Warnick v 1211 S. Blvd. LLC

[*1] Warnick v 1211 S. Blvd. LLC 2010 NY Slip Op 52442(U) Decided on December 14, 2010 Supreme Court, Bronx County Thompson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2010
Supreme Court, Bronx County

Ronald Warnick, Plaintiffs,

against

1211 Southern Boulevard LLC, VOODO CONTRACTING CORP., d/b/a UNIVERSAL CONTRACTING CO., & UNIVERSAL CEILING LTD., Defendants.



17576/07



KUHARSKI & LEVITS, LLP

Attorney for Plaintiff

176 Hart Blvd.

Staten Island, NY 10301

HOFFMAN & ROTH

Attorney for Defendant

1211 Southern Blvd.

325 Broadway, Suite 502

New York, NY 10007

MOLOD SPITZ & DeSANTIS, P.C. Attorney for Defendant

UNIVERSAL CEILING

140 West 40th Street

New York, NY 10018

Kenneth Thompson, J.

Defendant's UNIVERSAL CEILING LTD motion for an Order pursuant to CPLR § 3212 granting summary judgment originally returnable on August 19, 2010; Defendants/Third-Party Plaintiffs' 1211 SOUTHERN BOULEVARD LLC and VOODO CONTRACTING CORP., d/b/a UNIVERSAL CONTRACTING CO. motion for an Order pursuant to CPLR § 3212 granting summary judgment originally returnable on November 5, 2010; and Third-Party Defendant's FELDMAN KUMBAR INDUSTRIES, INC. motion for an Order pursuant to CPLR § 3212 granting summary judgment originally returnable on November 5, 2010 are consolidated herein for Decision.

Defendant's UNIVERSAL CEILING LTD motion for an Order pursuant to CPLR § 3212 granting summary judgment originally returnable on August 19, 2010 is denied.

Defendants/Third-Party Plaintiffs' 1211 SOUTHERN BOULEVARD LLC and VOODO CONTRACTING CORP., d/b/a UNIVERSAL CONTRACTING CO. motion for an Order pursuant to CPLR § 3212 granting summary judgment originally returnable on November 5, 2010 is denied as moot given that the action has been discontinued as to those parties as per the annexed Stipulation of Discontinuance dated February 15, 2011.

Third-Party Defendant's FELDMAN KUMBAR INDUSTRIES, INC. motion for an Order pursuant to CPLR § 3212 granting summary judgment originally returnable on November 5, 2010 is granted. Given the discontinuance as to 1211 SOUTHERN BOULEVARD LLC and VOODO CONTRACTING CORP., d/b/a UNIVERSAL CONTRACTING CO. there is no basis to allow the Third-Party action to continue.

Background

Plaintiff brought causes of actions against Defendants under Labor Law §§ 200 and 241(6), as well as under 12 NYCRR. §§ 23-1.5, 23-1.7, 23-1.8 and 23-2.1. Defendant UNIVERSAL CEILING LTD argues that it is entitled to summary judgment on the grounds that the statutes do not apply to it because: the Plaintiff was not employed by it nor did it have any other duty to Plaintiff when his injury occurred; it was neither a contractor nor sub-contractor on the project; it was not present on the site at the time of Plaintiff's injury; and the superintendent present was a special employee of VOODO CONTRACTING CORP.

Summary Judgment [*2]

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.

Alvarez v. Prospect Hosp., 68 NY2d 320, 324.

Statutory Agent

"Subcontractors have been held to be the statutory agents of general contractors in situations in which evidence showed that the subcontractors actually exercised supervisory authority." Nascimento v Bridgehampton Constr. Corp., 2011 NY Slip Op 4607, *3. (citations omitted). Defendants/Third-Party Plaintiffs 1211 SOUTHERN BOULEVARD LLC and VOODO CONTRACTING CORP, d/b/a UNIVERSAL CONTRACTING CO have raised a triable issue of fact as to whether UNIVERSAL CEILING LTD was UNIVERSAL CONTRACTING CO's "statutory agent" at the time of Plaintiff's injury. Thus, UNIVERSAL CEILING LTD may be held liable under the Labor Law.

Labor Law § 200

"To establish liability for a violation of Labor Law § 200 and for common-law negligence, a plaintiff must demonstrate that the defendants exercised supervision and control over the work performed, or had actual or constructive notice of an allegedly unsafe condition." Pilch v. Bd. Of Educ., 27 AD3d 711, 713. The statute "applies to owners, contractors, or their agents who have the authority to exercise supervision and control over the work bringing about the injury to enable it to avoid or correct an unsafe condition." Everitt v. Nozkowski, 285 AD2d 442, 443.

Plaintiff and Defendants/Third-Party Plaintiffs 1211 SOUTHERN BOULEVARD LLC and VOODO CONTRACTING CORP, d/b/a UNIVERSAL CONTRACTING CO. point to evidence that ZBIGNIEW KULIKOWSKI supervised and controlled Plaintiff's handling of the sheet-rock, in that he: ordered Plaintiff to alter the dolly being used to move the sheet-rock in order to speed up the process; instructed Plaintiff where and how to place the sheet-rock once inside; coordinated all trades at the location; was responsible for making sure the location was clean and safe, and had the authority to stop any work being done that he deemed unsafe. Therefore, as an agent with the power to control and supervise Plaintiff's work at the time of his alleged accident, there is a triable issue of fact as to whether UNIVERSAL CEILING LTD may be held liable under § 200.

Labor Law § 241(6)

All 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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply [*3]with the following requirements: . . . All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

Labor Law § 241(6).

"Labor Law § 241(6) protects only those workers engaged in duties connected to the inherently hazardous work of construction . . . ." Valdivia v. Consol. Resistance Co. of Am., Inc., 54 AD3d 753, 754. "To prevail under Labor Law § 241(6), the plaintiff is required to establish a violation of an implementing regulation that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles." Collucci v. Equit. Life Assur. Socy. of US, 218 AD2d 513, 517.

Plaintiff has cited to specific violation under the Industrial Code. The Court has found above that UNIVERSAL CEILING LTD may be subject to these alleged violations because it may be the "statutory agent" of UNIVERSAL CONTRACTING CO. Therefore, UNIVERSAL CEILING LTD is not entitled to summary judgment on this claim.

The foregoing shall constitute the decision and order of this Court.

Dated: _________________J.S.C.