Thakurdyal v 341 Scholes St. LLC

[*1] Thakurdyal v 341 Scholes St. LLC 2007 NY Slip Op 51536(U) [16 Misc 3d 1121(A)] Decided on August 7, 2007 Supreme Court, Kings County Partnow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2007
Supreme Court, Kings County

Seecharran Thakurdyal, Plaintiff(s),

against

341 Scholes Street LLC, Defendant(s).



49426/03



The plaintiff was represented by:

Ross, Legan, Rosenbarb Zelen & Flaks LLP

450 7th Avenue

NY, NY 10123

By: Michael Flaks

The defendant was represented by:

Wilson, Elser, Moskjowitz, Edelman, Dicker, LLP

150 East 42nd Street

NY, NY 10017

By: Yashana McAuley-Parrish

Mark I. Partnow, J.

Upon the foregoing papers, defendant 341 Scholes Street LLC (Scholes Street) moves for an order: (1) pursuant to CPLR 317 and 5015(a)(1), opening and vacating the default judgment entered in favor of plaintiff Seecharran Thakurdyal, rendered against it on October 29, 2004 and entered on May 23, 2005; (2) pursuant to CPLR 5240, granting a protective order staying execution of the judgment; and (3) allowing defendant to interpose an answer in the form annexed to its moving papers.

Facts and Procedural Background

Plaintiff commenced this action on July 8, 2003 by service of a copy of the summons and complaint on the Secretary of State pursuant to Limited Liability Company Law § 303, seeking to recover damages for personal injuries allegedly sustained on June 2, 2003 when he fell off a ladder while performing construction work at premises owned by defendant and located at 225 Starr Street in Brooklyn. At the time of the accident, plaintiff was employed by Hammer "N" Nails, a company hired by defendant to perform demolition and renovation work at the premises. In his complaint, plaintiff alleges that he fell because the ladder was unsafe, defective and not fit for its intended use and that defendant violated Labor Law §§ 200, 240 and 241; 12 NYCRR §§ 23 1.21 and 23-1.5; and 29 CFR §§ 1926.1053 and 1910.26.[FN1]

On September 15, 2004, plaintiff moved for a default judgment against defendant based upon its failure to answer or appear in the action. The motion was granted on [*2]October 29, 2004 and the default judgment order was entered on November 16, 2004. On November 28, 2004, plaintiff served and filed his note of issue and the matter was set down for an assessment of damages. On April 12, 2005, the inquest was held and a judgment in the amount of $350,000, plus interest and costs, for a total amount of $354,737.50, was rendered against defendant.

The Parties' Contentions

In support of its motion, defendant alleges, in an affidavit submitted by Mayer Friedman, its principal, that it did not receive a copy of the summons and complaint, the default judgment or the judgment after inquest. Friedman further alleges that he promptly reported the accident to his insurance company. He also alleges that his written contract with Hammer "N" Nails required the contractor to procure insurance listing defendant as an additional insured with respect to the work performed. Friedman avers that defendant did not supply the ladder from which plaintiff fell, nor did defendant supervise the work. After the accident occurred, Friedman was not aware that a lawsuit had been commenced, since he never received any documents in connection with the action. Friedman further alleges that the court file does not contain copies of any affidavits of service. Accordingly, defendant was not aware of the judgment entered against it until December 2006, when Friedman attempted to refinance a property and was advised by the bank's attorney that a default judgment had been entered. The order to show cause seeking to vacate the default judgment was signed shortly thereafter, on January 18, 2007.

In opposition to the motion, plaintiff argues that defendant cannot show that he has a meritorious defense to the action, a necessary prerequisite to the vacatur of the judgment of default. More specifically, plaintiff argues that Labor Law § 240(1) imposes strict liability on an owner of a building where an unsecured ladder falls and causes a worker engaged in construction work to be injured. Plaintiff annexes a copy of the transcript from the inquest, at which plaintiff testified that at the time of the accident, he was handed a piece of sheet rock and when he stepped onto the fourth step of an A-frame ladder, he fell and the ladder fell with him. The fall broke plaintiff's leg and caused the bone to protrude; the injury required surgery and substantial rehabilitation. Plaintiff thus concludes that this testimony establishes liability pursuant to Labor Law § 240(1).

Counsel for plaintiff further avers that he served fifteen separate documents on defendant by mailing them to Scholes Street at both 543 Bedford Avenue and 225 Starr Street, the addresses on file with the Secretary of State and listed the on the New York City property tax records; defendant offers no explanation with regard to why none of these mailings was received. Counsel also argues that the motion to vacate the default was not made within one year, as is required pursuant to CPLR 5015(a)(1).

