Figueroa v DirecTV, Inc.
Annotate this CaseDecided on March 10, 2006
Supreme Court, Erie County
Carlos Figueroa, Plaintiff
against
DirecTV, Inc., UAMS COMMUNICATIONS, and MORTON MUCHOW, Defendants.
2003/1018
LOTEMPIO & BROWN, P.C.
Attorneys for Plaintiff
By Harry G. Modeas, Jr., Esq.
HURWITZ & FINE
Attorneys for Defendant DirecTV, Inc.
By Jonathan S. Hickey, Esq.
KENNEY, SHELTON, LIPTAK & NOWAK, LLP
Attorneys for Defendant UAMS Communications
By Michael C. O'Neill, Esq.
LAW OFFICES OF MARY BJORK
Attorneys for Defendant Muchow
By Paul Richardson, Esq., and Joseph G. Goergen II, Esq.
John P. Lane, J.
In this action, plaintiff Carlos Figueroa seeks to recover damages for injuries he allegedly sustained on December 19, 2002 while installing satellite television equipment on the roof of defendant Morton Muchow's home. Plaintiff, who alleges his injuries were the result of violations of Labor Law §§ 200, 240(1) and 241(6) as well as common law negligence on the part of defendants DirecTV, Inc., UAMS Communications and Muchow, moves for partial summary judgment against them under Labor Law § 240(1). In his answer, Muchow alleges the statutory homeowner exemption as an affirmative defense to plaintiff's Labor Law claims. Defendant UAMS Communications cross-moves for summary judgment dismissing the complaint and all cross claims. Defendant DirecTV opposes plaintiff's motion and UAMS's cross motion to the extent it seeks dismissal of cross claims, and cross-moves for summary judgment, contractual indemnification by UAMS, and damages for breach of contract against UAMS for failure to provide insurance for DirecTV's benefit.
Plaintiff testified that he worked as an independent contractor for UAMS installing satellite equipment for customers of DirecTV. UAMS scheduled the installations, provided the satellite equipment to be installed and paid him weekly for the work he performed. David Koransky, the owner of UAMS, testified that DirecTV played no role in the scheduling of installations or the selection of plaintiff to perform the work.
Early on the day of the accident, plaintiff reported to the UAMS's office where he received his installation assignments for the day and the equipment to be installed. Plaintiff had no contact with DirecTV about the work he was to perform that day. According to Koransky, he assigned Eric Brennanbaker, one of his employees, to work with plaintiff on the day of the accident because of prevailing winter conditions. Plaintiff testified that they went to another customer's home first, but he decided not to do that installation as the two-storey roof of that home was covered with snow.
When he arrived at defendant Muchow's ranch-style home, plaintiff talked to him about the location of the satellite dish, while Brennanbaker unloaded a ladder and other equipment from the truck. Plaintiff testified that he erected the ladder against a gutter and rested the bottom on the driveway, which he knew to be uneven. He placed the ladder some distance to the left of where he was going to install the dish, but did not tie it down. Plaintiff climbed the ladder with his drill and the dish and then walked along the peak of the roof of the house about 30 feet to where he intended to install the satellite equipment. After he installed the equipment and erected the dish, plaintiff walked back along the peak of the roof, which he described as a little icy and snow covered. As plaintiff turned to walk down the roof to the ladder, his foot slipped and he slid down the roof and fell to the ground, knocking the ladder down. Brennanbacker was inside the house at the time, and there were no witnesses to the accident. Plaintiff was not provided with any devices or equipment that would have properly protected him from falling off the roof.
Plaintiff's motion is based in part on the deposition of defendant Muchow, who testified that the property where the accident occurred consisted of the house occupied by him and his wife and [*2]three barns, two of which were used for storage. The third barn contained a workshop where he did woodwork and refinished antiques and furniture with the help of his wife. He devoted about 25 hours a week to this work. Once a year they held a three-day barn sale with the help of friends. His earnings from the sale held in 2002 amounted to about $5,000. He recalled having seen an ad for DirecTV's satellite service in a newspaper, but did not remember how he arranged for it to be installed as a replacement for the existing service for three TV sets, two in the house and one in the workshop. He let plaintiff decide where on the roof of the house the satellite would be erected.
