Karim v Martinez

[*1] Karim v Martinez 2010 NY Slip Op 50852(U) [27 Misc 3d 1223(A)] Decided on May 12, 2010 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2010
Supreme Court, Kings County

Mohammed Karim AND MASUMA KHATUM, Plaintiffs,

against

Ernest J. Martinez AND JOANNE O. MARTINEZ,, Defendants.



14000/08



The plaintiffs are represented by the Law Office of Michael S. Lamonsoff, PLLC, by Michael E. Glynn, Esq., of counsel, the defendants are represented by Longo & D'Apice Esqs., by Mark A. Longo, Esq., of counsel.

Robert J. Miller, J.

Defendants Ernest J. Martinez and Joanne O. Martinez (collectively, defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiffs Mohammed Karim and Masuma Khatum (collectively plaintiffs). Plaintiffs cross-move, pursuant to CPLR 3212, for summary judgment against Defendants under their Labor Law §§ 240(1), 241(6), 200 and common-law negligence causes of action.

Facts and Procedural History

The instant action arises out of a fall from a ladder by plaintiff Mohammed Karim (hereinafter Plaintiff) that occurred at approximately 11:30 am on December 6, 2007, while he was performing construction work at defendants' three-story one-family house located at 594 East 5th Street in Brooklyn, New York.

Defendant Ernest Martinez (hereinafter Defendant) testified at his deposition that in early December 2007, he contracted with Mr. Rahman of Janoni Construction to perform renovation work in his three-story one-family house that he and his wife had owned for approximately 25 years. The renovation work consisted of plastering, taping, and painting the main entrance hall ceiling and walls, as well as the ceiling and walls of the staircase leading to the upper two floors of the house. [*2]

At Defendant's initial meeting with Mr. Rahman, Mr. Rahman inspected the house, discussed price, and indicated that the job would take approximately six days to complete. Mr. Rahman agreed to provide the taping and plastering materials, and defendant agreed to provide the paint.[FN1]

At 9:00 am the next morning, Mr. Rahman and two Janoni workers arrived at the house. The workers brought a bucket of compound or plaster and one of the workers brought an aluminum ladder. At some point, Defendant saw that the workers had placed brown paper on the floor in the front entrance of the house to protect it from damage from the work.

During the first day the workers were performing their work, Defendant was in his home office located on the third floor. Defendant testified that he worked at home and that his home office was "in one of the rooms" on the third floor. That first day, Defendant only observed the workers once when he came downstairs for lunch at about noon. Defendant's wife and daughter were working during the day and thus were not home the entire time the Janoni workers were present at the house. When the workers finished work for the day, they left the ladder, plaster and bucket downstairs in the entranceway. Defendant did not inspect or move the ladder.

The next day the workers arrived at the house at 9:00 am and resumed working. Defendant testified that he did not give them any instructions as to where he wanted them to work next. Defendant saw the workers once at 9:15 am while going to his home office and again at noon when he went downstairs to eat lunch.

Defendant testified that the Janoni workers worked at the house for less than two weeks. Toward the end of the two weeks, Mr. Rahman painted the risers and bannisters of the staircase for approximately two days. He was the only worker there during those two days.

Defendant testified that he did not give any instructions to the workers as to how they were to perform their work in the house, nor did he engage in any conversation with the workers. Although Defendant testified that workers were working at his house on December 6, 2007, he was not aware that any of the workers had had an accident at his house until he received the instant summons and complaint in the mail in May, 2008. Defendant testified that while present at plaintiff's deposition, he did not recognize plaintiff as one of the workers who had performed work at his home.

