Collymore v 1895 WWA, LLC
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Collymore v 1895 WWA, LLC 2012 NY Slip Op 32385(U) September 10, 2012 Supreme Court, Suffolk County Docket Number: 10-27975 Judge: Joseph Farneti 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] SIIORT HmM URO!'R INDEX No CAL No. 10-27975 12-00135OT = v:J"'-J COJ: ~ SUPREME COURT - STATE OF NEW YORK IAS PART 37 - SUFFOLK COUNTY PRESENT: Hall. JOSEPH FARNETI Acting Justice Supreme Court MOTION DATE 2-24-12 (#001) MOTION DATE 3-22-12 (#002) ADJ. DATE 6-7-12 Mot Seq. # 00 I - MOlD # 002 - XMD ----.----------------------------------------------------------X GARY COLLYMORE, Plaintiff, CHRISTOPHER S. OLSON, ESQ. Attorney for Plaintiff 434 New York Avenue Huntington, New York 11743 - against 1895 WW A, LLC, Defendant. TROMELLO, McDONNELL & KEHOE Attomey for Defendant P.O. Box 9038 Melville, New York 11747 ---------------------------------------------------------------X Upon the following papers numbered I to _1 7_ read on this motion and cross motion for summary judgment; Notice of Motioni Order to Show Cause and supporting papers 1 - 11 ; Notice of Cross Motion and supporting papers 12· 13 ; Answering Affidavits and supporting papers 14 - 15 ; Replying Affidavits and supporting papers 16 - 17 ; Other _: it is, ORDERED that this motion by the defendant is granted to the extent that it seeks summary judgment dismissing so much of the plaintiffs complaint as alleges causes of action based upon Labor Law §§ 200 and 241 (6), and common law negligence, and is othcf\vise denied; and it is further ORDERED that this cross-motion by the plaintiff for partial summary judgment on the Issue of the defendant's liability pursuant to Labor Law § 240 (1) is denied. In this action, the plaintiff seeks to recover damages for personal inJuries which he allegedly sustamed on March 24, 2009, while performing work on behalf of non-party Cunningham Duct Cleaning Company ("Cunningham") at premises owned by the defendant. The plaintiff alleges that he susta1l1ed serious injuries when he fell off an eight foot ladder while he was III the process of cleaning an aIr conditioning duct. In his complaint, he alleges, in effect, that the defendant is liable for his Illjurres pursuant to Labor Law §§ 240, 241(6) and 200, and common 1mvnegligence. The defendaIlt now moves for summary judgment dismissmg the complaml. SpeCl.fically, the defendant contends: (l) the claims seeking recovery pursuaI1t to Labor Law §§ 240 (1) and 241 (6) must [* 2] Collymore v 1895 WW A Index No. 10-27975 flag'; No 2 be dismissed because the activity that the plal1ltiJ-rwas engaged in at the time ofh15 accident, to wIt, vacLlullllllg an air conditlOning duct, is not an enumerated activity entitling him to protection under such pnwislO11s: and (2) the claims seeking recovery pursuant to Labor Lay,..~ 200 and common law negllgcnce must be dismissed as the defendant did not exercise supervislOn or control ovcr the p];:llntJll's work and the record is devoid of any evidence ofa defect on the premises which contributed to the plall1tiffs accident and of\vhlch the defendant had actual or constructive knowledge. The plaintiff cross-moves for partial summary Judgment on the issue of the defendant's liability pursuant to Labor Law ~ 240 (1). The proponent of a summary judgment motion must make a prim(l ./hcie showing of entitlement to j udgmenl as a maHer of lav.,r,tendering sufficient evidence to demonstrate the absence of any matenal issues of fact (see Alvarez v Prospect lJosp., 68 NY2d 320, 508 NYS2d 923 [1986.1; Wil1egrad v New York Univ. illed. Or., 64 NY2d 851,487 NYS2d J 16 [1985]; Zuckerman v Ci~v of New York, 49 NY2d 557, 427 NYS2d 925 [1980]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Ilosp., supra; Wil1egrad v /\/ew York Un;v. Med. Ctr., supra). Once this showing has been made, the burden shifts to the party opposing the motion for summaIy 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 (see Alvarez v Prmpect Hosp" supra; Zuckerman v City of New York, supra). In support of the motion for summary judgment, the defendant submits, inter alia, the