Bennett v Hucke

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Bennett v Hucke 2013 NY Slip Op 30683(U) April 1, 2013 Sup Ct, Suffolk County Docket Number: 07-10131 Judge: Hector D. LaSalle Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 07-10131 CAL NO. 12-012850T 51{OK I FORM ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 48 - SUFFOLK COUNTY PRESENT: Hon. HECTOR D. LaSALLE Justice of the Supreme Court JOSEPH BENNETT, as Guardian of JAMES BENNETT, an incapacitated person, and TRACY BENNETT, MOTION DATE 12-29- 11 (007) MOTION DATE 6-19-12 (008) MOTION DATE 9-25-12 (009) MOTION DATE 10-2-12 ( 10) 0 ADJ. DATE 12-1 1-12 # 008 - MD Mot. Seq. # 007 - MotD # 010 -MD # 009 - MD #011 -XMG GATHMAN & BENNETT, L.L.P. Attorney for Plaintiff Joseph Bennett 191 New York Avenue, Suite 202 Huntington, New York 1 1743 Plaintiffs, JOHN J. LEO, ESQ. Co-Counsel for Plaintiff James Bennett 191 New York Avenue Huntington, New York 11746 WILLIAM POISSON, ESQ. Attorney for Plaintiff Tracy Bennett 1860 Walt Whitman Road, Suite 800 Melville, New York 11747 - against - ROBERT P. TUSA, ESQ. Attorney for Defendant Hucke 898 Veterans Memorial Highway, Suite 320 Hauppauge, New York 1 1788 MICHAEL HUCKE, CINDY HUCKE, ALAN KIRK, ALAN H. KIRK, INC., ALAN KIRK CUSTOM HOMES, INC., A & LP CONSTRUCTION CO., INC. and ANDREW PERCOCO. Defendants. MAZZARA 22 SMALL, P.C. Attorney for Defendant Kirk 800 Veterans Memorial Highway Hauppauge, New York 1 1788 ANN BALL, ESQ. Attorney for Defendants A & LP Construction and Andrew Percoco 357 Veterans Memorial Highway Commack, New York 1 1725 [* 2] Bennett v I-Iucke Index No. 07-10131 Page No. 2 lipon the following papers numbered 1 to 154 read on these motions for summary judgment; to strike; to disqualifv attorney, and these cross motions to dismiss ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 10; 1 1-62; 63-67; 68-73 , Notice of Cross Motion and supporting papers - 74-90 ; Answering Affidavits and supporting papers 91-1 12; 113-1 16; 117-1 IS, 119-120; 121-125; 126-132; 133-136; 137-140-; Replying Affidavits and supportingpapers 141-148; 149-154 ;Other -: b ) it is, ( t - ORDERED that tlie motion (007) by defendants Michael Hucke and Cindy Hucke, the cross motion (008) by plaintiffs, the motions (009 and 010) by plaintiffs, and the cross motion (01 1) by defendants Michael and Cindy 1 Iucke are consolidated for the purpose this determination; and it is further ORDERED that the motion (007) by (defendants Michael Hucke and Cindy Hucke for summary judgment dismissing the complaint and cross claims against them is granted to the extent indicated herein and is othcrwise denied: and it is ORDERED that the cross motion (008) by plaintiffs for an order striking defendants Michael Hucke s and Cindy Hucke s affirmative defense based upon section 11 of the Workers Compensation Law is denied; and it is ORDERED that the motion (009) by plaintiffs for, inter alia, partial summary judgment on the issue ol liability with respect to tlie claims contained in their complaint is denied; and it is further ORDERED that the motion (0 10) by plaintiffs for an order disqualifying Schondebare & Korcz, Esqs. as attorneys for defendants Michael Hucke and Cindy Hucke is denied; and it is further ORDERED that the cross motion (01 1) by defendants Michael Hucke and Cindy Hucke for an order dismissing the second cause of action contained in the complaint is granted. On Deceniber 19.2003, plaintiff James E3ennett ( Bennett ) fell from a scaffold while working at the residence 01 defendants Michael Hucke and Cindy Hucke (hereinafter collectively known as the Huckes ). The accident occurred during the framing phase of the project. Bennett, who was helping to secure the scaffold, nllcgedly lost his grip and fell approximately 30 feet to the first floor of the building. He allegcdly sustained severc hrnin in-juriesas a result of tlie fall. By order of this Court, dated April 15, 2004 (Leis, J), Bennett was ad-judicated an incompetent