In a further affirmation, plaintiff argues that a defendant who is requesting that a default judgment be vacated must establish a lack of prejudice to plaintiff. In this regard, plaintiff's counsel alleges that in January 2007, plaintiff was forced to relocate to Trinidad "based upon his immigration attorney's advise and that he would be unable to return to the United States in the near future as he was not a legal resident or a citizen of [*3]the United States." In a separate affidavit, plaintiff's wife alleges that until she becomes a citizen, which is expected to occur in 2009, plaintiff will not be able to return to this country. Plaintiff thus concludes that he will be prejudiced if this court vacates the default, since had defendant not defaulted, plaintiff would have been present in the country to litigate.

In reply, Friedman offers an affidavit in which he alleges that Scholes Street did not receive any of the mailings sent by plaintiff because they were not properly addressed, i.e., 543 Bedford Avenue is an incomplete address in that it did not include the post master box number. Further, 225 Starr Street was never a valid mailing address, since that was the address where plaintiff was injured and no mail could be delivered until recently, because during renovation, the property was vacant. Defendant further contends that it has a meritorious defense in that issues of fact exist with regard to the proximate cause of the accident. Defendant also argues that pursuant to Labor Law §§ 200 and 241(6), plaintiff's comparative negligence is an issue that can be raised by defendant in his defense; there is no showing that defendant exercised the control that is necessary for a finding of liability pursuant to Labor Law § 200; and plaintiff has failed to establish a violation of Labor Law § 241(6).

CPLR 317 and 5015

The Law

CPLR 317, which pertains to a defense by a person to whom a summons was not personally delivered, provides, in pertinent part, that:

"A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense."

CPLR 5015, relief from judgment or order, provides that:

"(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

"1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry . . .

"4. lack of jurisdiction to render the judgment or order."

It is well established that a defendant seeking to vacate a default pursuant to CPLR 5015 must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action (see e.g. Eugene Di Lorenzo v Dutton Lumber Co., 67 NY2d 138, 141 [1986]; Sime v Ludhar, 37 AD3d 817 [2007]; Dorrer v [*4]Berry, 37 AD3d 519 [2007]). While the failure to file a change of address with the Secretary of State generally is not a reasonable excuse under CPLR 5015(a)(1), it does not constitute a per se barrier to vacatur pursuant to CPLR 317 (see e.g. Cantarelli v Della Cella Co., 40 AD3d 445 [2007]; J & S Constr. v 321 Bowery, 39 AD3d 391, 391 [2007]). Hence, "[a] defendant moving for vacatur of a default under CPLR 317 need not establish a reasonable excuse for the delay in answering or appearing" (Franklin v 172 Aububon, 32 AD3d 454, 455 [2006], citing Eugene Di Lorenzo, 67 NY2d at 141-142; Trujillo v ATA Hous., 281 AD2d 538, 539 [2006]).

Further, "[t]he decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor"(Koyenov v Twin-D Transp., 33 AD3d 967, 968 [2006], quoting Calderon v 163 Ocean Tenants, 27 AD3d 410 [2006], quoting MacMarty v Scheller, 201 AD2d 706, 707 [1994]; accord Neuman v Zurich, 36 AD3d 601, 601-612 [2007]). In disposing of defendant's motion, the court must also be cognizant of the generally accepted principal that public policy favors the resolution of cases on their merits (see e.g. Greene v Mullen, 39 AD3d 469 [2007], Cooney v Cambridge Mgt. & Realty, 35 AD3d 522 [2006]; Harcztark v Drive Variety, 21 AD3d 876, 877 [2005]).

Discussion

Herein, defendant explains that it did not receive a copy of the summons and complaint because the address on file with the Secretary of State was incomplete and the other address provided was not one where mail could be delivered. Hence, defendant offers a reasonable explanation with regard to why it did not receive notice of the action. In so holding, the court further notes that the affidavit of service filed with the court and annexed to the moving papers indicates that a copy of the summons and complaint was served upon the Secretary of State; plaintiff annexes no proof that such service was made by the Secretary of State or that defendant received any of the other mailings (cf. DeLisca v Courtesy Transp., 6 AD3d 646, 647 [2004] [motion to vacate judgment of default was properly denied where plaintiff produced evidence indicating that a copy of the summons and complaint had been sent by certified mail to the corporate defendant and that the certified mail receipt had been signed by someone at that address, although there was no evidence in the record to show that the corporate defendant actually received process from the Secretary of State]; Board of Managers of the Landings at Patchogue Condo. v 263 River Ave., 243 AD2d 668, 669 [1997] [defendant's motion to vacate its default should have been denied where plaintiff submitted a letter from the Secretary of State's office confirming that the latter had sent process by certified mail to the address designated by defendant and appended to the letter was a certified mail receipt, evidencing that said process had been signed for by someone at the defendant's address]).