deposition testimony of the plaintiff, the deposition testimony of Daniel Byrnes, a copy of the proposal for the work to be performed by Cunningham for the defendant, the affidavit of Daniel Bymes, and the affidaVIt of MartJ1l Racanelh As IS relevant to th1S motion, the plaintiff testified that, on the date of the accIdent, he was working for Cunningham and that his job duties lIlcluded cleaning ducts and vents for air conditioning systems. He testified that these duct lines were present in the ceiling and that he was required to utilize a ladder J1lorder to vacuum and clean them. The plaintiff testified that when he alTlvcd at the subject premises on the date of the incident, his supervisor from Cunningham instructed him on the work to be performed and Its location. According to the plaintiff, no one other than his supervisor l11structed hm1 on the work to be perfoffiled. Immediately prior to the accident, the pla1l1tilT was instructed by his supervisor to go up the ladder that \vas present in the subject room and to vacuum the ducts in the ceiling. The ladder present 10 the r00111,an A-frame ladder that was approximately eight feet in height was fully opened. The ladder was placed on top of a cloth tarp. The ladder had been set up by his supervisor prior to the time he entered the room. He had not used the ladder prior, did not observe the subject ladder prior to the date of the accident, and dId not know who owned the subject ladder. The plaintiff did not check the ladder prior to climbing 1t and dId not look at the l100r where the ladder was placed. He went up the ladder, stood approximately three steps from the top, and used both hands to begl11 vacuuming out the duct. After approxlmately thirty seconds, the ladder gave way and fell out from under him. Prior to that time, he had not seen or felt anything indicating that the ladder was f~lllll1g. HIS hand remained stuck in the duct line when the ladder fell, and he, thereafter, fell to the ground. He did not look at the ladder after the accident to see If there was anything v·,raswrong \vith it. The plal11tifftestified that he was alone 111 the room at the time of his accident. [* 3] Collvmorc v 1895 \VWA Index Nu IO-27!J75 Pag~ No.3 DUring hiS deposition, Damel Byrnes testified that he was employ'eel as superintendent of Racanelli Construction, a construction company with an office located within the subject prcmisc:s. He testified that the subject premises also had other tenants. Byrnes did not know who owned the premises In which Racanelli's office \vas located and had notlll11gto do with the maintenance work performed at the subject premIses. Bymes testified that he had ncvcr hcard of the defendant. Byrnes first became aware of the plaintiff's accident shortly after its occurrence when the foreman from Cunn1l1gham notiflcd hllll He wcnt to the location ofthc accident and spoke to the plaintiff. He was told that the plallltlff fell off;] ladder \vhile cleaning air conditioning ducts. Byrnes testified that he dId not know who contracted with the plaintin~s employer for performance of work in the bmlding and never saw any written agrecment fi.w thc work which was being performed. He admitted that a written proposal agreement With \vhlcb he was presented during hi:; depOSition appeared to be a written agreement between RacanellJ and C:unnlngham for the performance of duct cleaning work at the subject premises, but tcsti fled that he had no knowledge of such agreement. Byrnes testifIed that he had never been involved with Cunningham pnor to the date of the accident and had never been involved with the hiring ofa duct cleaner at any properties owned by either Racanelli or any of Racanelli's corporate subsidiaries. In hiS affIdavit, Damel Byrnes avers that although he was not asked dunng his deposition, the plaintiff was not LlSl11g ladder owned by Racanelll Construction at the time of his accident. a In his affidavit, Martin Racanelli avers that he is Senior Partner of the defendant, and that the defendant 0\Vn5the subject premises. Racanelli avers that in February of2009, his company hlred Cunningham to clean the duct work