person and his wife, Tracey Bennett, was appointed his guardian. The Bennetts subsequcntly commenced a personal injury action, assigned index no. 05- 1872, against the Huckes alleging causes oi action for negligence, violation of the Labor Law, and loss of services. The complaint also lists a number of contractors at the worksite, including Alan Kirk, Alan H. Kirk, Inc., Alan Kirk Custom Homes Inc., (hereinafter collectively known as the Kirks ), P&LP Construction Co., Inc., and Andrew Percoco (hereinafter collectively known as Andrew Percoco ) as defendants to the action. The defendants joined issue, and the Huckes and the Kirks asserted cross claims against each other for contribution and indemnification. In April 2005, the Kirks commenced a third-party action seeking indemnification and contribution from Bennett Ruilding, Inc. and J. Bennett Building Inc., Bennett s alleged employers at the time of the accident. By order dated March 13, 2006 this Court granted a default judgment against the third-party defendants on the issue of liahilitj. [* 3] Bennett v I Iuclie Index No. 07- 10 13 1 Page No. 3 On September 14,2006, the injured plaintiffs brother, Joseph Bennett, was appointed plaintiffs interim guardian for a period of ninety days (Leis, J.). In {October2006, the Court permitted Joseph Bennett to continue as the injured plaintiffs interim guardian, and to retain counsel on his behalf. Shortly thereafter, the incoming counsel commenced the instant action assigned index no. 07- 10 13 1. The action names all the defendants identified in tlic 2005 action, and asserts the sarne causes of action raised in the earlier complaint, as well as a cause 01 action based upon defendants purported failure to secure workers compensation insurance on behalf ot Bennett. The defendants joined issue in the second action and asserted cross claims against each other for, intcr alia, contribution, indemnification and fajlure to procure insurance. By order dated March 18, 2008 the (7 anenbaum. .I.). court granted a motion by the Kirks, pursuant to CPLR 321 1, seeking dismissal of the 2007 action on the ground that an action seeking identical relief already was pending before the court. The plaintiffs appealed the court s ruling. c On July 7, 2009, the Appellate Division, Second Department, reversed the trial court s determination the basis that the motion, made pursuant to CI LR 321 1, was untimely (see Bennett v Hricke, 64 AD3d 529, 88 I NYS2d 335 [2d Dept 20091). However, the Court noted that the Kirks could still pursue any appropriate relief by way of a summary judgment motion in the normal course of litigation. As a result, the Kirks moved, pursuant to CPLR 321 2, for summary judgmeni dismissing the 2007 complaint, arguing that another action seeking identical relief was pending before the (court,and that the additional Workers Coinpensation claim contained i n the complaint was barred by the doctrines of resjudicata and collateral estoppel. The motion was denied by Justice Tanenbaum by order dated July 22,2010, as the 2007 action was deemed necessary on behalf of the incapacitated plaintiff. The Court also fclund that the March 2006 default judgment against the thirdparty defendants did not preclude recovery against the Kirks in the underlying action, and that the 2007 complaint stated a viable claim under the Workers Compensation Law, since Bennett may have been employed as a special employee when he was injured at ihe worksite. The Court further joined the two actions for the sole purposc of conducting a joint trial. 