Plaintiff testified at his deposition that on December 6, 2007, the day of the accident, he had already been working at defendant's house for approximately three to four days, that he was not working for a construction or painting company, and that he had never heard of [*3]"Rahman Janoni" or "Rahman at 632 Ocean Parkway."[FN2]

In explaining that he had been working for "Ernie" on the day of the accident, Plaintiff produced a slip of paper upon which Ernie had written his name and cell phone number. Plaintiff identified Ernie as defendant Ernest Martinez, who was present when Plaintiff was deposed. Plaintiff testified that Ernie "found" him because Plaintiff worked next door to Ernie's "building" for a man named Jahangir, and that Ernie had seen Plaintiff there. Plaintiff further testified that while he was working for Jahangir, Ernie told Jahangir that Plaintiff was a good worker and that he needed Plaintiff to work for him for a week. Jahangir told Ernie that he paid Plaintiff $130 per day but that if Ernie hired him, he would have to pay Plaintiff $140 per day. Thereafter, Plaintiff, Jahangir and Ernie: "discussed wages, and Jahangir handled everything. Jahangir said that you [plaintiff] start working for him [Ernie] from the following day and then I [plaintiff] will get paid by [Ernie] directly."

Ernie told Plaintiff to call him on his cell phone to alert him to open the door when Plaintiff arrived at Ernie's house to work.

Defendant told Plaintiff that he needed a helper. After working one or two days, Plaintiff introduced an acquaintance of his to Ernie named Mr. Abdul Azad, who was hired by Ernie to perform sanding and cleaning. Plaintiff testified that Ernie supplied all the materials, including plastering, taping, the compound, the sandpaper, the ladders and the paint. Ernie had provided brown resin paper and told the workers to use it and "not to mess up the floor." Plaintiff and Mr. Azad placed the brown paper over the floor in the main entrance area to protect it from getting damaged or dirty during the renovation.

Plaintiff did not own a ladder and did not bring one to Ernie's house. Plaintiff testified that there were two ladders at the house, a long metallic extension ladder for the hallway and a stepladder for the "lobby" area or main entrance hall of the house. The step ladder was a wooden A-frame ladder which was approximately 6-8 feet high. Plaintiff used the wooden ladder because the extension ladder would not fit in the main entrance way. Plaintiff testified that on the date of the accident, he was performing work in the main entrance hall of the house and that Mr. Azad was working on the second floor. Plaintiff obtained the wooden ladder, opened it, and placed it on the floor approximately 4-6 feet away from the entrance door. Plaintiff shook the ladder with his hands to make sure that it was sturdy and placed properly. Plaintiff also pushed down on the metal pieces or locks on the ladder, although he also said that he did not have to do so because the ladder "automatically locks itself."Once Plaintiff saw that the ladder was properly placed, he mixed the plaster compound, returned to the ladder and shook the middle part of the ladder again with his right hand, and observed that it was properly placed. At that point, he was holding part of the compound and two scrapers in his left hand. With the compound and two scrapers in his left hand, he [*4]stepped onto the ladder's first rung with his left foot while holding the ladder with his right hand. When he stepped onto the second rung of the ladder with his right foot, the ladder "collapsed" or "closed," meaning the two parts of the ladder came together, and the locks came off, causing plaintiff and the ladder to fall forward to the ground.

When asked whether there was any rubber at the bottom of the ladder, Plaintiff responded that he "did not observe any." When asked whether there was any metal [on the bottom of the ladder], he responded "[n]o, I did not observe it. When asked again whether there was rubber on the step ladder, Plaintiff responded "I really did not notice it. I mean, I don't recall it now". Finally, when asked what caused the ladder to close, Plaintiff replied "I think maybe because it was a very old ladder the locks may have loose ends or something." When defense counsel asked Plaintiff "[d]o you know? I don't want to know what you're assuming. I want to know if you know what caused the ladder to close." Plaintiff replied "No, I don't." When asked "[d]id you feel the ladder closing?" Plaintiff replied "[w]ell, before I could feel it, I had fell [sic], you know. I had fallen on the floor and if I knew that this would happen, I would not have stepped on it." Plaintiff testified that Defendant and Mr. Azad helped him up and that Defendant drove him to the hospital.[FN3]

Mr. Abul Azad appeared for a non-party deposition on November 20, 2009.[FN4] He testified, in part, that on his first day at work, "Ernie" told him and Plaintiff "what work" needed to be performed. Specifically, Mr. Azad testified that Ernie "told us and he showed us that this are [sic] the job we have to do . . . He told me about the sand work and the scrap work and he showed me tools and the supplies." Mr. Azud also stated that when he and Plaintiff went to defendants' house on the first day they started working, they did not have any tools or materials with them, and that the "owners" provided them. Mr. Azud further testified that although he did not know who owned the ladder, the owner "showed" him the ladder, the "scrape" tools, the plaster, other tools and the cleaning cloths, which the owner provided; that Plaintiff did not bring the wooden ladder with him to work; and that the ladder was at the house.