at the premises. The contract for the \",ork, \vhich he SIgned and dated February 24,2009, was signed on behalf of Racanelli Construction, which was another one of the companies that he owned. RacanellJ avers that at no time did anyone from either the defendant or Racanelli Construction provide the plaintiff with a ladder to use in the perfOllllance of his job. lt was Racanelli's understanding that Cunningham was going to supply all of the tools and equlpment necessary to perform their work, including the ladders. The copy of the proposal of work to be performed by Cunningham at the subject prenllses, whIch was dated February 24, 2009, indicated that the scope of work was HVAC duct cleal1lng and samtizing, and that the total price of the work was $ 9,500.00. This proposal explained the cleanmg process, the c1eanmg equipmcnt that would be used and "decontammations." The branch of the defendant's Tnotion seeklllg summary Judgment dismissing the plamtiffs cause of action to recover damages pursuant to Labor Law ~ 240 (1) IS denied. Section 240 (l) of the Labor Law requires all contractors and property owners and their agents: "in the erection, demolitlOn, repairmg, aitenng, painting, cleaning or pointing of a building or structure [toJ fUTIllSh erect, or cause to be or fur1l1shcdor erected for the perfolllJance of such labor, scaffolding, hOists, stays, ladders, shngs, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to gIve proper protectlOTlto a person so employed." Notably, this section applJes only where an employee is engaged in the "erection, demolition, repairing, altering, painting, cleaning or pointing or a buildmg or structure" at the time of his injury (Labor Law ~ 240 [lJ; see E::.posito I' N. Y. Ci(11Indus. Del'. Agenq, 1 NY3d 526, 770 NYS2d 682 [2003]; Martinez v City of New York, 93 NY2d 322, 690 [* 4] Collymorc v 1895 WWA Index No. 10-27975 Page No.4 NYS2d 524 [1999 J; Enos v Weriatollc, Inc., 68 AD3d 713, 8l)() NYS2d 109 [2d Dept 2009]). and Sllll]l'naryjudgment dismissing a claim based 011 this section is appropriate where the cvidcncc suhnllttcd estahltshcs that the plaintiff was not engaged in an enumerated activity at time of injUty (see c_g. Bee/mCl' I' Ec/..-enlCorp., 3 NY3d 751, 788 NYS2d 637 [2004]; Esposito v N. Y. City Imlus. Dev. Agency. supra; Martinez v City 0/ New York, supra). The issue of whether any particular task ··falls within seclion 240 (I) must be determined on a casc-by-case baSIS, depending on the contexl oflile work'· (Pmts v Port Auth. o/N. Y. & N.J., ]00 NY2d 878, 883,768 NYS2d i 78 [2003]; see Fox I' H&M Hennes & Mauritz, L.P., 83 AD3d 889, 922 NYS2d 139 [2d Dert 2011]). 111 the 1l1stanlmatter. the evidence submitted by the defendant was insufficient to demonstrate a prima facie entitlement to summary judgment dismissing the caLIseof action seeking recoveJY pursuant to Labor Law § 240 (1) on the grounds that the plallltifr was not engaged in an enumerated activity at the timc of his injuJY. The evidence submitted demonstrates that the plaintiff was cleaning air conditioning ducts on behalF of non-party Cunningham at the time of his accident. "Cleaning" is an enumerated activity under Labor Law § 240 (1). In interpreting the tenn "cleaning," the Court of Appeals has held that it is not limited to cleaning that was "part ofa construction, demolition. or repair project" (BI'oggy l' Rockefeller Group, Inc., 8 NY3d 675, 680, 839 NYS2d 714 [2007]; see Daha,. v HOl/illid Latlder & Mfg. Co., 18 NY3d 521, 94] NYS2d 3] [2012]). As the defendant correctly contends, where a pl3intiff IS engaged In "routine maintenance" at the time of his injury, Labor Law § 240 (I) is inapplicable (see Selak v Clover MgI., IIlC., 83 AD3d 1585, 922 NYS2d 891 [4th Dept 2011]; Poulld v A. V.R. Realty Corp., 27\ AD2d 424, 706 NYS2d 886 [2d Dept 2000]; see e.g. Picaro v New York COllvellthm Or. Dev. Corp., 97 AD3d 5] ], _NYS2d_ [i Sl Dept 20 I2]; Gleason v Gottlieb, 35 AD3d 355, 826 NYS2d 633 [2d Dept 2006]; Detraglia v Blue Circle Cement Co., 7 AD3d 872, 776 NYS2d 342 [3d Dept 2004]), and courts have found that, under certain circumstances, cleaning activities may, in