DirecTV and UAMS contend that plaintiff's actions were the sole proximate cause of the unwitnessed accident and, therefore, his motion for partial summary judgment should be denied. Where the injured worker's actions are the sole proximate cause of his injuries, he is barred from recovery under Labor Law § 240(1) (see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, rearg denied 92 NY2d 875 [1998}; Busch v Erie County Indus. Dev. Agency, ___ AD3d ___, 2006 NY Slip Op 00879 [4th Dept, Feb. 3, 2006]). However, plaintiff has established as a matter of law that the absence of any adequate safety device protecting him from falling off the roof of Muchow's house was a proximate cause of his injuries (see Felkner v Corning, Inc., 90 NY2d 219 [1997]; Aton v Syracuse Univ., 24 AD3d 1315 [2005]; Brummer v New Opportunities Community Hous. Dev. Corp., 19 AD3d 1080 [2005]; Collins v Shager, ___ AD3d ___, 2006 NY Slip Op 00799 [4th Dept, Feb. 3, 2006]). Having done so, plaintiff cannot be solely to blame for his injuries (see Blake; Ewing v ADF Constr. Corp., 16 AD3d 1085 [2005]). The fact that the accident was unwitnessed does not provide a basis to defeat plaintiff's motion for summary judgment as there is no bona fide issue of fact concerning how it happened (see Ewing). Even though plaintiff was an independent contractor, he was "employed" within the meaning of Labor Law § 240 (1) (see Knauer v Anderson, 299 AD2d 824 [2002]; Nowak v Kiefer, 256 AD2d 1129 [1998], lv denied 93 NY2d 887; rearg dismissed 93 NY2d 1000 [1999]).
Muchow's testimony submitted by plaintiff in support of his motion reveals at the least a triable issue of fact concerning the application of the homeowner exemption (see Bartoo v Buell, 87 NY2d 362 [1996]; Cannon v Putnam, 76 NY2d 644 [1990]; Hosler v N. Eagle Bevs., 15 AD3d 925 [2005]; Schultz v Iwachiw, 284 AD2d 980, lv dismissed in part/denied in part 97 NY2d 625 [2001]). Therefore, plaintiff failed to meet his initial burden of tendering sufficient evidence to eliminate any material issue of fact on Muchow's claim to that exemption (see Rienzo v La Greco, 11 AD3d 1038 [2004]). Plaintiff's motion for partial summary judgment against Muchow is denied.Plaintiff's moving papers include an excerpt of Michael Owens' testimony. Owens, director of sales and distribution for DirecTV, testified that it maintained no facility in Western New York. UAMS acted as a sales agent for DirecTV's satellite service and was authorized to solicit subscribers and arrange for the installation of necessary equipment. DirecTV did not deal directly with consumers. Its service was marketed to consumers through sales agents only. Installation was performed by either the sales agent's employees or was subcontracted to independent installers. DirecTV did not supervise or control the installers, but paid UAMS a flat fee for the work.
DirecTV has established its lack of involvement in the project plaintiff was working on when he was injured (see Bateman v Walbridge Aldinger Co., 299 AD2d 834 [2002], lv denied 100 NY2d 502 [2003]). It was not an owner of the property or a contractor or agent involved in the installation of the satellite equipment nor did it control, supervise or direct the work performed by plaintiff. Plaintiff's motion for partial summary judgment against Direct TV is denied and Direct TV's cross [*3]motion for summary judgment dismissing the complaint is granted.
Arrangements for the installation of the satellite equipment were made between UAMS and plaintiff. The equipment to be installed was delivered to plaintiff by UAMS. UAMS's status as a contractor under Labor Law § 240(1) is dependent upon whether it had authority to chose who did the work at Muchow's home (see Williams v Dover Home Improvement, Inc., 276 AD2d 626 [2000]). Since UAMS had the authority to select plaintiff as the person to do the work, it had the authority to control his work, even if it did not actually do so (id.; see also Futo v Brescia Bldg. Co., 302 AD2d 813 [2003]). UAMS selected plaintiff to perform the work at Muchow's home and its owner exercised authority to control the work by assigning one of his employees to work with plaintiff. Thus, plaintiff has established entitlement to partial summary judgment against UAMS and UAMS's cross motion to dismiss the complaint is denied.
The agreement between DirecTV and UAMS provides that each party will defend and indemnify the other against claims such as that made by plaintiff and resulting damages, costs and other liabilities arising out of its negligence or other wrongful conduct. DirecTV's papers include a certificate of insurance issued to it under a policy held by UAMS (DirecTV Exhibit N) that appears to satisfy UAMS obligation under the contract to provide insurance coverage for DirecTV's benefit. Although DirecTV maintains that it tendered its defense to UAMS, there has been no showing as to how and when that was accomplished.DirecTV's cross motion against UAMS for contractual indemnification of its losses arising from UAMS's violation of Labor Law § 240 (1), negligence or other wrongful conduct related to this action is granted and its cross motion for breach of contract is denied. DirecTV's cross motion to dismiss UAMS's cross claims is granted.
SO ORDERED, without costs to any party.
Dated:Buffalo, New York
March 10, 2006
__________________________________
John P. Lane
Justice of Supreme Court
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.