Plaintiff commenced the instant action against defendants by service of a summons and verified complaint on or about May 8, 2008. Defendants interposed an answer on about June 25, 2008. Plaintiff filed a verified bill of particulars on or about September 11, 2008. After the depositions of Plaintiff and Defendant were conducted in March and April, 2009, Plaintiff filed the note of issue on or about August 5, 2009. In November, 2009, Mr. Azud was deposed. The parties subsequently filed the instant motions, which are presently before the court.

Labor Law § 240 (1) and 241 (6)[*5]

Defendants first argue that Plaintiff's claims pursuant to Labor Law §§ 240 (1) and 241 (6) must be dismissed based upon defendants' status as owners of a one-or two-family dwelling.

"Labor Law § 240(1) imposes a nondelegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure'" (Umanzor v Charles Hofer Painting & Wallpapering, Inc., 48 AD3d 552, 552 [2008], lv denied 10 NY3d 714 [2008], quoting Jock v Fien, 80 NY2d 965, 967-968 [1992]). However, "[o]wners of one-or two-family dwellings . . . are exempt from liability under Labor Law §§ 240 and 241 unless they directed or controlled the work being performed" (id., citing Bartoo v Buell, 87 NY2d 362, 367, [1996]; Cannon v Putnam, 76 NY2d 644, 646 [1990]). "The exception was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability" (id., quoting Milan v Goldman, 254 AD2d 263, 678 [1998]). "The expressed and unambiguous language of [Labor Law 240 (1) and 241 (6)] focuses upon whether the defendants supervised the methods and manner of the work" (Chowdhury v Rodriguez, 57 AD3d 121, 127 [2008], citing Ortega v Puccia, 57 AD3d 54, 59 [2008]; Boccio v Bozik, 41 AD3d 754, 755 [2007]; Arama v Fruchter, 39 AD3d 678, 679 [2007]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 849 [2007], appeal dismissed 8 NY3d 841 [2007]; Siconolfi v Crisci, 11 AD3d 600, 601 [2004]; Miller v Shah, 3 AD3d 521, 522 [2004]; see also Duarte v East Hills Constr. Corp., 274 AD2d 493, 494 [2000]).

Defendants' have made a prima facie showing entitling them to summary judgment on their Labor Law §§ 240 (1) and 241 (6) causes of action. It is undisputed that defendants' house is a one-family private dwelling. In addition, defendants have made a prima facie showing that they did not direct or control the work Plaintiff was performing. In this regard, Defendant testified that he did not give the workers any instructions as to how they were to perform work in the house, and that he did not engage in any conversations with the workers. Defendant also testified that when the workers came back on the second day, he did not give them any instructions as to where to work next. Further, it is undisputed that defendant Joanne O. Martinez, who jointly owns the property with defendant, was not at the premises when the accident occurred. In this regard, Defendant testified that his wife (and daughter) left for work before the workers arrived and were not present the entire time the workers performed their work at the house. Plaintiff similarly testified that Defendant's wife and daughter left the house when he and Mr. Azud came to the house to work, and that Defendant was the only person in the house when he and Mr. Azud were working.

Defendant also testified that the only time he saw the workers when they worked was on a few brief occasions when he walked to his office or went down stairs during the day at noon to eat lunch. These observations do not constitute supervision of plaintiff's work under the Labor Law (Uddin v Three Bros. Constr. Corp., 33 AD3d 691, 693 [2006]). Further, in his affidavit submitted in support of this instant motion, Defendant avers that he never [*6]instructed any of the workers as to the method or manner in which they were to perform their respective work.