fact, constitute "routine maintenance" (see Soto l' J. Crew fnc., 95 AD3d 72], 945 NYS2d 255 []st Dept 20]2]; Anderson v Olympia & York Tower B Co., ]4 AD3d 520, 789 NYS2d 190 [2d Dept 2005]; Pound I' A. V.R. Realty COIp., supra; Noah 11 IBC Acquisition Corp., 262 AD2d ]037,692 NYS2d 283 [4th Dept 1999J; see also Dahar v Hollantl Lmlder & Mfg. Co., supra). However, the evidence submitted here fails to demonstrate, as a matter of law, that the work being perfonned by the plainti ff at the time of his accident was "routine maintenance" versus protected "cleaning" activity (see Swiderska v New York Univ., 10 NY3d 792, 856 NYS2d 533 [2008]; Parraguirre l' 27th 51. Holding, LLC, 71 AD3d 594, 898 NYS2d ] 14 [1st Dept 2010]; Weisman v Duane Reade, fIlC., 64 AD3d 643, 883 NYS2d 137 [2d Dept 2009]). Indeed, the record is devoid of any evidence in SUPP011 of such a finding (see c.g. Fox I' H&M Hennes & Mauritz, L.P., supra). In ligllt of the defendant'5 failure to make a primalacie showing of entitlement to summary Judgment dismissing so much of the plaintiffs complaint as alleges a cause of action pursuant to Labor Law 240 (]), the branch of the motion seeking dismissal of such claim is denied without consideratIon of the plainti fT's opposition papers. * The branch of the defendant's motion which secks summary judgment dismissing the plaintiffs caU$Cof action to recover pursuant to Labor Law § 24] (6) is granted. Liability under Labor Law § 241 (6) is limited to accidents where the work being pcrfonl1ed involves "constmctioll, exc<lvation or [* 5] Collymorl.: v 1895 WW 1\ Index No. 10·27975 Page No.5 IJl.::nolition work" (see Toefer" Long Islaml R.R., 4 NY3d 399, 795 NYS2d 511 [2005J; E!>jJositoI' N. Y. City Imlus. De)'. Agellq, silpra; Peluso I' 69 Tiema/1/l Owners Corp., 301 AD2d 360, 755 NYS2d 17 IIS1 Dcpl 2003]). Construction work is further defined by regulation as "all work of the tYVes pedon1ll.:d 111 lhe construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not sueh work is performed in proximate relatIon to a specifIc budding or other structure" (12 NYCRR 23-1.4 [b] [13]; see Mosher)' State, 80 NYld 286, 590 NYS2d 53 [1992], 1:.'1/0.'> v We,-/a(Olle, IIlC., slIpra; Peluso I' 69 TiemallnOwnersC(}rp . ¢ supra).Here.itis undisputed that the plaintl ff was noi working in a construction area at the time of his accident and that his accident did nOl arise from construction, excavation or demohtion work (see Enos v Werlatone, [nc., supra; Ellglish I' City of New York, 43 AD3d 81t, 844 NYS2d 320 [2d Dept 2007]; Gleason v Gottlieb, 35 AD3d 355, 826 NYS2d 633 [2d Dept 2006]). Accordingly, the defendant eSlabhshed. as a matter of law. that the plamnff does not have a viable clann under Labor Law § 241 (6) (see Hurtado I' Interstate Materials Corp., 56 AD3d 722, 868 NYS2d 129 [2d Dept 2008]; Bedl/eall v New York Hosp. Mell. err. of QlleenS, 43 AD3d 845, 841 NYS2d 689 [2d Ocpt 2007]; Anderson v Olympia & York Tower B Co., supra; Detrttglia v Bille Circle Cement Co., supra). In oppositIon, the plaintiff fai led to raise a triable issue of fact (see Hurtado v Interstate Materials Corp., s1Ipra). The branch of the defendant's motion which seeks summary judgment dismissmg so much of the plaintiffs complaint as alleges causes of action lo recover pursuant to Labor Law § 200 and common law negligence is also granted. Labor Law § 200 merely codifies the common-law duty imposed upon an U\vner or general contractor to provide construction site workers with a safe place to work (see Rizzuto v L.A. Wenger COfltr. Co., 91 N""Y2d 343, 352, 670 NYS2d 816 [1998]; Gasques v State o/New YOl'k, 59 AD3d 666, 873 NYS2d 717 [2d Dept 2009]; Dooley v Peerless Importers, 42 AD3d 199,837 NYS2d 720 [2d Dept 2007]). When a worker's injuries result from an unsafe or dangerous condition eXIsting at a work site, the liability ofa party will depend upon whether the party had control of the place where the injury OCCUlTed, whether it either created, or had actual or constructive notice of, the and dangerous condition (see Cook v Orchard Park Estates, IIlC., 73 AD3d 1263, 902 NYS2d 674 [3d Dep! lOIO]; Hal'sch I' City of New York, 78 AD3d 781,910 NYSld 540 [ld Depl lOI OJ;Martillez v City of New York, 73 A03d 993, 901 NYS2d 339 [2d Dept 1010]). When a worker's injuries result from the use of dangerous or defective equipment at the job site, or the method and manner of the work at issue. it must be shown that "the party to be charged had the authority to supervIse or control the performance of the work" (Ortega v Puccia. 