011 l he I-lucltes now move for sumniary judgment dismissing the complaints and cross claims against them on the grounds they are exempted from plaintiffs Labor Law and common law claims, as they owned the sub-ject premises and neither controlled plaintiff s work nor had actual or constructive notice of the alleged dangerous condition which caused his injuries. Plaintiffs oppose the motion, arguing a triable issue exists as to tthether the Iiuckes should be beneficiaries of the homeowners exemption, as they were sophisticated husiness people who listed the premises as the location oftheir mobile disc jockey business, maintained a home ollice f o r the business, and utilized the garage at the premises to store commercial vehicles and other items connected to the business. Plaintiffs cross-move for an order striking the affirmative defense based upon the esclusivity provision of the Workers Compensation Law contained in the Huckes answers to the actions. In opposition, the I-luckes argue that the cross motion should be denied, as they have previously sent correspondence t o plaintiffs indicating that they are voluntarily withdrawing the affirmative defense. By way ofa separate motion, plaintiffs also move for sumniaryjudgment on their complaint and for the imposition of a Noseworthy inference in their favor. The Huckes oppose the motion on the bases they are cxempt from plaintiffs Labor Law claims, and they neither controlled nor supervised Bennett s work or had actual or constructive notice of any dangerous condition at the worksite. The Muckes further cross-move for an order granting summary judgment dismissing plaintiffs second cause of action based on their alleged failure to secure Workers Compensation insurance on behalf of Bennett. The Huckes assert that they were not [* 4] Bennett v I lucke Index No. 07-10131 Page No. 4 rcquired to secure insurance on behalf of Bennett, as they were the owners of the residential premises and did not directly or indirectly employ him at the time of the accident. Plaintiffs oppose the Huckes cross motion, arguing, inter alia, that the motion violates the rules against successive summary judgment motions. By order to show cause dated September 14, 2012, plaintiffs move for an order disqualifying Schondebare & Korcz, Esqs. as attorneys for the Huckes on the bases said attorneys acted against the interests of the I-Iucl<esby permitting their clients to voluntarily withdraw their defense based on the exclusivity provision of the Workers Compensation Law, and by failing to advise them that they may be held criminally liable for failing to procure Workers Compensation insurance on behalf of Bennett. The Huckes oppose the motion. arguing, inter alia, that plaintiffs lack standing to make such a motion, and that their assertions regarding the existence of any conflict is conclusory and speculative. Initially, the Court notes that the branches of the motion by the Huckes seeking summary judgment dismissing the complaint and any cross claims filed against them in the action assigned index number 05-1 872 is denied. The branches of-the respective motions seeking relief in said action are likewise denied. Since the actions have been joined for the purpose of a joint trial only, the integrity and identity of each action is preserved, and any application for relief in the former action must be made under the index number which corresponds to such action (see CPLR 602[b]; Inspiration Enters. v Inland Credit Corp., 57 AD2d 800, 394 NYS2d 701 [lst Dept 19771). The homeowner s exemption to liability under Labor Law $9240 and 241(6) is available to owners of one and two-family dwellings who contract for but do not direct or control the work performed on their premises (scc Cnstellnnos v United Cerebral Palsy Assn. of Greater Suffolk, Inc., 77 AD3d 879, 909 NYS2d 757 [2d Dept 20101; Boccio v Bozik, 41 AD3d 754, 839 NYS2d 525 [2d Dept 20071). The phrase direct or control refers to the situation where the owner supervises the method and manner ofthe work (see Walsh vKresge, 69 AD3d 612,893 NYS2d 13 7 [2d Dept 20101; Boccio v Bozik, supra). The homeowners eveniption is intended to protect homeowners who, lacking sophistication or business acumen, fail to recognize the necessity of insuring against the slrict liability imposed by the Labor Law (see Ortega v Puccia, 57 AD3d 54. 