Casilari v Condon

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Casilari v Condon 2018 NY Slip Op 33381(U) December 11, 2018 Supreme Court, Kings County Docket Number: 514206/2015 Judge: Carl J. Landicino Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. ·""'· .. ~"""~:t'lffS-, '!"""":>".:c~--.,.......--~- [* 1] --- ... ..,.. ·---,:'""ll!ft...-.<- - - --, ------- INDEX NO. 514206/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 12/31/2018 At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 t:> Adams Street, Brooklyn, New York, on the 11th day of December, 2018. '1.. , __ PRESENT: HON. CARL J. LANDICINO, Justice. -----------------------------------X .'· JOSE CASILARI and MAGALI CASILARI, Index No.:514206/2015 Plaintiff, DECISION AND ORDER - against - Motion Sequence #3 ZACHARY F. CONDON, Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed ...... :....................................... . 112 Opposing Affidavits (Affirmations) ........................................... .. 3 Reply Affidavits (Affirmations) .................................................. . 4 Upon the foregoing papers, and after oral argument, the Court finds as follows: This is an action to recover damages for personal injuries allegedly sustained by the Plaintiff Jose Casilari (hereinafter "Plaintiff Casilari") on October 5, 2013, while he was working at a·property owned by Defendant Zachary F. Condon (hereinafter "the Defendant"). The property was located at 22 Sharon Street, Brooklyn, N.Y. (hereinafter "the Property"). 1 In their complaint, the Plaintiffs allege that on the day of the accident Plaintiff Casilari was working as a painter at the Property when he fell through an exposed and unprotected hole in a wooden deck, to the floor ten feet below. The Plaintiffs allege in their complaint that the Defendant was negligent in his actions. What is more, the Plaintiffs allege that the Defendant failed to comply with the provisions of Sections 200, 240 and 241(6) of the Labor Law of the State of New York. . ;. ' - Plaintiff Magali Casilari, the spouse of Plaintiff Jose Casilari, makes a claim for loss of services (Plaintiffs' Fifth Cause of Action). ' . 1 ) 1 of 6 ·) .. f91MR . [* 2] NYSCEF DOC. NO. 58 INDEX NO. 514206/2015 RECEIVED NYSCEF: 12/31/2018 The Defendant now moves (motion sequence #3) for an order pursuant to CPLR 3212 -· granting summary judgment in his favor and dismissing all causes of action as against him. Specifically, the Defendant argues that the Defendant is entitled to summary judgment pursuant to the "homeowner's exemption" to Labor Law §§240(1) and 241(6). What is more, the Defendant argues that Plaintiffs' causes of action pursuant to Labor Law §200 and under common law negligence must be dismissed as the Plaintiffs' work was supervised by his employer, non party Elvis Jonathan Quinn, and the Defendant had no direction or control over the Plaintiffs work. In opposition to the Defendant's motion, the Plaintiffs argue that the motion should be denied as the Defendant did not meet his prima facie burden. First, the Plaintiffs contend that the Defendant is not entitled to a homeowners' exemption under Labor Law §200. Second, the Plaintiffs argue that the Defendant improperly moves for summary judgment on the Plaintiffs Labor Law §200 and common law negligence claims. Plaintiffs contend that the Defendant solely relies upon the "means and method" legal standard rather than the "defective premises" condition legal standard in support of his motion. Specifically, the Plaintiffs contend that for the Defendant to establish his primafacie burden, as it relates to Labor Law §200 and common law negligence, the Defendant would have to show that he lacked actual and/or constructive notice of the alleged defect or hazard. Finally, the Plaintiffs argue that, in any event, there is an. issue of fact created by "-. the affidavit of non-party Orly Amendano, Plaintiff Jose Casilari's co-worker, relating to whether the Defendant had actual or constructive knowledge of the condition at issue. As an initial matter, the Plaintiffs do not otherwise oppose the Defendant's motion as it relates to the dismissal of the Plaintiffs' Labor Law §§240(1) and 241(6) claims. Accordingly, the remainder of this Decision and Order will relate to the Plaintiffs' Labor Law §200 and common 2 2 of 6 : '~... F 'fyiV?P [* 3] - .• ~ 1 • NYSCEF DOC. NO. 58 INDEX NO. 514206/2015 RECEIVED NYSCEF:. 12/31/2018 law negligence claims. The Defendant's motion is granted as it relates to Labor Law §§240(1) and 241(6) claims. The Plaintiffs did not oppose the motion in relation to these claims. See Allan v. DHL Exp. (USA), Inc., 99 A.D.3d 828, 832, 952 N.Y.S.2d 275, 280 [2nd Dept, 2012]. "Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact."' Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See SheppardMobley v. King, 10 AD3d 70, 74 [2nd Dept, 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501N.E.2d572 [1986]; Winegradv. New York Univ. Med Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]. Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [2nd Dept, 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2nd Dept, 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2nd Dept, 1994]. 3 ·-;,1 3 of 6 ., ,.,, '>'I [* 4] *4ift. INDEX NO. 514206/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 12/31/2018 Labor Law§ 200 Labor Law §200 "is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site." Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343, 352, 693 N.E.2d 1068, 1073 [1998]. "Cases involving Labor Law §200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and those involving the manner in which the work is performed." Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323, 329 [2"d Dept, 2008]. "Where a plaintiffs injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, an owner may be held liable in commonlaw negligence and under Labor Law § 200 if it had control over the work site and either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident." Azad v. 270 5th Realty Corp., 46 A.D.3d 728, 730, 848 N.Y.S.2d 688, 690-91 [2"d Dept, 2007]. What is more, "[u]nlike Labor Law§§ 240 and 241, § 200 does not contain any single- and two-family homeowners' exemption." Ortega v. Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323, 329 [2"ct Dept, 2008]. Turning to the merits of the Defendant's motion in relation to the Plaintiffs' Labor Law §200 claim, the Court finds that the Defendant, as the owner of the building at issue, has not provided sufficient evidence to establish his prima facie burden in relation to the dismissal of Plaintiffs' claim. The Defendants argue that they cannot be held liable for the Plaintiff Casilari's injuries pursuant to Labor Law §200, given that they did not supervise or control the work of the Plaintiff. However, the Defendant fails to address Plaintiffs claim in relation to an alleged dangerous condition. "Where, as here, a plaintiff contends that an accident occurred because a dangerous condition existed on the premises where the work was being undertaken, an owner 4 . . ._,..~- .. ' 4 of 6 [* 5] INDEX NO. 514206/2015 RECEIVED NYSCEF: 12/31/2018 NYSCEF DOC. NO. 58 . . .I \ moving for summary judgment dismissing causes of action alleging common-law negligence and a violation of Labor Law § 200 must make 'a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of [it].'" Doto v. Astoria Energy II, LLC, 129 A.D.3d 660, 663, 11N.Y.S.3d201, 205 [2nd Dept, 2015], quoting Costa v. Sterling Equip., Inc., 123 A.D.3d 649, 997 N.Y.S.2d 704 [2nd Dept, 2014]. In the instant proceeding, the Defendant argues that he did not have supervisory authority over the Plaintiff but he does not present any evidence that he did not have actual or constructive notice of the condition at issue. Therefore, the Defendant has failed to meet his prima facie burden. See Rodriguez v. BCRE 230 Riverdale, LLC, 91 A.D.3d 933, 935, 938 N.Y.S.2d 146, 149 [2nd Dept, 2012]. Even assuming, arguendo, that the Defendant had established that he did not have actual or constructive notice of the condition at issue, the affidavit of Orly Amendano, who was also employed at the Premises by non-party Elvis Jonathan Quinn, is sufficient to create an issue of fact as to whether the Defendant had actual or constructive notic~ of the condition at issue. In his affidavit, Mr. Amendano states that "I complained to my employer, Mr. Quinn, and to the owner, Mr. Condon, about the dangerous condition of the opening in the deck during the one month period before Mr. Casilari's accident. (See Plaintiffs' Affirmation in Opposition, Exhibit A, Paragraph 8). 2 This testimony is sufficient to raise a triable issue of fact as to whether the Defendant had constructive notice of a dangerous premises condition. As a result the instant motion is denied. Ventimiglia v. Thatch, Ripley & Co., LLC, 96 A.D.3d 1043, 1047, 947 N.Y.S.2d 566, 571 [2nd Dept, 2012]. 2 The Defendant argues in reply that Orly Amendano's Affidavit should be precluded in that Amendano was not identified as a witness in Plaintiffs' response to Defendant's witness demand. However, Mr. Amendano's name was mentioned by Plaintiff Casilaro a number of · times during Plaintiff Casilaro's deposition (November 7, 2016). Further, the affidavit does not directly contradict Plaintiff Casilaro's testimony. For these reasons, the Defendant is not prejudiced by its use. 5 o~ 6 .!...,;; r--::-~-""','""1""'41-"-::;'""'""'.,...'""'......,.,..:_...,..,...,,,...... ~...,.,..._~ [* 6] . ··---- · - - - .- .~. - I i-*tf INDEX NO. 514206/2015 NYSCEF D,0€. NO.- 58 ... .. . ~ ... • ; • RECEIVED NYSCEF: 12/31/2018 \,· I Based upon the foregoing, it is hereby Ordered that: Defendant's motion (motion sequence #3) is granted solely to the extent that the Plaintiffs cause of action based upon Labor Law §240(1) and Labor Law §241(6) are dismissed. The Plaintiffs remaining claims shall continue. The foregoing constitutes the Decision and Ord Enter: KINGS COUNTY CLERK'S orn :E , ustice Supreme Court \ -., . , . ... :;. 6 6 of 6 '· ,• ·*~--~·-~~---

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