Huerta v Three Star Constr. Co., Inc.

[*1] Huerta v Three Star Constr. Co., Inc. 2007 NY Slip Op 52612(U) [24 Misc 3d 1228(A)] Decided on December 27, 2007 Supreme Court, Kings County Dabiri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2007
Supreme Court, Kings County

Luis Huerta, Plaintiff,

against

Three Star Construction Co., Inc., Defendant.



7348/06

Gloria Dabiri, J.

Plaintiff Luis Huerta (plaintiff) moves for summary judgment, pursuant to CPLR 3212, on his Labor Law § 240(1) cause of action. Defendant Three Star Construction Co., Inc. (defendant or Three Star) cross-moves for summary judgment dismissing the complaint and for an order granting it costs, disbursements and reasonable attorney's fees.

On November 25, 2005 while performing construction work for Kang Won Construction at the home of Kwang Jin Choi (Mr. Choi), located at 147-24 34th Avenue in Flushing, New York, the ladder upon which plaintiff was standing slipped, causing him to fall from a height of at least nine feet and to sustain injuries. At the time, Kang Won Construction, plaintiff's employer, was constructing a three bedroom extension to Mr. Choi's home. Plaintiff claims that Three Star was the general contractor for the project because its president, Mohammed Hussain, filed notarized "Work Permit Application[s] and Cost Affidavit[s]" with the New York City Department of Buildings on September 16, 2005, listing Three Star as the general contractor and because Three Star was involved in construction of the extension.

Plaintiff commenced the instant action with the filing of a summons and complaint alleging violations of Labor Law §§ 240(1), 241(6) and 200/common-law negligence. After completion of discovery the parties brought the motions presently before the court.

In support of the motion for summary judgment on his Labor Law § 240(1) cause of action, plaintiff argues, among other things, that defendant violated Labor Law § 240(1) by failing to provide proper safety devices or to provide employees [the means] to secure the ladder. Plaintiff contends that absent some evidence demonstrating that the unsecured ladder was not a substantial factor leading to his injuries, he is entitled to summary judgment as a matter of law.

Defendant cross-moves for summary judgment dismissing the complaint. In support of [*2]this branch of its motion defendant argues that it is not liable under Labor Law §§ 240(1), 241 (6) or 200 since it was not a contractor at the site, did not perform any work there and was not plaintiff's employer. Defendant relies upon the deposition testimony of Mr. Hussain, Mr. He Gin Lee (Mr. Gin Lee), the architect on the project, Mr. Choi, the homeowner, and Mr. Kyung Chul Lee (Mr. Chul Lee), the principal of Kang Won Construction.

In reply, plaintiff argues that defendant is estopped from denying that it served as the general contractor for the project and that defendant's signing of the permit documents raises issues of fact as to whether it was the general contractor. In its own reply, defendant reiterates that the testimony of parties involved demonstrates that it was not the general contractor. Mr. Hussain testified that while Three Star was in the construction business and hired subcontractors to perform painting, plastering and renovation, Three Star did not have its own employees and that, when it hired a subcontractor, it would supervise the construction work by visiting the work site weekly or monthly to determine the progress of the work and whether it was being done properly and safely.

According to Hussain, in September 2005, he gave Mr. Gin Lee and Mr. Choi an estimate for the construction of the extension. Mr. Gin Lee told Hussain that he wanted to give Hussain the job but that before signing a contract he wanted to see if Hussain had insurance "[and that] everything [was] correct." Mr. Hussain understood that if he obtained the permits he would be awarded the contract for the job. On or about September 16, 2005, Mr. Choi paid Mr. Hussain $4,500 for two work permit applications, in which Hussain identified himself and Three Star as the "general contractor." One application was for construction of the extension, including plumbing and electrical work, and the other was for the erection of a fence. Mr. Hussain testified that he signed the applications in order to get the job and that the permits were required before any work could take place. Mr. Hussain submitted cost affidavits with the work permit applications, which also identified Three Star as the general contractor.

