Sharoh v Hourihan

[*1] Sharoh v Hourihan 2007 NY Slip Op 52611(U) [24 Misc 3d 1227(A)] Decided on June 12, 2007 Supreme Court, Dutchess County Brands, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2007
Supreme Court, Dutchess County

Bryon Sharoh and MARGARET SHAROH, Plaintiffs,

against

Timothy A. Hourihan, IRENE T. HOURIHAN, and CREATIVE HOMES, INC., Defendants.



86/06



Goldstein & Metzger, LLP

Paul J. Goldstein, Esq.

40 Garden Street

Poughkeepsie NY 12601

Friedman, Hirschen & Miller, LLP

Carolyn B. George, Esq.

100 Great Oaks Blvd., Suite 124

PO Box 38279

Albany NY 12203

Cook, Netter, Cloonan, Kurtz & Murphy, P.C.

Eric M. Kurtz, Esq.

85 Main Street, PO Box 3939

Kingston NY 12402

James V. Brands, J.

This is a personal injury action wherein plaintiff, Bryon Sharoh, alleges a cause of action for common law negligence, and violation of Labor Law Sections 200, 240 (1), and 241 (6). The complaint alleges a derivative action by Mr. Sharoh's wife, Margaret Sharoh.

The alleged accident took place at 83 Crestwood Road, Red Hook, New York during a construction project for which the Hourihans were the general contractors. Creative Homes, Inc. was added as an additional defendant alleging that Creative Homes, Inc. was the general contractor for such work. Defendants Hourihan raise the affirmative defenses of comparative negligence, limited liability pursuant to CPLR Article 16, and CPLR Section 4545, asserting a collateral source of payment, worker's compensation. Hourihans' answer serves a cross-claim against Creative Homes, Inc.

Creative Homes asserts the affirmative defense of comparative negligence on the part of plaintiff, CPLR Article 16 limitation of liability, and lack of personal jurisdiction. The Hourihans claim that they are not liable under the Labor Law because it does not apply to them as the owners of a one or two family dwelling where the accident occurred, and further, that they are not liable under Labor Law Section 200, the codification of common law negligence, since they did not supervise or control the work, nor did they have actual or constructive notice of an unsafe condition which allegedly caused the plaintiff's accident.

At the time of the accident, Mr. Sharoh was employed by Chelsea Modular Homes. The action which is the subject of this suit, occurred on a Saturday when he was working for himself [*2]as a carpenter with an assistant that he brought, and whom he paid, Fernando Roldan. The plaintiff positioned a ladder on top of scaffolding which he testified at his deposition was his idea (plaintiff's deposition pages 36 to 37, annexed as Exhibit H to the moving papers). He states the accident occurred when he started to climb up the 8 foot step ladder on top of the scaffolding while holding a piece of trim in one hand and a pencil in the other, when the ladder started to move away from the wall. Chelsea Modular Homes, Mr. Sharoh's regular employer, is a corporation of which Mr. Hourihan calls himself "the owner". Mr. Hourihan testified that he worked by himself the whole day and did not use the scaffold and did not instruct Mr. Sharoh as to how to use the scaffold. He states he may have told plaintiff were to put the molding, but he was not the general contractor for the job. (Hourihan deposition pages 34 to 40 annexed as Exhibit I to the moving papers).

Mr. Roldan was also an employee of Chelsea Modular Homes. He testified that he, the plaintiff and Mr. Hourihan moved the scaffold prior to the accident to the accident location. Neither he nor Mr. Hourihan, nor anyone witnessed the accident. He states that Mr. Hourihan did not direct him or the plaintiff as to how to set up the scaffold or step ladder or how to do their work that day.

Defendants move to dismiss claiming lack of merit since Mr. Hourihan as the owner did not supervise or control the work nor did he have actual or constructive notice of an unsafe condition causing the accident. It is argued that clearly the defendant Irene Hourihan is not involved in the construction, was not present on the day of the accident and as to her, there is no liability under Labor Law Section 200. Further, it is argued that Chelsea Modular Homes, Inc. is not party to this action, did not contract to the work being done by plaintiff, that the owner of the property was the individuals, Timothy and Irene Hourihan, against whom the complaint should be dismissed. Mr. Roldan testified that when they moved the scaffolding, he locked the wheels on his end of the scaffolding, and he believed that Mr. Hourihan locked the wheels on his side. (Roldan deposition pages 19 to 20 annexed as Exhibit J to the moving papers). Mr. Hourihan does not recall having moved the scaffolding.