With respect to supplying materials for the project, Defendant testified that he only provided the paint. In his affidavit, he attests that "[a]ll of the equipment that the Janoni Construction workers used in order to perform plastering and sheetrock taping work was provided to them by Janoni Construction . . . I only provided the paint for the work and never lent or provided any other equipment or materials to any of the Janoni Construction workers, including any ladders used by the Janoni Constructions workers."

Although Plaintiff testified that Defendant provided him with the subject wooden ladder, this does not serve as a predicate for liability (Ortega, 57 AD3d at 59 [2008] [where defendant homeowner assembled and braced the scaffolding from which the plaintiff contractor fell, court held that "(t)he defendants' involvement with the . . . project was no more extensive than that of any ordinary homeowner who was not supervising, directing, or controlling the manner of the work"]; see also Chowdhury, 57 AD3d at 127 ["Even assuming that the defendants did loan the short ladder to the plaintiff, it was not equivalent to directing or controlling the work and could not serve as a predicate for liability outside of the homeowner's exemption"]; Stone v Altarac, 305 AD2d 849, 850 [defendants' provision of a ladder for plaintiff roofer is insufficient to deny defendants the benefit of the statutory exemption]; Miller v Trudeau, 270 AD2d 683, 683 [2000] [internal quotation marks and citations omitted] ["The mere fact that defendant provided a ladder for plaintiff's use does not serve as a predicate for liability and, although defendant and his grandsons . . . performed most of the construction work on the addition, there is no indication in the record that defendant directed or controlled the manner in which plaintiff performed the roofing work"]; Kammerer v Baskewicz, 257 AD2d 811, 812 [1999] ["(A)lthough defendant left a ladder at his residence for use by plaintiff, there is no evidence that he directed plaintiff how to use the ladder or how to estimate and execute the job to be undertaken. Indeed, defendant was not even present at the time the accident occurred. The mere fact that defendant provided a ladder for plaintiff's use does not serve as a predicate for liability"]).

Plaintiff has failed to raise a triable issue of fact to rebut defendants' prima facie showing. In his affirmation in support of his cross motion and in opposition to defendants' motion, plaintiff argues that since the renovation work performed in the common hallway and stairways of defendants' house is shared by the home office on the third floor, this constitutes evidence that the same building was used for commercial activity, which raises a question of fact whether defendants are entitled to the homeowner's exemption. Plaintiff also argues in his reply that defendants fail to address the extent to which the house was utilized as a home office, namely how much of the home was dedicated to the home office or what activities were carried out by defendant at his office.

"Use of a portion of a homeowners's premises for commercial purposes . . . does not automatically cause the homeowner to lose the protection of the exemption under this statute" (Ramirez v Begum, 35 AD3d 578, 579 [2006], lv denied 8 NY3d 809 [2007]). [*7]Instead, "[t]he determination whether the exemption is available to an owner in a particular case turns on the site and purpose of the work" (Khela v Neiger, 85 NY2d 333, 337 [1995]).

Here, the site and purpose of the construction was solely connected with plastering, sheetrock taping and painting the entrance way ceiling and the ceiling and walls of the staircase leading to the second and third floors of this one-family home. Defendants owned and used their home as their primary residence, and the work was not for creating or enhancing a commercial usage (id.). Moreover, contrary to Plaintiff's argument regarding the extent to which the office was used, Defendant testified that his home office constituted one room on the third floor. Thus, "[c]ontrary to the plaintiff's contention, the use of a portion of the defendants' residence for commercial purposes did not automatically cause them to lose the protection of the exemption since the presence of the office did not detract from the building's primary use as a residence, and any purported commercial activity was incidental thereto" (Umanzor, 48 AD2d at 553 [internal citations omitted]; see also DeSabato v 674 Carroll St. Corp.,55 AD3d 656, 658 [2008] [internal quotation marks and citations omitted] ["Although the homeowner exemption does not apply where a one-family dwelling is used by its owner exclusively for commercial purposes . . . the presence of a home office is not sufficient to deprive an apartment of its essentially residential character"]; Ramirez, 35 AD3d at 579 [internal quotation marks and citations omitted] ["the replacement of the siding of the exterior of the house directly relate[d] to the residential use of the home . . . since the defendants reside in the two-family dwelling and thus entitled defendants to the exemption]; see also Bartoo v Buell, 87 NY2d 362, 366 [1996] [lease by defendant homeowner of part of barn to nine separate individuals for storage did not deprive defendant of the homeowner's exemption "notwithstanding the presence of some commercial activity"]). Based upon the foregoing, plaintiff has failed to raise an issue of fact that defendants are not entitled to the homeowner's exemption because defendant maintained a home office.