On or about September 23, 2005, Mr. Hussain learned that the permits had been approved and that Mr. Choi had given the job to someone else. Therefore, following plaintiff accident when the hospital called Mr. Hussain, told him that Mr. Huerta from his "company" had had an accident and asked for insurance information, Mr. Hussain denied knowing Mr. Huerta and could not provide the hospital with any information.

Mr. Hussain testified that he filed a permit application renewal on February 6, 2006 in which he indicated that he was the general contractor, but that he did this because Mr. Gin Lee told him that if he refused, he, Mr. Gin Lee, and the plumber would lose their licenses.

Mr. Hussain testified that the plumber, with whom he worked, performed no work for Mr. Choi. However this plumber did perform a "sign [off] and inspection" of the premises after the job was completed. Mr. Hussain maintains that Mr. Gin Lee cheated him out of the job, that this was the first time he had completed an application for a permit without getting the job, that Three Star performed no work on the project and that he never worked with Mr. Chul Lee or with Kang [*3]Won Construction.

Mr. Choi, the homeowner, testified that in August, 2005 he spoke with Mr. Chul Lee, owner of Kang Won Construction, about building the extension, that as directed by Mr. Lee he paid Mr. Hussain $4,500 for construction and plumbing permits, and that he thereafter contracted with Mr. Chul Lee to build the extension. Mr. Choi testified that M, Chul Lee and four or five of his workmen were at the site on a daily basis, that Kang Won Construction did all the "overall construction work," that he paid Kang Won Construction for its services and that he did not hire anyone to perform work at the extension.

Mr. Choi further testified that he paid Three Star $1,000 for a plumber's sign-off inspection, pursuant to an invoice dated April 5, 2006, and that Mr. Hussain visited his home at least once during the construction.

Mr. Chul Lee, owner of Kang Won construction, testified that before the project began he met with Mr. Choi, the architect, and Mr. Hussain because he did not have the necessary insurance to perform the work. Mr. Choi paid Three Star $4,500 for the insurance and plumbing permits and Mr. Chul Lee used the permits and insurance Mr. Hussain had obtained to build the extension. Mr. Chul Lee testified that he hired plaintiff Luis Huerta as a temporary helper to work on Mr. Choi's home and that his company performed all the construction on the extension and was paid for his work by Mr. Choi. Plaintiff Luis Huerta testified that he met Mr. Chul Lee while working for another construction company owned by a friend of Mr. Chul Lee. According to Huerta, he began working for Mr. Chul Lee in 2002.

Lastly, Mr. Gin Lee, the architect, testified that Mr. Choi retained him to design an extension to his home and that Hussain applied for the work permit because he was the general contractor. However, he also testified that in designing the extension he did not work with or speak to the general contractor, did not know the name of the general contractor, and had no independent knowledge of the work permit applications or if Three Star served as the general contractor.[FN1]

Mr. Gin Lee testified that Mr. Hussain told him that Three Star had filed insurance documentation with the Department of Buildings, but also said that he found out about the insurance documentation from Mr Choi. He added that he had "many exchanges with Mr. Hussain once in awhile in connection with the construction." Mr. Gin Lee explained that "in the course of the construction, if we ... encountered some problems, it's possible that [Mr. Hussain] asked me some questions." He then said he did not recall speaking to Mr. Hussain but then stated that he had "a feeling that I spoke to him... about general matters.". He then testified that all the conversations he had with Mr. Hussain were "in relation to the renovation at the Choi's house," but that some of the questions Mr. Hussain asked were "general questions." [*4]

Mr. Gin Lee also testified that he met Mr. Hussain once or twice before the applications were filed, met him at the time the applications were filed, and had seen him "in person" a total of five or six more times. He testified that each time he met Mr. Hussain it was at his (Mr. Chul Lee's) office and that he did not recall meeting Mr. Hussain "at any time during the construction at the Choi's home," although he said there was a possibility he met Mr. Hussain there once.

Mr. Gin Lee testified that it was possible that once a general contractor completes the permit process, it may not be awarded the job.