57 AD3d 54, 61,866 NYS2d 323[2d Dcpt 2008J; see Mancuso )' MTA N. r. City Tr., 80 AD3d 577, 914 NYS2d 283 [2d Dept 2011]; La Veg/ia v St. Francis Hosp., 78 AD3d 1123,912 NYS2d 61 I [2d Dcpt 2010]; Orellana v Dutcher Ave. Bldrs., 58 AD3d 612, 871 NYS2d 352 [2d Dept 2009]; CllOWdhllJ'Yv Rodriguez, 57 AD3d 121, 867 NYS2d 123 [2d Dept 2008]; Ortega v Puccia, 57 AD3d 54, 61,866 NYS2d 323 [2d Oert 2008]; Dooley v Peerless ImpOJ·tel·s, supra). General supervisory authority at a work site for the purpose of overseemg the progress of the work and IllSpcCtlllgthe work product is insufficient to impose liability under the statute (see La Veglia v St. Fral/cis Jlmp., sllpm; Orellml(l )1 Dutcher Ave. BllIrs .. supra; Perri v Gilbert JO/111SOIl Enters .. 14 A D3d 681, 790 NYS2d 25 l2d Dept 2005]). The authority to revIew safety at the site, ensure compliance with safely regulations and contract specifications, and to stop work for observed safety violations ISalso insufficient to Impose liability (see Austill v Consolidated Edison, 79 AD3d 682. 913 NYS2d 684 [2d Dcpt 20101; CtlpolillO V Jlldi(lll Co1Jtr., 46 AD3d 733, 848 NYS2d 346 [2d Dep12007J; [* 6] ('allymore v I S95 WWA Im.lcx No. 10-17975 Pagc No.6 McLeod l' Corp01'l1fioll of Presiding Bishop of Church of Jesus Chrisf of Latter D(lY SfS., 41 A DJd 7(.I(J,8Y) NYS2d I(A [2d Dept2007]; Gar/ow v Chappaqull Cellt. School Vist., 38 AD3d 712, 832 N YS2d 627 [2d Dept 2007]; Perri v Gilbert Johnson Enters., supra). Rather, it must be demonstrated tIn! the defendant conrrolled thc manncr III which the work was perfon11cd (see La Veglia v St. Frands l/o!>jJ.,Sf/pm; ef Rizzuto l'L.A. Wenger Colltr. Co., supra; Dooley v Peerless Importers, supm; f1ughe.\'" Tis/lIIl(lIJ COllstr. Corp., 40 AD3d 305, 836 NYS2d 86 [1st Ocpt 2007]). lnthc instant matter, the eVldencc suhmitted establishes that the plaintifrs injuries aroso from the use of allegedly dangerous or defective equipment at the job site, to wit, a defective ladder. and thaI the defendant did not own, maintain or control thls allegedly detective equipment. Moreover, the eVidence submitted, lI1c1udingthe plaintiffs own testimony, demonstrates that the defendant did not direct. supervise or control the means or methods by which the plaintiff perfonned his work (see La Veglia v St. Francis Hosp., supra; Rivertl v 15 Broad St., 76 AD3d 621, 906 NYS2d 333 [2d Dept 20 IOJ; Dooley" Peerless Importers, supra; Blessillger" Estee Lauder Cos., 27l AD2d 343, 707 NYS2d 78 (1 st Dcpl 2000]; see e.g. Gleasoll v Gottlieb, 35 AD3d 355, 826 NYS2d 633 [2d Depl 2006]). Thus,lhe defendant established a pr;ma fade entitlement to summary judgment dismissing so much of the complaint as seeks to recover damages for a violation of Labor Law § 200 and common law negligence. In opposition, the pJailltiff failed to raise a triable issue of fact as to the defendant's liability on these claims. The cross-motion by the plaintiff for partial summary judgment on the issue of the dcfendant's liability pursuant to Labor Law § 240 (1) is denicd, without prejudice, as procedurally defectivc. The plaintifThas failed to submit a complete set of the pleadings In support of his cross-motion for summary judgment, as rcqll1rcd by CPLR 3212 (b). Accordingly, he is not entitled to summary judgment and denial of his cross-motion is required (see Ahem v Shepherd, 89 AD3d lO46, 933 NYS2d 597 [2d Dcp! 2011J; F;ber COllslIltaflts, Iflc. "Fiber Optek InterCOIlJ1ectC01p., 84 AD3d 1153,924 NYS2d 276 [2d Dopt 2011]; Selldor v eilervill, 51 A03d 1003,857 NYS2d 500 [2d OepI2008]). Datcd: September 10,2012 Joseph Fameti Acting Justice Supreme Court HOI1. FINAL D1SPosrTlON X NON-FINAL DISPOSITION
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