTY CLERK'S OFFICE In this action involving a painter's fall from a scaffold, dekndant Jed Johnson Associates, Inc. (Jed Johnson) moves, pursuant to CPLR 3212, for suinniary judgment dismissing all claims and cross claims as against it (Motion Seq. No. 003). Plaintiff Julian Djalazov moves for partial summary judgment as to liability against defendant R.D. Rice Construction, Inc. (R.D. Ricc) on his Labor Law 8 240 (1) claim (Motion Seq. No, 004). R.D. Ricc cross-moves lor summary judgment dismissing plaintiffs complaint, and for liability on its common-law indemnification claim against Jed Johnson. BACKGROUNI) On October 26, 2008, plaiiitifT, through his employment with nonparty Gotham Painling (Gutham), was working in the master bathroom of a penthouse apartment, owned by Penthouse Acquisition, I L C (Penthousc) and located at 80 Columbus Circle in Manhattan. October 26, 2008 was a Sunday, and only plaintiff and two other Gotham workers, including plaintiff-s foreman, werc present at the jobsite. (Plaintift-s Deposition, at 23-27.) Plaintiff testified that the scaflbld moved while lie was working, causing him to fall to thc ground and to injure his right [* 3] I heel. (u., 75.) at 37, Plaintift s complaint alleges that defendants are liable under Labor Law 8s 240(1), 241(6), and 200, and for common-law negligence. Lucy Djalazov, plaintifFs wife, seeks damages for loss of her husband s services and consortium. Plaintiff has stipulated to discontinue his claims against Penthouse. DISCUSSlON Summary judgment must be granted if the proponent makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, and the opponent fails to rebut that showing. (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010], quoting Alvarez v Prospect HOSP.,68 NY2d 320, 324 [ 19861.) However, if the moving party fails to make a prima facie showing, the court must deny the motion remrdless ofthe Sufficiency of the opposing papers. (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008] [internal citation omittcd] [emphasis in original].) Initially, the court will grant the branch of Jed Johnson s motion that seeks dismissal of the complaint as against it, as plaintiff, by not opposing, has shown (anintention to abandon his claims against Jed Johnson. (Garv v Flair Beverage Corp., 60 AD3d 413, 413 [lst Dept 20091.) Moreover, plaintiff has not opposed the branches of R.D. Ricc s motion that seek dismissal of plaintiff s claims under 1,abor I,aw $8 241 (6) and 200 and for common-law negligence. Accordingly, thc court will also dismiss those causes of actiQii. I. I,abor I,aw 8 240 (1) Labor Law tj 240 (1) providcs, in relevant part: All contractors and owners and their agents ... in tlic crection, 2 [* 4] 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 operatcd as to give proper protection to a person so employed. Ihc Court of Appeals has held that this duty to provide safety devices is nondelegable (Gordon v Eastcrn Ry. Supplv, 82 NY2d 555,559 [1993]), and that absolute liability is imposed where a breach has proximately caused a plaintiff s injury, (Hland v Manoclicrian, 66 NY2d 452, 459 [I 9851.) A statutory violation is present where an owner or general contractor fails to provide a worker engaged in 5 240 activity with adequate protection against a risk arising h+om a physically significant elevation differential. (Runner v New York Stock Exch.. Inc., 13 NY3d 599, 603 [ 2O09]. Where there is a violation, owners and general contractors are absolutely j liable even if they do not have a continuing duty to supervise the use of safety equipment. (Matter of 5 1 St Street Crane CollapseZ,itin, 89 AD3d 426, 428 11 st Dept 201 11 [citation omitted] .) The first issue in contention between plaintiff and R.D. Rice is whether R.D. Rice was a general contractor on the pro.ject. The contract between Penthouse and K.D. Rice is titled Standard Forin Agreement Bctwcen Owner and Construction Manager wherc the Construction Manager is Also the Constructor. Moreover, plaintiff submits the deposition testimony of Kevin Adarns (Adanis), a supervisor for R.D. ICice on the project, who testified that R.D. Rice is a general contractor (Adams Jleposition, at 19), and that it servcd as such on the subject project: Q: A: Q: So, R.D. Rice, it is your position, you were the general contractor for this project ? Yes. You had the authority to control and supervise all the construction work 3 [* 5] except for thosc subcontractors not hired by R.D. Kice ? ... A: Q: A: No. I mean, every person who was on the job I supervised. Like I stated earlicr, if 1 walked into a room and I saw someone standing in a bucket of water with a light bulb, I would stop them. But that applied to all subcontractors, not just the ones hired by R.D. Rice; is that