Discussion

"Labor Law § 240(1) imposes absolute liability on an owner or [general] contractor or their agents for injuries proximately caused by a breach of a nondelegable duty to provide proper protection to a worker performing certain types of work" (Armentano v Broadway Mall Props., Inc., 30 AD3d 450, 450. [2006]; see also Bland v Manocherian, 66 NY2d 452, 459 [1985]). Thus, "to prevail on a cause of action pursuant to Labor Law § 240(1), the plaintiff must establish violation of the statute and that the violation was a proximate cause of his [or her] injuries" (id.). "A general contractor will be held liable under [Labor Law §§ 240(1) and 241(6)] if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors" (Aversano v JWH Contr., LLC, 37 AD3d 745, 746 [2007], quoting Kulaszewski v Clinton Disposal Servs., 272 AD2d 855, 856 [2000]; see also Kenny v George A. Fuller Co., 87 AD2d 183,189-190 [1982], lv, to app.den. 58 NY2d 603 [1982]; Pino v Irvington Union Free School Dist, 43 AD3d 1130,1131 [2007]; Willams v Dover Home Improvement, Inc., 276 AD2d 626, 626 [2000]). A party will be deemed a 'contractor' under section 240(1) if "it had the right to exercise control over the work, [regardless of] whether it actually exercised that right" (Williams v Dover Home Improvement, 276 AD2d at 626; see also Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681,684 [2005]).

Here, defendant has made a prima facie showing that it did not serve as general contractor within the meaning of the Labor Law. In this regard, the record reveals that the homeowner contracted with Kang Won Construction to build the extension, that Kang Won Construction performed all the work at the premises and was paid for the work by Mr. Choi, that Kang Won Construction hired plaintiff to work at the premises, and that defendant did not hire anyone to perform work at the location (see Aversano, 37 AD3d at 746; see also Feltt v Owens, 247 AD2d 689, 691 [1998] [entity which did not speak with or supervise subcontractor about project, was not present at site, where owners issued directions to subcontractor and where subcontractor billed owners directly, was not a general contractor under Labor Law §§ 240(1) and 241(6)]; Clapp v Eastern Rock Products, Inc., 167 AD2d 902, 903 [1990] [entity which owned subsidiary which owned land and building where accident occurred was not general contractor within the meaning of Labor Law §§ 240(1) and 241(6) where no contract existed between entity and its subsidiary obligating entity to undertake construction project, to hire subcontractors or coordinate or supervise various trades on the project, or to provide safe work place]; Schiavone v Catalano, 13 Misc 3d 1219(A) [2006] [prime contractor not responsible for [*5]the coordination and execution of all work at the job site and not vested with power to enforce safety standards and hire responsible contractors, is not general contractor under Labor Law §§ 240(1) and 241(6)]).

Although Mr. Hussain identified himself as the general contractor on applications for work permits, it is undisputed that Three Star was not awarded the contract. In the absence of evidence that Three Star was responsible for "coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors," the signing of his name as general contractor on an application for a work permit is insufficient to render him liable under Labor Law §§ 240(1) and 241(6) (cf. Burnett v Waterford Custom Homes, Inc., 41 AD3d 1216,1217 [2007] [where entity built 35 homes in subdivision, was listed as general contractor on blueprints, various invoices and building permit, and was billed by 29 venders, question of fact existed as to whether entity was liable under Labor Law §§ 240(1) and 241(6)]; Murphy v Kendig, 295 AD2d 946, 947-948 [2002] [evidence that entity served as general contractor on both phases of renovations of restaurant where worker fell, testimony of owner before zoning board of appeals regarding construction, name on building permit applications for all renovations and testimony that it contracted for renovations and recommended a mason for some of the construction, constituted prima facie showing that entity was general contractor]; Relyea v Bushneck, 208 AD2d 1077, 1078 [1994] [evidence that defendant, owner and operator of family concrete business signed the building permit as contractor, poured foundation, set the steel beams, installed the electrical wiring in the house, hired several subcontractors, was at site every day and had authority to sign "anything" sufficient to raise issue of fact as to whether defendant was a general contractor under Labor Law §§ 240(1) and 241(6)]; see also Kelly v Bruno and Son, Inc., 190 AD2d 777, 778 [1993] [by signing building permit application owner of single family home did not "direct or control" the work being performed so as to be liable under Labor Law §§ 240 and 241]).

