Berner v I & G 2005 Constr. Inc.

[*1] Berner v I & G 2005 Constr. Inc. 2013 NY Slip Op 52050(U) Decided on December 10, 2013 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2013
Supreme Court, Kings County

Bohdan Berner, Plaintiff,

against

I & G 2005 Construction Inc., 161 HELEN ASSOCIATES, LLC and YOFFI MALAMUD, Defendants. I & G 2005 CONSTRUCTION INC., Third-Party Plaintiff, ADMIRAL CONSTRUCTION MANAGEMENT, INC., and TRI-STATE AIR CONDITIONING & HEATING, INC., Third-Party Defendants.



4613/2010



Plaintiff Bohdan Berner was represented by Paul Hayt, Esq. of Gary B. Pillersdorf & Associates, P.C. Defendant/third-party plaintiff I & G 2005 Construction, Inc. was represented by Matthew J. Rodriguez, Esq. of Kral Clerkin Redmond Ryan Perry & Van Etten, LLP. Defendants 161 Helen Associates, LLC and Yoffi Malamud were represented by Anthony Bianchi, Esq. of The Law Offices of Tobias & Kuhn.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers submitted on defendants 161 Helen Associates, LLC's and Yoffi Malamud's motion for an order, pursuant to CPLR 3212, granting it summary judgment dismissal of Plaintiff's summons and complaint and dismissing all negligence claims and cross claims as mandated by the substantive law of the State of New Jersey or, in the alternative, granting them common law indemnification from co-defendant I & G 2005 Construction Inc.; and on defendant/third-party plaintiff I & G 2005 Construction Inc.'s motion for an order, pursuant to CPLR 3212, granting it summary dismissal of Plaintiff's negligence claims, and all cross claims, based upon the substantive law of the State of New Jersey: [*2]

-Notice of Motion for Summary Judgment (Cal. No. 8)

Affirmation in Support

Exhibits A-K

-Notice of Motion (Cal. No. 9)

Affirmation in Support

Exhibits A-J

-Affirmation in Opposition

Exhibits A-E

-Reply Affirmation

Exhibit A

-Reply Affirmation

Plaintiff Bohdan Berner was represented by Paul Hayt, Esq. of Gary B. Pillersdorf & Associates, P.C. Defendant/third-party plaintiff I & G 2005 Construction, Inc. was represented by Matthew J. Rodriguez, Esq. of Kral Clerkin Redmond Ryan Perry & Van Etten, LLP. Defendants 161 Helen Associates, LLC and Yoffi Malamud were represented by Anthony Bianchi, Esq. of The Law Offices of Tobias & Kuhn.

According to the Verified Complaint, on January 5, 2010, plaintiff Bohdan Berner allegedly sustained personal injuries "when he was caused to fall from the roof by reason of the negligence of the Defendants." (See Verified Complaint, ¶ 69.) According to the Supplemental Verified Bill of Particulars, "[t]he occurrence complained of took place within the interior of the premises located at 161 Helen Street, South Plainfield, NJ" (see Supplemental Verified Bill of Particulars, ¶ 2) while Plaintiff was in the process of installing a central air conditioning system (see id. at ¶4), and Plaintiff's injuries were caused by "falling off a ladder that was not sufficient to protect him from the hazards associated with working at an elevated height" (see id. at ¶6).

Defendants 161 Helen Associates, LLC ("161 Helen") and Yoffi Malamud allegedly owned the subject property, and defendant/third-party plaintiff I & G 2005 Construction Inc. ("I & G") was the general contractor. Plaintiff was employed by a nonparty subcontractor, Tristate HVACR, LLC. The Verified Complaint alleges common law negligence and violation of Labor Law §§ 200, 240(1), and 241(6).

By Decision and Order dated June 21, 2011, this Court, among other things: (1) granted the branches of I & G's motion and 161 Helen's and Malamud's cross-motion seeking summary dismissal of Plaintiff's Labor Law causes of action; (2) denied with leave to renew after appropriate disclosure the branch of 161 Helen's and Malamud's cross-motion for summary dismissal of Plaintiff's common law negligence cause of action; and (3) denied the remaining branches of both 161 Helen's and Malamud's motion, and I & G's cross-motion.