866 NYS2d 323 [2d Dept 20081). The exemption is not available to an owner who uses or intends to use a dwelling only for commercial purposes (see Van Amerogen v Donnini, 78 NY2d 880, 573 NYS2d 443 [ 1991]), and, in the case of mixed residential and commercial use, the availability of the exemption turns on the site and purpose of the work (Khefav Neiger, 85 NY2d 333, 337, 624 NYS2d 566 [ 19951: Lendn v Breeze Concrete Corp., 73 AD3d 987, 989, 903 NYS2d 417 [2d Dept 20101). The site and purposc test is employed on the basis of the homeowners intentions at the time of the injury underlying the action and not their hopes for the future (Truppi v Buscigfio, 74 AD3d 1624. 1625, 905 NYS2d 291 [3cl Dept 20101 quoting Allen v Fiori, 277 AD2d 674, 675, 716 NYS2d 414 [3d Dept 20001; sc~c Lendcr v Breeze Concrete Corp., szippra). Furthermore, where the work contracted for relates to the residential nature ofthe premises, even if the work also serves a commercial purpose, the exemption applies (.we Bnrtoo Ruell, 87 NY2d 362,639 NYS2d 778 [ 19961; Muniz v Church o Our Ladv of Mt. Cnrmel, f 235 AD2d 101,655 NYS2d 38 [lst Dept 199 71). IJ Here, the Huckes established their prima facie entitlement to summary judgment dismissing plaintiffs [* 5] Bennett v Hucke Index No. 07- 10 13 1 r- agc~o 5 claims against them under Labor Law 55240 and 241(6) by demonstrating that the subject premises was a one-family dwelling used primarily for residential purposes, and that neither of them directed or controlled Bennett s work (see Bartoo v Buell, supra; ,Kliela v Neiger, 85 NY2d 333, 624 NYS2d 566 [1995]; Cnstellanos v United Cerebral Palsy Assn. of Greater Suffolk, Inc., 77 AD3d 879, 909 NYS2d 757 [2d Dept 201 01: Unianzor v Charles Hofer Painting & Wallpapering, Inc., 48 AD3d 552,852 NYS2d 205 [2d Dept 20081). Significantly, the Huckes submitled evidence that they relied upon the Kirks to supervise the work of the subcontractors, and that their supervisory role, if any, was general and limited to giving instructions about the aesthetic design of the premises and paying for labor and building materials (see C/towd/ziity v Rodriguez, 57 AD3d 121, 128, 867 NYS2d 123 [2d Dept 20081; Decavallas v Pappantoniou, 300 AD2d 61 7, 61 8, 752 NYS2d 712 [2d Dept 20021). It is not a defendant s title that is determinative, but the degree ofcontrol or supervision it exercised (see Rodriguez v JMB Architecture, LLC, 82 AD3d 949,95 1, 91 9 N Y S2d 40 [2d Dept 201 11). Additionally, the Huckes testified that the remodeling of the premises was for residential purposes only, and that any alleged commercial use of the premises was ancillary to the residential purpose of the home (see Umanzor. v CIzarles Hofer Painting & Wallpapering, Znc., supra; Puttiam v Knraco Indiis. Corp., 253 AD2d 457, 676 NYS2d 651 [2d Dept 19981; c j Krukowski v Stcrensen. 194 AD2d 179, 605 NYS2d 773 [2d Dept 19931). 1 lie Huckes also established their prima facie entitlement to summary judgment dismissing plaintiffs common law negligence and Labor Law 9200 claims by demonstrating that they did not have the authority to supervise or control Bennett s work at the time of the alleged accident (see Rizzuto v L.A. Wenger Contr. Co., Inc., s i i p i x i ; Ortegn v Puccia, supra; Gray v City oflvew York, 87 AD3d 679,928 NYS2d 759 [2d Dept 201 11; w e ulso Circostn v 29 Washington Sq. Corp., 2 NY2d 996, 163 NYS2d 61 1 [1957]), and that they neither created nor had actual or constructive notice of any alleged defective or dangerous condition on the premises (see Ortegn v Prrccin, s z q ~ u ; Azad v 270 Realty Corp., supra; Clzowdlzury v Rodriguez, supra; Duarte v East Hills Constr. Corp., 274 AD2d 493,711 NYS2d 182 [2d Dept 20001). Where a premises condition is at issue, an owner or contractor may be held liable for a violation of Labor Law 5 200 if it either created the dangerous condition or had actual or constructive notice of its presence (seeKuffour v Whitestone Const. Corp., 94 AD3d Realty Corp., 46 AD3d 728,730,848 NYS2d 688 [2d Dept 706,941 NYS2d 653 [2d Dept 2 0 1 2 ] ; A z