Sigal v Brokaw

[*1] Sigal v Brokaw 2010 NY Slip Op 52109(U) [29 Misc 3d 1231(A)] Decided on December 6, 2010 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2010
Supreme Court, Kings County

Anatoliy Sigal and LILIYA SIGAL, Plaintiffs,

against

Tom Brokaw, MEREDITH BROKAW, KITTY HAWKS, KITTY HAWKS, INC., and 941 PARK AVENUE, INC., and RESIDENTIAL MANAGEMENT GROUP LLC, Defendants.



11839/2006



ATTORNEYS FOR PLAINTIFFS

SULLIVAN, PAPAIN, BLOCK McGRATH & CANNAVO, P.C.

120 BROADWAY

NEW YORK, NY 10271

212-732-9000

ATTORNEYS FOR DEFENDANTS TOM BROKAW and MEREDITH BROKAW

MACAY, WRYNN & BRADY LLP

40-26 235TH STREET DOUGLASTON, NY 11363

718-423-6800

ATTORNEYS FOR DEFENDANT/THIRD-PARTY PLAINTIFF 941 PARK AVENUE, INC. AND DFENDANT RESIDENTIAL MANAGEMENT GROUP

FLYNN, GIBBONS & DOWD, ESQS.

80 MAIDEN LANE

NEW YORK, NY 10038

212-962-2450

ATTORNEYS FOR THIRD-PARTY DEFENDANT KITTY HAWKS INC.

MILBER MAKRIS PLOUSADIS & SEIDEN, LLP

3 BARKER AVENUE

WHITE PLAINS, NY 10601

914-681-8700

ATTORNEYS FOR THIRD-PARTY DEFENDANT ARETE GROUP, INC.

GOLDSTEIN & AVRUTINE

575 UNDERHILL BOULEVARD

SUITE 140

SYOSSET, NY 11791

516-677-9400

Martin Schneier, J.

In this work-related personal injury action, defendants Tom Brokaw and Meredith Brokaw (the "Brokaws"), move for summary judgment pursuant to CPLR § 3212 dismissing the complaint and all cross-claims interposed against them based on common law negligence and violation of Labor Law § 240(1) on the grounds that this action is barred by the "one and two-family dwellings" exception in Labor Law § 240(1).

Background

Plaintiff, Anatoily Sigal, alleges that on June 6, 2005, he was injured as the result of a fall from a scaffold while working as a painter inside of apartment 14C at the cooperative apartment building, 941 Park Avenue, New York, NY. Plaintiff was employed on that date by third-party defendant Arete Group Inc. ("Arete"). 941 Park Avenue is owned by defendant 941 Park Avenue, Inc., a cooperative corporation. The Brokaws are shareholders in the corporation and hold the proprietary lease for apartment 14C.

Discussion

The drastic remedy of summary judgment should be granted only where there are no triable issues of fact (Pearson v Dix McBride, LLC, 63 [*2]AD3d 895 [2d Dept 2009]).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact (CPLR Section 3212(b); Alverez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Megafu v. Tower Ins. Co. of New York, 73 AD3d 713 [2d Dept 2010]). However, once the moving party has satisfied this obligation, the burden then shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, supra) "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD2d 728, 729 [2d Dept 1995]).

The basis for all of the claims against the Brokaws is Labor Law § 240(1) which states, in pertinent part, that: "[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting,cleaning or pointing of a building or structure shall furnish or erect,or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

The Brokaws have established their prima facie entitlement to summary judgment as a matter of law by demonstrating that they were not negligent, and that they are statutorily exempt from liability under Labor Law § 240(1) because they fall under the exception contained in the statute for the "owners of one and two-family dwellings who contract for but do not direct or control the work." It is undisputed that the Brokaws did not "direct or control the work."

The Appellate Division, Second Department has expressly ruled that a cooperative apartment is a one-family dwelling within the meaning of Labor Law § 240(1) (Maciejewski v. 975 Park Ave. Corp.; 37 AD3d 773 [2d Dept. 2007]; Xirakis v. 1115 Fifth Ave. Corp., 226 AD2d 452 [2d Dept 1996]).

Plaintiffs, in their "Affirmation in Opposition" aver that: "3.It is plaintiffs' position that the Appellate Division was incorrect in extending the one-family owner exemption under the Labor Law to proprietary lease holders."[*3]

Defendants 941 Park Avenue Inc. and Residential Management LLC, in opposition to the motion aver in their "Affirmation in Opposition" that: "10.The tenants support their position with two Second Department decisions: Xirakis v. 1115 Fifth Ave. Corp., 226 AD2d 452 (2d Dept 1996) and Maciejewski v. 975 Park Ave. Corp.; 37 AD3d 773 (2d Dept. 2007). It is respectfully submitted that both decisions ignored the purpose behind the statutory exemption, and were patently incorrect."

This Court is bound by these Appellate Division decisions regardless of the characterization of them by the parties in opposition.

The other argument in opposition is that the Brokaws are agents of the owner for purposes of the statute. The opponents do not offer a single case that holds that the owners of a one-family cooperative are agents of the owner for purposes of Labor Law § 240(1). Furthermore, in Maciejewski and Xirakis, it was implicitly decided that owners of a one-family cooperative are not the agents of the owner for purposes of Labor Law § 240(1). Finally, holding the Brokaws liable as agents would be contrary to the purpose of the statutory exemption which is to protect those owners "who are not in a position to know about, or provide for the responsibilities of absolute liability" (Cannon v Putnam, 76 NY2d 644, 649 [1990], quoting Recommendation of NY Law Rev Commn, reprinted in 1980 McKinney's Session Laws of NY, at 1658).

Based on the foregoing, the opposition to the motion has completely failed to raise any triable issues of fact.

Conclusion

In sum, the Brokaws' motion for summary judgment dismissing the complaint and all cross-claims is granted.

This constitutes the Decision and Order of the Court.

_______________________

J.S.C.