Further, inasmuch as defendant is a business entity that was insured against incidents such as the one at issue herein, by both its own insurer and as an additional insured on the policy held by plaintiff's employer, and plaintiff does not refute defendant's [*5]claim that it gave timely notice of the accident to its insurer, defendant's assertion that it had no reason to ignore the pendency of the action is persuasive. In addition, the court notes that since plaintiff was injured while working at 225 Starr Street, he should have known that the premises were vacant, so that no mail would be delivered to that address. Finally, although plaintiff relies upon the application submitted to the Department of Buildings to obtain the permit to do renovation work at the site, and that application indicates that Michel Even was the applicant and that Abraham Lebovits was the filing representation, no attempt was made to advise either of the pendency of lawsuit against defendant (see e.g. Tselikman v Marvin Court, 33 AD3d 908, 909 [2006] [the court providently exercised its discretion in granting defendants' motion to vacate the order entered upon their failure to appear or answer where, inter alia, plaintiffs were aware of the defendants' actual business address]; Hon-Kuen Lo v Gong Park Realty, 16 AD3d 553 [2005] [the court erred in denying defendant's motion to vacate its default pursuant to CPLR 317 where there was no evidence that the defendant was on notice of the fact that an old address was on file with the Secretary of State and the record showed that plaintiff was aware of the defendant's actual place of business]; Grosso v MTO Assocs. Ltd. Partnership, 12 AD3d 402, 403 [2004] [the court erred in denying defendant's motion to vacate the default judgment pursuant to CPLR 317 where there was no evidence that defendant was on notice of the fact that an old address was on file with the Secretary of State and the record showed that plaintiff was familiar with defendant's actual place of business]).

Also significant is the fact that plaintiff's only attempt to enforce the judgment since it was entered on April 15, 2005 was to serve a subpoena, dated August 22, 2006, upon Independence Community Bank, as the mortgagee; the bank ultimately informed plaintiff that defendant was not the payor on the mortgage. Hence, there is no evidentiary basis presented that would allow the court to conclude that defendant was aware of the pendency of the lawsuit or that it intentionally chose not to defend (cf. Volt Viewtech v Bomzer, ___ AD3d ___, 2007 NY Slip Op 5568, 1 [2007] [the corporate defendant's motion to vacate its default was properly denied where testimony established that the principal and sole shareholder was served with the summons and complaint and it was therefore aware of the action in time to defend]; Al Fayed v Barak, 39 AD3d 371 [2007], rearg denied 2007 NY Slip Op 71528U [2007] [defendant was not entitled to have her default vacated where the evidence established that she deliberately evaded service of process and actually received the mailed summons, but rejected it]; J & S Constr., 39 AD3d 391[corporate defendant's motion to vacate its default was properly denied where it was established that at least three years passed during which the corporation's address on file with the Secretary of State was not updated, and the corporation's principal, while denying that he received the default order, acknowledged that it had been mailed to his home address]).Accordingly, the court finds defendant's claim that it was not aware of the action or of the entry of judgment until an attempt to refinance other property was made to be credible. In this regard, it is also noted that defendant's motion to vacate its [*6]default was timely made within one year after it obtained knowledge of entry of the judgment and within five years of entry of the judgment of default as is required pursuant to CPLR 317 (see generally Franklin, 32 AD3d at 455). The court therefore determines that defendant's default should be vacated, on the condition that defendant establishes that it has a meritorious defense to the action. This holding is consistent with the accepted policy that favors resolution of cases on the merits.

Implicit in this holding is the court's rejection of plaintiff's claim that he will be prejudiced by being forced to litigate the action on the merits. It is generally accepted that " [t]he fact that the defendants will have to adjudicate the action on the merits does not warrant a finding of prejudice sufficient to deprive the plaintiff of his day in court'" (Kay Found. v S & F Towing Serv., 31 AD3d 499, 501 [2006], quoting Lagana v French, 145 AD2d 541, 542 [1998]). Plaintiff's claim that he should not be required to litigate this action on the merits because he was advised by his immigration attorney to relocate to Trinidad because he was not legally in the United States and cannot legally return is found to be unpersuasive, since this court will not permit plaintiff to gain advantage by his violation of the country's immigration laws.