a d v 2 7 0 20071: C / i o w d l r i ~ q ~ v Rodriguez, supra; Kehoe vSegal, 272 AD2d 583,709 NYS2d 8 17 [2d Dept 20001). By contrast, when a claim arises out of alleged defects or dangers in the methods or materials ofthe work, recovery against the owner cannot be had under Labor Law 9 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (see Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343,352.670 NYS2d 816 [ 19981; Russin v Louis N. Picciano & Son, 54 NY2d 3 1 1 , 3 17,445 NYS2d 127 198 11; Ortegn v Puccia, supra). In opposition, plaintiff failed to raise a triable issue warranting denial of the motion (see Alvarez v Prospect Hosp.. 68 NY2d 320,324,508 NYS2d 923,925 [ 19861). The cost of the renovation prqject and the IHuckes incidental use of the premises as a location to store commercial vehicles, documents or equipment related to their mobile disc jockey business, does not vitiate the Huckes primary use of the building as a residence (see Putnuin v Karaco Indus. Corp., supra; Telfer v Gunnison Lakehouse Orchards, 245 AD2d 020,664 NYS2d 493 [ 19971; Krukopwski v Steflensen, 194 AD2d 179,605 NYS2d 773 [2d Dept 19931) and their mere retention ofthe limited power of geneyal supervision [over the project], do not constitute direction or control as those terms are used in the [Labor Law] (Decavallas v Pappantoniou, 300 AD2d 61 7,618,752 NYS2d 712 [2d Dept 20021; see Clzowdlzury v Rodriguez, supra ut 128). Moreover, the Huckes did not [* 6] Bennett v Hucke Index No. 07- 1013 1 Page No. 6 become the general contractor for the project responsible for enforcing safety standards by virtue ofthe fact that they hired separate contractors to perform different aspects of the project (see Ferrero v Best Modular Homes. Inc., 33 AD3d 847,823 NYS2d 477 [2d Dept 20061; Rodas v Weissberg, 261 AD2d 465,466,690NYS2d 116 [2d Dept 19991). Even assuming arguendo that the accident occurred because of a dangerous condition at the worksite, plaintiffs failed to submit any evidence that the Huckes had actual or constructive notice of any such condition (see Tomecek v Westcltester Additiorvts & Renovations, Inc., 97 AD3d 737, 948 NYS2d 671 [2d Dept 20 121: Clioovdhury 1 Rodriguez, supra). Accordingly, the branch of the motion by the Huckes seeking, inter alia, sumniary judgment dismissing the Labor Law and common law negligence claims asserted against thcm is granted. Although tlie Huckes initial motion failed to address the second cause of action in the complaint predicated upon their alleged failure to procure Workers Compensation insurance on behalf of Bennett, for tlie sake ofjudicial economy, the Court will now address their subsequent cross motion seeking dismissal of the cause of action. While parties are generally discouraged from making successive summary judgment motions i n the absence of a showing of newly discovered evidence or other sufficient cause (see Tolpygina v Teper, 63 AD3d 722 ,880 NYS2d 326 [2d Dept 2009]), a court may entertain a subsequent summary judgment motion. where, as here, it is substantively valid and the granting of the motion will further the ends ofjustice while climinating an uiinccessary burden on the iresources of the courts (Detko vMcDonald s Rests. of N. Y., 198 AD2d 208,209,603 NYS2d 2d 496,497 [2d Dept 19931, lv denied 83 NY2d 752, 61 1 NYS2d 134 [ 19941; see 111.~0Volley Natl. Bank v INIHolding, LLC , 95 AD3d 1108, 945 NYS2d 97 [2d Dept 20121). An esscntial requirement for protection under the Workers Compensation Law is the existence of an eiiil- loyer/eiiiployee relationship between the injured worker and the purported employer (Workers Compensation Law $9 10 and 11; see general/ O Rourke v Long, 41 NY2d 219, 214, 391 NYS2d 553 [ 19761). Scction 10 of the Workers Compensation Law provides, in pertinent part, that [elvery employer sulject to this chapter shall . . . secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment without regard to fault. I ursuant to section 1 1 of the Workers Compensation