Moreover, the argument raised by plaintiff in his reply that defendant is estopped from denying that it acted as general contractor since Mr. Hussain admits submitting false information to the Department of Buildings must be rejected because plaintiff has failed to demonstrate that he relied to his detriment upon the representations made by defendant in the filed documents (Keane v Kamin, 257 AD2d 433 [1999] ["There can be no estoppel without detrimental reliance"]). With respect to the renewal application of February 2006, absent some evidence that defendant otherwise performed the duties of a general contractor there is insufficient basis for liability under Labor Law §§ 240(1) and 241(6) (see Burnet, 41 AD3d at 1217 [the "mere status of general contractor does not indicate liability"]; Murphy, 295 AD2d at 947-948; Relyea v Bushneck, 208 AD2d at 1078; cf. Kelly, 190 AD2d at 778). While Mr. Choi paid defendant $1,000 for his plumber's inspection following the construction, it was Mr. Gin Lee who provided the name of defendant's plumber to Mr. Choi pursuant to a document which Mr. Choi signed. [FN2] [*6]Further, although Mr. Gin Lee testified that all conversations with Mr. Hussain were "in relation to the renovation at the Choi's house," he did not testify that these conversations took place in the context of construction of the extension. Finally, the testimony of both Choi and Chul Lee is that Kang Won Construction was the contractor responsible for the work. In this regard, Mr. Choi testified that it was his understanding that Kang Won would take care of all the construction being done on the extension, and that he was advised by Kang Won that he "didn't have to come out to the work site to watch what went on on a daily basis."

Based upon the foregoing, plaintiff's motion for summary judgment in his favor is denied. That branch of defendant's motion for summary judgment on plaintiff's Labor Law §§ 240(1) and 241(6) causes of action is granted. Further, because plaintiff fails to raise a triable issue of fact as to whether the defendant supervised or controlled the worksite or the condition which caused plaintiff's accident, the defendant's motion to dismiss plaintiff's Labor Law § 200/common-law negligence claim is also granted (see Murphy, 295 AD2d 946). That branch of the defendant's motion for sanctions is denied.[FN3]

This constitutes the decision, order and judgment of the court.

ENTER,

J. S. C.

Hon. Gloria Dabiri Footnotes

Footnote 1: He also testified that he could not remember whether he talked to a general contractor during the project.

Footnote 2:The document, addressed to "Owner/Tenant," stated: We [Mr. Gin Lee] have contractor and plumber that is affiliate [sic] with our firm. We will supply you with the name and number of these companies. However if you do proceed with the contractor/plumber to do the construction work we will not be responsible for what he may or may not have done. You, the owner/tenant will be responsible for all damage, injury to the worker and property ... The contractor/plumber name will not sign the application until this agreement is sign: [sic]."

Footnote 3:Plaintiff argues that defendant's cross motion was untimely since its motion was noticed to be heard on October 18, 2007 and contained a demand, pursuant to CPLR 2214(b), that all answering papers and cross motions be served no later then seven days prior to the return date. While defendant served its cross motion on October 9, 2007, and an additional five days was added for mailing (CPLR 2103 [b][2]), plaintiff was not prejudiced by defendants' minimal delay (Guzetti v City of New York, 32 AD3d 234, 234 [2006]; Matter of Margaret A. McKeown, Deceased, February 2, 2005 NYLJ 31 (col. 5), 2005 NY Misc LEXIS 7934, 11-12 [2005]). Plaintiff did not ask for an adjournment and in any event submitted a reply. In addition, the Court's motion support office sua sponte adjourned the matter until November 2, 2007, rendering any untimely submission of motion papers moot.