fair? That s fair. (Id.at 45-46.) R.D. Rice argues that Penthouse separately hired Jed Johnson as the general contractor with respect to the painting work at the subject project. (See Aff. of A. Muraidekh [R.D. Rice s Attorney] In Support of Cross-Motion, 71 8, 22.) R.D. Rice relics on ยง 6.1.2 of the General Conditions of its contract with Penthouse, which states: When scparate contracts are awarded for different portions of the Project or other Construction or operations on the site, the L C ~ i ~ t r a ~inothe Contract Documents t r in each case shall mean the Contractor who executes each separate OwnerContractor Agreeinen t. Plaintiff submits a copy of an engagement letter signed by Jed Johnson and Penthouse for interior design serviccs. The engagement letter also states: Any painting, carpentry, or other construction work contracted through or supervised by [Jed Johnson] will be billed at cost plus 20 percent. If an outside architect is retained who will be supervising construction, this 20% on construction docs not apply. JJA will consult on an hourly basis for all construction related work. Painting will, however, incur a 20% fee to JJA. (Jed Johnsodfenthouse April 2, 2007 Engagement Letter, 7 I[E 1 ,) . . R.D. Rice submits tlic dcposition testimony of Janice J farding (Marding), who works as an estate manager for Hugo Enterprises IdLC,which, like Penthouse, is owned and controlled by nonparty Joe Rickctts. At her dcposition, Harding was handed a document that she identified as a contract that I signed for Mr. Ricketts so that Jed Johnson could oversee Gothain Painting for 4 [* 6] the total amount listed here and we did it in three installments. (Harding Deposition, at 195.) R.D. Rice focuses on the word oversee and contends in effect that it indicates that led Johnson s function was that of a general contractor with respect to the painting on the subject project. R.D. Rice also emphasizes that painting was taken out 0fR.D. Rice s budget. Harding testified in this regard: Once Gotharn Painting was brought on board, and I don t remember the exact details of when -- 1 assume it occurred at one of our construction meetings, but thcrc came a point in time whcrc, during one of those meetings 1 was present and R.D. Rice, Jed Johnson, and other people who were at the construction meeting, we came to the decision to remove the painting budget from R.D. Rice and give that control of painting over to Jed Johnson because we felt they had the expertise to oversee it. At that time we just thought that made more sense. R.D. Rice removcd their budget line; I then went into a contract with Jed Johnson, that I signed on behalf of Mr. Ricketts, that had phases of installments for the overall painting. Pam Cozzi was at the meetings, and R.D. Rice said that thcy were still going to oversee all the scheduling of the painting because that was Pam s job, in order to keep the prqject running on time. (M. 184-185.) at R.D. Rice also submits an e-mail thread, dated January 14, 2008 and January 15, 2008, between Hardiiig and Jcd Johnson s Arthur Dunnam, in which thc two negotiate over the rate of mark-up Jcd Johnson would get on the paiiitiqg work done on thc project. (R.D. Rice CrossMotion, Ex. J.) However, plaintif i and Jed Johnson both contend that Jed Johnson s oversight responsibilities were limited lo those of an interior designer, e.g., matching paint colors with other fiirnishings. Heather Ann Moore (Moore), a senior designer with Jed Johnson, testiiied that Jed Johnson had no role with regard to safcty and that R.D. Kice was responsible for safety on the job site. (Moore Deposition, at 59-60.) Harding, Penthouse s witness, iestified that K.11. 5 [* 7] Rice retained safety oversight for the entire project, painting included, and that .led Johnson s oversight was limited to inatters of interior decoration: LQ: ... was it your intention [in signing the PenthoudJed Johnson April 2, 2007 Engagement Letter] to change or abrogate any of the duties of R.D. Rice as it concerns the safety and supervision of the project? ... A: 0: No. Would it be fair to say, when you signed that contract, that was strictly for the intcrior design services to be provided to your client by Jed Johnson? ... Q: A: Yes. And it wasn t to change any of the site safety meetings or site safety responsibilities whatsoever by R.D. Rice; would that be fair to say ? A: Correct Q: Just to elaborate further, going back to the [Penthouse/Jed Johnson correspondence], where it refers to supervising construction, was that only with respect to interior design functions of led Johnson? Yes. That was my understanding, yes. ... .,. A: ... Q: A: And that had to do with whether the paint was matching or the fabric was the right fabric? Right. ,,. Q: As opposed lo R.D. Rice s responsibilities, which were for construction related activities; is that correct? ... A: Q: Yes. And that would iiicludc the monitoring of thc means and methods of the subcontractors, such as Gotham Painting ? .,. A: c): Yes. And it would be fair to say that .led Johnson did not have thosc responsibilities ? A: Q: Coirect. It would be fair to say that K.1). Rice was responsible for sile safety over tiotham Painting on October 26th, 2008? A: Yes. ... ... 