Plaintiffs' counsel asserts as follows. Mr. Hourihan, is, and was at the time of the accident, the President and sole shareholder of Chelsea Modular Homes, the corporation from which the modular home was purchased for the subject property. He is also, and was, the sole shareholder of Creative Homes, Inc., that sells Chelsea Modular Homes to retail customers, and, at times, sets them up. Mr. Hourihan obtained a building permit in the name of Creative Homes as builder and purchased a modular home from Chelsea. Mr. Hourihan, acting as general contractor, hired the subcontractors. He hired carpenters to put in the hardwood floors, workers to install tile, and hired the plaintiff, Bryon Sharoh to help him with the trim work that he himself was doing. Mr. Hourihan owned and maintained the subject scaffold. Plaintiff testified that Mr. Hourihan supplied the crown molding and instructed plaintiff and his helper, Mr. Roldan, as to where to place the molding. Plaintiff alleges that at the time of his accident, Mr. Roldan was working with Mr. Hourihan. He states that immediately before the accident Mr. Roldan and Mr. Hourihan moved the scaffolding with plaintiff on it into place with Mr. Hourihan deciding where to move it so that plaintiff could do his work. [*3]

Plaintiff argues that while the Labor Law provides that the owners of one and two family dwellings who contract for but do not direct or control the work are exempt, in this case, Mr. Hourihan supplied the scaffold, moved the scaffold, told plaintiff where to install the molding, and either did not lock the wheels, or provided a defective scaffold, and therefore, did exercise supervision and/or control over the work. Further, it is argued that since no one was residing at the premises at the time of the accident, it is not a "dwelling" as contemplated by the statute. Finally, it is argued that Mr. Hourihan's supervision of the work cannot be said to be that of the standard homeowner who hires a contractor since Mr. Hourihan not only furnished the scaffold and the ladder and moved them, but was working with plaintiff and plaintiff's helper, and further that he was plaintiff's "boss" Monday through Friday. He argues that the house was not occupied, but was at the time of the accident, a construction site, and thus not a "dwelling".

Plaintiffs' engineer opines based upon a reasonable degree of engineering certainty that Mr. Hourihan failed to furnish plaintiff with a scaffold, ladder, or other device sufficient to give proper protection, resulting in the scaffold and ladder being caused "to kick out" which was a substantial factor in causing plaintiff's injury.

In opposition to the cross-motion, Mr. Hourihan through his counsel argues that he was not the general contractor; that there was other heavier scaffolding that plaintiff could have used; that plaintiff testified at his deposition that no one told him how to do the work installing and cutting the trim; that he knew how to do it; and that it was his idea to put the step ladder on top of the scaffolding. Defendants' argue that at best plaintiff established general supervisory authority which is insufficient to impose liability under Labor Law Section 200. Further, it is argued that a dwelling does not have to be presently occupied by its owner to benefit from the statutory exemption. Mr. Hourihan avers that he did not exercise supervision over the plaintiff and Mr. Roldan that day, and that he worked separately, by himself, putting up chair railing type molding. Further, he does not recall moving the scaffolding. He states there was other scaffolding at the premises which was higher, and could have been dismantled and moved to a different location if the plaintiff wanted to use it.

On the basis of the foregoing, it is hereby

ORDERED that defendants' motion for an order granting summary judgment dismissing the complaint as against Irene Hourihan is granted. There is no indication that she had any involvement whatsoever, nor any allegation of such, with respect to the supervision or control of the premises and the work being done at the time of the accident. It is further

ORDERED that defendants' motion for an order granting summary judgment dismissing the complaint as against Timothy Hourihan is denied. It is further

ORDERED that plaintiffs' cross-motion for summary judgment against the defendant Timothy A. Hourihan is denied. [*4]

There are questions of fact as to Mr. Hourihan's involvement with the plaintiff on the day of the accident, whether he did provide, and actually moved, the scaffolding from which Mr. Sharoh fell, whether he supervised and/or controlled Mr. Sharoh's work and whether he was the general contractor. It is further

ORDERED that counsel shall appear for a pre-trial conference on June 27, 2007 at 9:15 a.m.

The foregoing constitutes the decision and order of this court.

Dated:June 12, 2007

Poughkeepsie, New York

ENTER:

_____________________________

JAMES V. BRANDS, J.S.C.

Goldstein & Metzger, LLP

Paul J. Goldstein, Esq.

40 Garden Street

Poughkeepsie NY 12601

Friedman, Hirschen & Miller, LLP

Carolyn B. George, Esq.

100 Great Oaks Blvd., Suite 124

PO Box 38279

Albany NY 12203

Cook, Netter, Cloonan, Kurtz & Murphy, P.C.

Eric M. Kurtz, Esq.

85 Main Street, PO Box 3939

Kingston NY 12402