Plaintiff also argues that defendants cannot claim the protection of the homeowner's exemption because they directed and controlled his work. In support of this argument, plaintiff cites his own deposition testimony that: 1) Defendant told him he would need a helper, supplied all the materials, and supplied him with brown paper and instructed him to cover the floor with it, and 2) Mr. Azud's testimony that Defendant told him what work to do, supplied him with the needed tools and pointed out other tools that he was to use.

This argument fails to raise a triable issue of fact to rebut defendants' prima facie showing. First, as noted above, "[t]he phrase direct or control' is construed strictly and refers to a situation where the "owner supervises the method and manner of the work" (Duarte, 274 AD2d at 494 [internal quotation marks and citations omitted]). Here, plaintiff does not allege that Defendant gave him any directions or instruction regarding the work that he was performing at the time of his fall. Similarly, Mr. Azad only testified that Defendant told the workers what work needed to be performed.

In addition, the testimony of Plaintiff and Mr. Azud that Defendant provided them [*8]with materials, and Plaintiff's testimony that Defendant told him that he needed a helper, also fails to raise a triable issue of fact whether Defendant supervised or controlled the method or manner of Plaintiff's work. As an initial matter, Plaintiff fails to cite any authority to support this argument. In any event, the court recognizes that there exists a line of authority from the Appellate Division, Second Department suggesting that the provision of materials constitutes directing and controlling the work. For example, Jumawan v Schnitt (35 AD3d 382, 382 [2006], lv denied 8 NY3d 809 [2007] [internal quotation marks and citations omitted]) holds that "[t]he phrase direct or control as used in [Labor Law §§ 240 (1) and 241 (6)] is construed strictly and refers to the situation where the owner supervises the method and manner of the work . . . or where the owner supervises the method and manner of work, can order changes in the specifications, reviews the progress and details of the job with the general contractor, and/or provides the equipment necessary to perform the work" (Id. at 382 [emphasis added]; see also Rodas v Weissberg, 261 AD2d 465 [1999]; Slettene v Ginsburg, 257 AD2d 656, 657 [1999]). However, in light of the recent holdings of Ortega (57 AD3d at 59) [where defendant homeowner assembled and braced the scaffolding from which the plaintiff contractor fell, and where the court held that "(t)he defendants' involvement with the . . . project was no more extensive than that of any ordinary homeowner who was not supervising, directing, or controlling the manner of the work"], and Chowdhury (57 AD3d at 127) ["Even assuming that the defendants did loan the short ladder to the plaintiff, it was not equivalent to directing or controlling the work and could not serve as a predicate for liability outside of the homeowner's exemption"], the court finds that the provision of supplies by Defendant and the suggestion that Plaintiff needed a helper do not rise to the level of supervision and control as contemplated under these recent holdings and Labor Law §§ 240(1) and 241(6). In sum, Defendant's involvement was "no more extensive than that of any ordinary homeowner who was not supervising, directing, or controlling the manner of the work" (Ortega, 57 AD3d at 59, Chowdhury, 57 AD3d at 127).

Based upon the foregoing, that branch of defendants' motion for summary judgment dismissing Plaintiff's Labor Law §§ 240(1) and 241(6) causes of action is granted. Thus, that branch of Plaintiff's cross motion for summary judgment on these causes of action is denied.