6 [* 8] (Hading s Deposition, at 228-232.) Based on the testimony of Penthouse s Harding, R.D. Rice s Adams, and led Johnson s Moore, as well as the plain language of the PenthouseNed Johnson Engagement Letter, the court holds that Jed Johnson never displaced K.11. Rice as the general contractor for any part of the subject project under $ 6.1.2 of the Pent1iousdR.D. Rice agreement. Jed Johnson provided only interior design services, and it supervised the painting work only with respect to interior design matters. I n contrast, the record establishes that R.D. Rice typically coordinated that painting work, and it retained the ability to correct unsafe practices by the painters. While Labor 1,aw $ 240 (1) . . , claims have been dismissed on the ground that a plaintiff s work at the time of the accident was outside the scope of the general contractor s contract, this dcfcnse inures only to the benefit of parties who lacked the authority to supervise or control the work. (Butt v Bovis Lend Lease LMR, Inc,, 47 AD3d 338, 340-341 [ 1st Dept 20071 [internal quotation marks and citations omitted]; see also Moracho v Open Door Farnilv Med. Ctr.- Inc., 74 AD3d 657 [lst Dept 20103.) Here, as discussed above, the record clearly demonstrates that K.D. Rice had the authority to supervise plaintiffs work. Whether R.D. cxercised this authority is not relevant to this inqujry. (Id.) Thus, the fact that plaintiff was working on a Sunday, and R.D. Ricc was not present on tlic jobsite, is irrelevant. Thc cascs on which 1C.D. Ricc relies to support its claim that it was not a general contractor for purposes of the painting work are not persuasivc, as the defendants in these cascs lackccl thc airtlioiity t o c t i i i ~ r o ltlic w o i k giviiig risc to thc p1:iinlil l-s ii1.iLii.y. (Seee q. Wong v New York Times Co. , 297 AD2d 544, 549 [Isl 13cpt 2002 1; Avilcs v C itv of New York, 277 7 [* 9] AD2d 19, 19 [ 1st Dept 2OOOJ; Balthazar v Full Circle Constr. Corp., 268 AD2d 96, 98 Llst Dept 20001; Phillips v Wilmorite, Inc., 281 AD2d 945, 946 [4th Dept 20011.) The court further holds that plaintiff makes a prima showing of entitlement to judgment against R.D. Rice under I,abor Law 4 240( I), based on his deposition testimony that he was thrown olfa scafibld when it moved while he was sanding a ceiling in preparation for painting it. (Plaintill s Deposition, at 38, 41-42,) Plaintiff was engaged in the protected activity of painting. As the scaffold moved, it did not provide adequate protection against the risk of falling that arose from the physically signiticant height at which plaintiff was performing his work. The scaffold s failure was thus a proximate cause of plaintiffs accident. (See Zencotita v JFK Intl. Air Term., _LLc, 67 AD3d 426, 427 [Ist Dept 20091 [holding that plaintiff was entitled to summary judgment as to liability under Labor 1,aw 5 240 (1) where he slipped ofl a scaffold because the scaffold moved and defendants did not provide plaintiff with any additional safety devices to prevent his fall] .) In opposition, R.D. Rice argues that there is ; question of fact as to whcther plaintiff was I the sole proximate cause of his accident because he failed to lock the scalfold s wheels. R.D. Rice s reliance on Blake v Neichborhood Hous. Servs. 0 f N . Y . City (1 NY3d 280 [2003]) is misplaced. There, the plaintiff testified that he was uncertain as to whether hc had locked the extension clips o f a ladder, and it was clearly his responsibility lo lock the clips, as he owned the ladder and was working by himself on behalf of his own contracting company. (u 283-284.) at Here, plainlifi s mcontroverted testimony is that the foreman is supposed 10 lock thc wheels of the scaff old before plaintiff gcts on it. (Plaintiff s Deposition, at 37.) Plaintiff also testified that he did not check whether the wheel locks were engaged, as he assunied that the scaffold was i n a [* 10] safe condition: Q: A: 0: A: Q: A: Ifit was already in that spot and you were going to work there, you would just climb on the ladder, on to the scaffold and start your work? Ycs, I thought it s safe. It s okay. If a scaffold is already in that spot and it had not been moved and you decided to work on lhat area and climb up it, would you have checked the wheel locks before