Law, where an employer fails to obtain workers compcnsation insurance on behalf of his/or her employees, such employee possesses the option either to sue for tlic damages sustained as a result of the injury, or to seek the benefits provided under the Workers Compensation Law (see Mutter of2at.z vMoscovici, 258 AD2d 850, 686 NYS2d 167 [3d Dept 19991). If a court action is commenced, tlie employee must prove that the employer did not maintain coverage as required by sections 10 and 50 of the Workers Compensation Law (see Martin Minkowitz, Practice Commentaries, McKinncy s Workers Compensation Law 5 1 1). Moreover, an employee who exercises hidher option to seek compensation in n plenary action must demonsirate negligence on the part of the employer (see Morgan v Rohochev. 2 AD2d 637, 151 NYS2d 836 [1956]). A person may be deemed to have more than one employer for purposes of the Workers Compensation L,aw, a general employer and a special employer (Sclzramm v Coldspring Harbor Lab., 17 AD3d 661,662,793 NYS2d 530 [2d Dept 20051, quoting Thompson v Grumman Aerospace Corp., 78 NY2d 553, 578 NYS2d 106 [1991]). General employment is presumed to continue, but this presumption is okercoiiie upon clear demonstration ofsurrender of control by the general employer and assumption ofcontrol b y thc special employer (Tltompson v Grumman Aerospace Corp. ,supra at 557; Samuel v Fourtlt Ave. /lissoc., 75 AD3d 594, 906 NYS2d 67 [2d Depi. 20101). While no one factor is determinative in deciding [* 7] Bennett v Huche Iiidex No. 07-10131 Page No. 7 whether or not ;I special employnient relationshiip exists, a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee s work (Tl~onipson Grirniman Aerospace Corp., supra at 558). Other relevant factors include who is responsible v lhr the payment ofjvages, who furnishes the worker s equipment, who had the right to hire and discharge the worker. and whether the work being performed was in furtherance of the special employer s or the general employer s business (see Pena v Automatic Data Processing, 75 AD3d 724, 900 NYS2d 393 [2d Dept 20101). A person s status as a special employee is generally a question of fact, but may be determined as a matter of law where particular undisputed critical facts compel the conclusion that there is no triable issue of fact ( w e Thonipson v Grumman Aerospace Corp.,supra;Pena v Automatic Data Processing Inc.,supra; Slikns I Cvclone Renlty, 78 AD3d 144, 908 N Y S2d 117 [2d Dept 20101; Franco v Kaled Mgt. Corp., 74 AD3d I 142,903 NYS2d 5 12 [2d Dept 20101; Nveitz vAnzek Constr. Corp., 65 AD3d 678,885 NYS2d 314 12d Dept 20091). Here, the I Iuckes established, prima facie. that they were not required to secure Workers Compensation insurance on behalf of Bennett since they were not his general or special employers at the time of the alleged accident (see Workers Compensation Law $9 10 and 1 1 ; see also Thompson v Grumman Aerospace Corp., ~z1prc1; Schweitzer v Tliompson & Norris Co., 229 NY 97, 127 NE 904 [1920]; Gonzalez v Woodbourne Arborefirm, I I I C .100 AD3d 694,954 NYS2d 1 13 [2d Dept 20 121; compare Cfzarleboisv Brockwuy, 209 AD2d , 798, 61 8 NYS2d 478 [3d Dept 19941). Significantly, it is undisputed that third-party defendant J. Bennett Building Inc. was Bennett s general employer, and that it was not engaged in a joint venture with the Huckes at time ol the alleged accident. Moreover, the Hiickes submitted undisputed evidence that they did not supply Bennett s equipment or directly pay his wages, iind that they never assumed control or directed the manner, details and ultimate result of his work. I n opposition, plaintiffs failed to raise any triable issue warranting denial of tlie motion (see AIvarez v Prospect Hosp., sz~prn). Indeed, plaintiffs concede that Bennett was not employed by the Huckes at the time ol the alleged accident. Rather, plaintiffs contend that the Huckes, as owners of the worksite, are somehow among a class of people who were responsible for securing compensation