Now, in separate motions, defendants 161 Helen and Malamud and defendant/third-party plaintiff I & G move for an order, pursuant to CPLR 3212, dismissing the common law negligence claims in the Verified Complaint. [*3]

"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly-discovered evidence or other sufficient cause". (Vinar v Litman, 110 AD3d 867, 868 [2d Dept 2013][quoting Sutter v Wakeferm Food Corp., 69 AD3d 844, 844 (2d Dept 2010)].) "[S]uccessive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment." (Id. at 869 [internal quotation marks and citations omitted].) Even deposition testimony obtained after a summary judgment motion has been decided is not necessarily "newly discovered evidence" to warrant a successive summary judgment motion. (See e.g. Vinar v Litman, 110 AD3d at 869.)

Here, movants fail to make any showing of newly-discovered evidence or other sufficient cause for their respective successive summary judgment motions. Nor do movants designate their respective motions as seeking "renewal" of their prior motions. (See CPLR 2221(e) [requiring that a motion for leave to renew "be identified specifically as such" and "shall be based upon facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination", and "shall contain reasonable justification for the failure to present such facts on the prior motion"].)

Even so, this Court denied with leave to renew after appropriate disclosure the branch of 161 Helen's and Malamud's prior cross-motion for summary dismissal of Plaintiff's common law negligence cause of action. As such, the Court will only consider the branch of 161 Helen's and Malamud's motion for summary dismissal of Plaintiff's common law negligence cause of action as against them, and the remaining branches of 161 Helen's and Malamud's motion and I & G's cross-motion are DENIED as successive motions.

In their motion, defendants 161 Helen and Malamud again contend that "Plaintiff's negligence causes of action should be dismissed pursuant to the substantive law of New Jersey." "Under New Jersey law, a landowner has no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work, provided that the landowner does not retain control over the means and methods of the execution of the project." (Marchevka v DeBartola Capital Partnership, 3 AD3d 477, 478 [2d Dept 2004]; see also Muhammad v New Jersey Tr., 176 NJ 185, 198, 821 A2d 1148, 1156 [2003]; Bozza v Burgener, 280 NJ Super 583, 586, 656 A2d 49, 51 [App Div 1995].)

By the 2011 Decision and Order, this Court determined that, since the accident occurred in New Jersey, the substantive law of New Jersey is applicable. (See Marchevka v DeBartola Capital Partnership, 3 AD3d at 478; see also Padula v Lilarn Properties Corp., 84 NY2d 519, 522-23 [1994]; Castrillon v Erm-Northeast, Inc., 242 AD2d 654, 654 [2d Dept 1997]; Harzynski v ITT Hartford Ins. Co., 227 AD2d 449, 449 [2d Dept 1996]; Huston v Hayden Building Maintenance Corp., 205 AD2d 68, 69-70 [2d Dept 1994].) On these motions, it is not contested that the substantive law of New Jersey applies. Indeed, where New Jersey law is generally applicable to the accident, that State's independent contractor rule has been applied by New York [*4]courts. (See Marchevka v DeBartola Capital Partnership, 3 AD3d at 478).

In support of their motion, 161 Helen and Malamud proffer the deposition testimony of plaintiff Bohdan Berner, to the effect that his work at the site was directed and supervised by employees of defendant I & G. Movants also proffer the deposition testimony of Izhak Alkslasi, the president of I & G, to the effect that 161 Helen and Malamud did not supervise or direct any of the work, and did not supply any of the equipment for the contract work. Movants also proffer the deposition testimony of Yoffi Malamud, to the effect that he did not supervise or direct the work at the site, and that he only visited the site to check the progress of the work. As a result, 161 Helen and Malamud demonstrate prima facie that they did not retain control over the means and methods of the execution of the project such that they had a duty to protect Plaintiff. (Marchevka v DeBartola Capital Partnership, 3 AD3d at 478; see also Muhammad v New Jersey Tr., 176 NJ at 198, 821 A2d at 1156; Bozza v Burgener, 280 NJ Super at 586, 656 A2d at 51.)

In opposition, Plaintiff does not point to any evidence demonstrating an issue of fact as to whether 161 Helen or Malamud retained any control over the means and methods of the execution of the project. Rather, Plaintiff cites to Majestic Realty Associates, Inc. v Toti Contracting Co., Inc. (30 NJ 425, 153 A2d 321 [1959]) and Mavrikidis v Petullo (153 NJ 117, 707 A2d 977 [1998]), and their progeny, to support his contention that summary judgment must be denied because 161 Helen and Malamud fail to establish prima facie that they were not negligent in hiring an incompetent contractor.