climbing up to ensure that it was safe? No. On this particular occasion, did you check the wheel locks to makc sure they were locked before you climbed up ? No. (Plaintiffs Deposition, at 63.) Even if plaintiff s failure to check the wheel locks were negligent, plaintiff has established a statutory violation by showing that the scaffold he was directed to work on malfunctioned or was improperly set up by his foreman. Thus, any negligence on plaintiffs part was not the sole proximatc cause his accident. As Blake held, if a statutory violation is a proximate cause of an in-jury, the plaintiff cannot be solely to blame for it. (Uat 290.) Apparently relying on the fact that the accident was unwitnessed, defendant also argues that there is a question of fact as to whether plaintiff fell off of the scaffold. Howevcr, where there is no substantial challenge to a plaintifi s credibility, [tlhat the accident may not have been witnessed by others docs not bar summary judgment in plaintiffs favor. (Manninc, v J.A. Jones Constr. Group, LLC, 16 AD3d 235, 236 [ I st Dept 20051, citing Klein v City of New York (89 NY2d 833, 834 [1996].) Contrary to delendant s contention, plaintiff had no obligation to come forward with affidavits from thc two co-workers who were present on thc day of the accident. Nor did plaintif s Iailure to do so raise a question as to the credibility of plaintiffs testimony about how the accidenl happened. 9 [* 11] R.D. Rice also fails to raise a question as to plaintiff s credibility based on a Worker s Compensation Board form entitled Employer s Keport of Injured Employee s Change in Employment Status Resulting From Injury, dated January 15,2009 and prepared by a Gotham employee. In the section of the form for Nature of Injury, a note states: Claims he fractured lice1 falling off a ladder. (R.13. Rice Cross-Motion, Ex. K.) There is no indication in the form that plaintiff was the author of this statement. The report is hearsay and cannot serve, in the absence of any admissible evidence, to defeat summary judgment. (See San Andres v 1254 Sherman Ave. Corp., 94 AD3d 590, 591 [lStDept 20121; compare Ellerbe v Port Auth. ofN.Y. & N.J., 91 AD3d 441, 442 [ 1st Dept 20121 [finding issue regarding plaintiffs credibility as to cause o l accident where site safety manager testified to different version of accident and made incident report containing admission attributed to plaintiff that contradicted plaintiffs deposition testimonyj.) It is noted, moreover, that the report is contradicted by an earlier Worker s Compensation Board lorm, dated October 27, 2008 and prepared by Gotham s President, which states in the section for Cause of Accident : fell off scaffold while working above his head. The court has considered R.D. Rice s remaining contentions and h d s them without merit. Plaintiff s inntion for partial summary judgment as to R.D. Rice s liability under Labor Law 5 240 (1) will therefore be granted. IT. Common-Law Indemnification The equitable doctrine of common-law indemnification requires a party that is actively at fault in bringing about the injury to indemnify another party that is held responsible solcly by operation of law bccausc of [its) relation to the actual wrongdoer. (WcCai-thy v Turner Constr., Inc., 17 NY3d 369, 374, 375 [20111 [internal quotation marks and citation omitted]). 10 [* 12] Here, R.D. Rice submits no evidence that Jed Johnson was actively at fault. In fact, the record indicates that Jed Johnson was not present at the time of plaintiffs accident and that it had no responsibility for safety on the jobsite. R.D. Rice s cross claim for common-law indemnification should therefore be dismissed. ORDER It is hereby ORDERED that defendant led Johnson Associates, lnc. s motion for summary judgment dismissing all claims and cross claims as against it is granted, with costs and disbursements to said defendant as taxed by the Clerk olthe Court upon the submission of an appropriate bill of costs; and it is further ORDERED that the action is severed and continued against R.D. Rice Construction, Inc., the remaining defendant; and it is further ORDERED that plaintiffs motion for partial summary judgment as to liability on their Labor Law $ 240 (1) claim against defendant R.D. Rice construction, Inc. is granted; and it is further ORDERED that defendant R.D. Ricc Construction, Inca scross motion is granted only to the extent that plaintiit s claims under Labor Law $8 200 and 241 (6) and for common-law negligence are dismissed; and it is further ORDERED that thc Clerk of the Trial Support Office shall place this matter upon the trial calendar, upon payment of thc appropriate fees, if a Dated: New York, New York July31,2012 11

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