Labor Law § 200 and Common-law Negligence

"Labor Law § 200 is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work" (Chowdhury, 57 AD3d at 127-128). "Liability under the statute is therefore governed by common-law negligence principles. Ladders fall within the scope of the protection afforded by the statute (Id. at 128). In this regard, "when a property owner lends its own equipment to a worker which then causes injury, the legal standard that governs claims under Labor Law § 200 is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof (Id. at 123). The rationale for this standard is explained by Chowdhury as follows: "In addressing the legal standard that is to be applied when a property owner provides a worker with dangerous or defective equipment that causes injury [*9]during the course of the work, we are reminded that a basic, underlying ground for the imposition of any liability under both Labor Law § 200 and the common law is the authority of the defendant to remedy the dangerous or defective condition at issue . . . Accordingly, when a worker's injury results from his or her employer's own tools or methods, it makes sense that a defendant property owner be liable only if possessed of authority to supervise or control the work, since such defendant is vested with the authority to remedy any dangers in the methods or manner of the work . . . Similarly, if a worker's injury results from a dangerous or defective premises condition, it logically follows that a property owner's liability should be predicated upon evidence of the owner's creation of the condition or actual or constructive notice of it, since the property owner in charge of the site has authority to remedy any dangers or defects existing at its own premises" (id. at 129-130 [internal quotation marks and citations omitted]).

Thus, "when a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" (Id. at 131-132, citing Erdely v Direct Access Sys., Inc., 45 AD3d 724 [2007], appeal dismissed 10 NY3d 901 [2008]; Cruz v Kowal Indus., 267 AD2d 271 [1999]; Higgins v 1790 Broadway Assocs., 261 AD2d 223 [1999]).

Here, in addition to arguing that they did not supervise or control Plaintiff's work, defendants assert in their affirmation in opposition to plaintiffs' cross motion that "there is no evidence in the record to establish that the plaintiff's accident occurred as a result of a dangerous' and defective' condition of the premises, let alone a condition of which the defendants had either actual or constructive notice." In support of this contention, defendants note that Plaintiff merely testified that when he stepped onto the second rung of the ladder, the ladder closed, causing him to fall; that Plaintiff set up the ladder; and that Plaintiff could not provide an explanation as to why the ladder closed or provide any evidence regarding any defect in the ladder. However, while Plaintiff testified that he did not recall whether there was rubber on the bottom on the ladder, and that he did not know what caused the ladder to close or collapse, he testified that the locks came off when the ladder fell. Notably, defendants fail to address this aspect of plaintiff's testimony. Thus, defendants have failed to establish that the ladder did not contain a defect, namely defective locks. Further, defendants have failed to demonstrate that they did not have actual or constructive notice of the allegedly defective locks. Based upon the foregoing, defendants' have failed to make a prima facie showing entitling them to summary judgment on this cause of action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Id. at324). As such, this branch of defendants' motion is denied. [*10]

With respect to that branch of plaintiffs' cross motion for summary judgment on their Labor Law § 200 cause of action, questions of fact exist as to whether defendants created or had actual or constructive notice of the allegedly broken locks on the wooden ladder.

In sum, the motion of defendants for summary judgment is granted to the extent of dismissing the Labor Law §240 (1) and 241 (6) causes, and is otherwise denied. The cross motion of plaintiffs for summary judgment is denied.

This constitutes the decision and order of the court.

E N T E R,

____________________

Robert J. Miller

J. S. C. Footnotes

Footnote 1:At the deposition, defendant produced a business card of Mr. Rahman which contains the name "JANONI CONSTRUCTION CORP." above smaller lettering stating "Painting & Decorating (Interior and Exterior)," listing the types of work performed. The bottom of the card contains Mr. Rahman's name, telephone numbers, and address (632 Ocean Parkway, Brooklyn, NY 11230).

Footnote 2:Plaintiff testified through a Bengali interpreter.

Footnote 3:Defendant testified that he did not assist workers stand up while they were in his house and that he did not drive any workers to the hospital.

Footnote 4:Mr. Azad testified through a Bengali interpreter.