In Mavrikidis v Petullo, the New Jersey Supreme Court explained that there are three exceptions "to the general rule of nonliability of principals/contractees for the negligence of their independent contractors", and that one of those exceptions is where the principal/contractee "engages an incompetent contractor." (See id. at 133.) To hold a principal/contractee negligent under this exception, "it is necessary to show both (1) that the contractor was incompetent or unskilled to perform the job for which it was hired, and (2) that the principal knew or had reason to know of the contractor's incompetence." (See id. at 137.) In addition to those two prongs, to prevail on the incompetent contractor exception, a plaintiff must also show that "the harm arose out of" the incompetence. (See Puckrein v ATI Transport, Inc., 186 NJ 563, 576, 897 A2d 1034, 1042 [2006].)

Plaintiff makes no showing that, under New Jersey law, on summary judgment a principal/contractee bears the burden of disproving all of the exceptions to the general rule of nonliability of principals/contractees for the negligence of their independent contractors. In any event, on this motion for summary judgment, the Court will apply New York law on the evidentiary burdens in accordance with the rule that "matters of procedure are governed by the law of the forum" (see Goldman v Rio, 104 AD3d 729, 730 [2d Dept 2013] [internal quotation marks and citation omitted].)

"The prima facie showing which a defendant must make on a motion for summary [*5]judgment is governed by the allegations of liability made by the plaintiff in the pleadings." (Baker v Buckpitt, 99 AD3d 1097, 1099 [3d Dept 2012]; see Gordon v Pitney Bowes Management Services, Inc., 94 AD3d 813, 814 [2d Dept 2012]; Henriquez v Inserra Supermarkets, Inc., 89 AD3d 899, 901 [2d Dept 2011].) On summary judgment, a defendant is not "required to affirmatively negate the possible applicability" of exceptions to a general rule of nonliability unless plaintiff has alleged liability based upon the applicability of such exception. (See Baker v Buckpitt, 99 AD3d at 1097).

Here, Plaintiff does not allege in either the Verified Complaint or any of the bills of particulars any facts suggesting a theory that defendant 161 Helen or Malamud were negligent in hiring an incompetent or unskilled contractor. As such, on their motion for summary judgment, 161 Helen and Malamud were not required to affirmatively negate that theory of liability. Rather, it was sufficient to merely demonstrate prima facie that the general rule of nonliability applied (see e.g. Baker v Buckpitt, 99 AD3d at 1099; Gordon v Pitney Bowes Management Services, Inc., 94 AD3d at 814; Henriquez v Inserra Supermarkets, Inc., 89 AD3d at 901), i.e., that it hired a general contractor to perform work on its property, and that it did not retain control over the means and methods of the execution of the project (see Marchevka v DeBartola Capital Partnership, 3 AD3d at 478). As such, defendants 161 Helen and Malamud sufficiently demonstrate their prima facie entitlement to summary judgment, shifting the burden to Plaintiffs.

Even assuming that Plaintiff in opposition may now raise an issue of fact by alleging a theory of negligence based upon the hiring of an incompetent or unskilled contractor, Plaintiff fails to raise any issue as to the conditions to imposing such liability. Plaintiff points to Izhak Alkslasi's deposition testimony that he had construction experience in Israel, but never took any courses in construction since entering the United States; and that I & G is not a "licensed" general contractor. Plaintiff also points to defendant Malamud's deposition testimony that he did not have experience in hiring a commercial contractor to conduct commercial property renovation, and points out that the contract between 161 Helen and I & G did not include any provision for job site safety. Even so, Plaintiff fails to relate any of the proffered evidence to the conditions necessary to establish a claim for negligently hiring an incompetent or unskilled contractor, i.e., that I & G was "incompetent or unskilled to perform the job for which it was hired", that 161 Helen or Malamud "knew or had reason to know of the contractor's incompetence" (see Mavrikidis v Petullo, 153 NJ at 137), and that "the harm that resulted arose out of that incompetence" (see Puckrein v ATI Transport, Inc., 186 NJ at 576.) As such, Plaintiff fails to raise a triable issue of fact in opposition to 161 Helen's and Malamud's motion.

Accordingly, the branch of 161 Helen Associates, LLC's and Yoffi Malamud's motion for summary dismissal of Plaintiff's common law negligence causes of action as against them is granted, and the remaining branch of their motion is denied. Defendant/third-party plaintiff I & G 2005 Construction, Inc.'s motion is denied in its entirety.

[*6]December 10, 2013____________________

Jack M. Battaglia

Justice, Supreme Court