The court now turns to the issue of whether defendant establishes the existence of a meritorious defense.

Labor Law § 200

The Law

Labor Law § 200, which codifies the common-law duty of an owner or employer to provide employees with a safe place to work, applies to owners and contractors who exercise control or supervision over the work being performed, or who have either created a dangerous condition or had actual or constructive notice of such condition (see e.g. Widawski v 217 Elizabeth St., 40 AD3d 483 [2007]; Seepersaud v City of New York, 38 AD3d 753 [2007]; DeBlase v Herbert Constr. Co., 5 AD3d 624 [2003]).

Discussion

Herein, defendant alleges that it retained plaintiff's employer to renovate the premises, that it did not exercise control or supervision over the work and that it did not have knowledge of any alleged dangerous condition. Plaintiff does not refute these contentions. Hence, defendant raises a meritorious defense with regard to plaintiff's claim of liability pursuant to Labor Law § 200 (see generally Reinoso v Ornstein Layton Mgmt., 19 AD3d 678, 679 [2005], lv dismissed 5 NY3d 849 [2005]).

Labor Law § 241

The Law

Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (see e.g. Comes v New York State Elec. & Gas, 82 NY2d 876, 878 [1993]; Reinoso, 19 AD3d at 679). Such liability may be imposed even in the absence of control or supervision of the work site (see e.g. Rizzuto v Wenger Constr. Co., 91 NY2d 343, 348 [1998]; Ferrero v Best Modular Homes, 33 AD3d 847 [2006], lv dismissed 8 NY3d 841 [2007]). In order to [*7]establish liability under Labor Law § 241(6), a plaintiff must demonstrate that defendant's violation of a specific rule or regulation was a proximate cause of the accident (see e.g. Mercado v TPT Brooklyn Assoc., 38 AD3d 732 [2007]; Portillo v Roby Anne Develop., 32 AD3d 421 [2006], Handlovic v Bedford Park Develop., 25 AD3d 653 [2006], lv denied 7 NY3d 701 [2006]).

In his complaint, plaintiff alleges violations of 12 NYCRR 23-1.21 and 29 CFR 1926.1053 and 1910.26, which provide requirements for the construction, maintenance and use of ladders. 12 NYCRR 23-1.5(a) sets forth an employer's general responsibility for health and safety in the workplace.

Discussion

While it is has been held that a violation of 12 NYCRR 23-1.21 can be a predicate for liability pursuant to Labor Law § 241(6) (see e.g. Glielmi v Toys "R" Us, 62 NY2d 664 [1984]; Jicheng Liu v Sanford Tower Condominium, 35 AD3d 378 [2006]; Ferrero, 33 AD3d 847), as can 29 CFR §§ 1926.1053 and 1910.26, which provisions set forth similar requirements (see generally Symonds v 1114 Ave. of the Americas, 7 Misc 3d 1008A [2005]), plaintiff fails to allege or particularize any such claimed violation. Further, defendant's alleged violation of 12 NYCRR 23-1.5 does not provide a basis for liability under Labor Law § 241(6), as such Industrial Code provision merely sets forth a general safety standard (see e.g. Carty v Port Auth., 32 AD3d 732 [2006], appeal denied 2007 NY LEXIS 1535 [2007]; Meslin v New York Post, 30 AD3d 309 [2006], rearg denied 2006 NY App Div LEXIS 14874 [2006]; Cun-En Lin v Holy Family Monuments, 18 AD3d 800, 802 [2005]).

Hence, defendant similarly establishes a meritorious defense with regard to plaintiff's claim that defendant violated Labor Law § 241(6).[FN2]

Labor Law § 240

The Law

"Labor Law § 240(1) requires contractors and owners to provide workers with appropriate safety devices to protect against the special hazards that arise when the work site either is itself elevated, or is positioned below the level at which materials or loads must be positioned or secured" (Handlovic, 25 AD3d 653, citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). " To establish entitlement to judgment on liability under Labor Law § 240(1), "[a] worker injured by a fall from an elevated worksite must . . . prove that the absence of or defect in a safety device was [a] proximate cause of his or her injuries"'" (Tronolone v Praxair, 22 AD3d 1031 [2005], quoting Baum v Ciminelli-Cowper Co., 300 AD2d 1028, 1029 [2002], quoting Felker v Corning, 90 NY2d 219, 224 [1997]; accord [*8]Danielewicz v Klewin Bldg. Co., 39 AD3d 1194 [2007] [in order to prevail upon a cause of action premised upon Labor Law § 240(1) a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his injuries]).

" Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240(1)'" (Montalvo v Petrocelli Constr., 8 AD3d 173, 174 [2004], quoting Kijak v 330 Madison Ave., 251 AD2d 152, 153 [1998], citing Schultze v 585 W. 214th St. Owners, 228 AD2d 381 [1996]).

As is also relevant herein, Labor Law § 240(1):

"creates a liability that is strict, or absolute, in two senses: the duty it imposes is nondelegable, and thus contractors and owners are liable under the statute whether or not they supervise or control the work; and where an accident is caused by a violation of the statute, the plaintiff's own negligence does not furnish a defense. It is still necessary, however, for the plaintiff to show that the statute was violated and that the violation proximately caused his injury."

(Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). Hence, contributory negligence is not a defense (Blake v Neighborhood Hous., 1 NY3d 280 [2003]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 563 [1993]; Moniuszko v Chatham Green, 24 AD3d 638 [2005]). It is equally well settled, however, that "[w]here a plaintiff's actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240(1) [does] not attach'" (Robinson v East Med. Ctr., 6 NY3d 550, 554 [2006], citing Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).

Discussion

The accident report filed with the Workers' Compensation Board states that "employee was standing on a ladder, positioned the ladder wrong and fell." In his complaint, plaintiff alleges that he was injured because the ladder was "unsafe, defective and not fit for its intended use and was not being held in place at the time of the accident." The affidavit submitted in support of his application for the entry of a default judgment states that plaintiff fell while installing sheet rock and repeats the allegations made in the complaint. At his inquest, plaintiff testified that he fell when he was handed a piece of sheet rock.

In view of these conflicting accounts of how the accident occurred, along with plaintiff's failure to particularize his claim that the ladder was unsafe or that it was not properly secured, the court finds that issues of fact exist with regard to whether a violation of Labor Law § 240(1) was the proximate cause of plaintiff's injury (see e.g. Antenucci v Three Dogs, ___ AD3d ___, 2007 NY Slip Op 5312, 1 [2007] [the conflict between plaintiff's deposition testimony and defendants' submissions, including an accident report that stated "climbing down [an] extension ladder, missed a wrung & then fell off" precluded a finding, as a matter of law, whether defendants were liable under Labor Law § 240(1) for providing plaintiff with a defective or malfunctioning ladder]; [*9]Bonilla v State of New York, 40 AD3d 673 [2007] [even though it was undisputed that there were no safety cables in the claimant's work area to which he could have affixed his harness and lanyard, evidence was proffered that the lanyard could have been affixed to a standing object, which would have constituted a proper safety measure; if claimant was provided with appropriate safety equipment but failed to properly use it, and the accident occurred as a result, his conduct would be the sole proximate cause of the accident and the defendant could not be held liable for a violation]; Delahaye v Saint Anns School, 40 AD3d 679 [2007] [where the record revealed inconsistencies as to how the accident occurred, raising a question of fact as to the credibility of plaintiff and whether plaintiff's own conduct was the sole proximate cause of the accident, it could not be concluded, as a matter of law, that defendant's alleged failure to provide plaintiff with proper protection proximately caused his injuries]; Destefano v City of New York, 39 AD3d 581, 582-583 [2007] [questions of fact regarding the manner in which plaintiff used the subject ladder precluded an award of summary judgment on the cause of action for a violation of Labor Law § 240(1)]; Buckley v Jones/GMO, 38 AD3d 461, 463 [2007] [defendant would not be subject to statutory liability if, as the incident report indicated, plaintiff simply lost his footing while climbing a properly erected, nondefective ladder that did not malfunction]; Negron v City of New York, 22 AD3d 546, 547 [2005] [the sole proximate cause of the accident was the failure on the part of plaintiff to have himself tied to the lanyard]).

Accordingly, defendant has raised a meritorious defense with regard to plaintiff's claim pursuant to Labor Law § 240(1).

Conclusion

Defendant's motion seeking an order vacating the default entered against it is granted and the answer, in the form annexed to its moving papers, shall be deemed served, nunc pro tunc. Inasmuch as the default judgment is vacated, that branch of defendant's motion seeking a stay of enforcement of the judgment is denied as moot.

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The court assumes that although plaintiff's complaint refers to volume 20 of the Code of Federal Rules, he intended to cite volume 29, which provisions refer to ladders.

Footnote 2: The court notes that inasmuch as plaintiff does not argue that he possesses meritorious claims pursuant to Labor Law §§ 200 or 241 in opposition to defendant's motion, he has tacitly conceded that he could not succeed on either claim.