on behalf of Bennett. However, plaintifl s failed to reference any specific provision of the Workers Compensation Law in support of their 191 contention, and the single case cited by them, Matter ofSimmons V M O S S , AD2d 944,595 NYS2d 261 [3d I k p t 19931, is distinguishable, as it involved a baby sitter working in excess of forty hours per week who betielitled from the protection provided to domestic workers under section 3 of the Workers Compensation l a v . Fiirtherniore, plaintiffs failed to demonstrate that any alleged violation of section 57 of the Workers Compensation Law or section 125 of the General Municipal Law, which prohibit the issuance of building permits to uninsured applicants, creates a private cause of action against a purported homeowner. The Huckes, thercfore. are entitled to summary judgment dismissing plaintiffs second cause of action against them. Inasmuch as tlie Huckes have been granted summaryjudgment dismissing the common law and statutory claims against them, the branch of their motion seeking dismissal of Tracey Bennett s derivative claim for loss of serliccs and tlie reimbursement of medical fees also is granted. The Huckes, likewise, are entitled to sntiimaryjud~tiiciit dismissing the cross claims against them by the Kirks and Andrew Percoco for contribution and indeniiiification (see e.g. Tonzecek v WestChester Additions Ce Renovations, Inc., 97 AD3d 737, 948 NYS2d 671 [2d Dept 20121; Gittins vBnrbarin Corzstr. Corp., 74 AD3d 744,902 NYS2d 613 [2dDept 20101). Additionally. where, as here, the Huckes have been granted summaryjudgment dismissing plaintiffs Labor Law [* 8] Bennett v Huche I I I ~ C XNO. 07- 10 13 I Page No. 8 and common law negligence claims, the cross motion by plaintiffs for an order striking the Huckes affirmative defense to those claims based upon section 1 1 ofthe Workers Compensation Law has been rendered academic, and is denied. I n any event, the Huckes have submitted a copy of a letter they sent to plaintiffs attorney indicating that they are voluntarily withdrawing the affirmative defense. 117 light of the foregoing, plaintiffs motion seeking partial summary judgment 011 the issue of liability against the Huckcs is denied, as moot. Likewise, plaintiffs request for the imposition of a Noseworthy preference is denied, as plaintiffs failed to provide the requisite expert testimony in support of their application (see Smwjw I! Dreis & Krump Mfg. Co., 67 NY2d 328, 502 NYS2d 696 [1986]; Wahid v Long Is. R.R. Co., 59 AD3d 71 2, 873 NYS2d 738 [2d Dept 20091). Finally, the motion by plaintiffs for an order disqualifying Schondcbare & Korcz, Esqs. as attorneys for the Huckes is denied. The disqualification of an attorney is a matter that rcsts solely in the discretion of the trial court (see Boyd v Trent, 287 AD2d 475, 73 1 NYS2d 209 [2d Dept 2001]), and a client s right to the counsel of its own choosing is an invaluable right that should not be tampered with unless a clear showing of disqualilication has been made (S & S Hotel Ventures Ltd. v 777S.H. Coup.. (79 NY2d 437,5 15 NYS2d 735 [ 19871). The burden is on the proponent of disqualification to make that showing (see Lipslzitz v Stein, 65 AD3d 577, 884 NYS2d 442 [2d Dept 20091; Petrossian v Grossman, 219 ,41)2d 587. 63 1 NYS2d 187 [2d Dept 19951). Here, plaintiffs failed to meet their prima facie burden on the motion. as their asscrtioiis regarding the alleged existence of a conflict of interest between the interests of the Huckes attorney and the interests of their insurer are based on mere speculation (see JafirlnicaPublic Service Co. Ltd v A I U I n s . Co., 92 NY2d631, 684NYS2d4.59 [1998];S& SHotel VerzturesLtd. v 777S.H. Corp., ) i i p m Olnioz v Torvn o Fishkill, 258 AD2d 447, 684 NYS2d 61 1 [2d Dept 19991). f The foregoing constitutes the Order of this Court. Dated: April 1,2013 Riverhead, NY HOh. HECTOR D. LASALLE, J.S.C. FINAL DISPOSITION X NON-FINAL DlSPOSITION

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