Millan v Montauk Prop., L.L.C.

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Millan v Montauk Prop., L.L.C. 2013 NY Slip Op 31103(U) May 15, 2013 Sup Ct, Suffolk County Docket Number: 09-36748 Judge: Jerry Garguilo 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. 09-36748 SHORT FORM ORDl R SUPREME COURT - STATE OF NEW YORK I.A.S. P14RT 4 7 - SUFFOLK COUNTY PRESENT: Hon. MOTION DATE 12-27- 12 ADJ. DATE 2-20- 13 Mot. Seq. # 003 - MG JERRY GARGUILO Justice of the Supreme Court BORDA, KENNEDY ALSEN & GOLD, LLP Attorneys for Plaintiff 1805 Fifth Avenue Bay Shore, New York 11706 JOSE MILLAN. Plaintiff, - against - MONTAUK PROPERTIES, L.L.C., G. FORTE CONSTRUCTION CO., INC., and MARTIN0 PIZZERIA, INC. d/b/a MAMA S RES TAU RANT, [ Defendants. NICOLINI, PARADISE, FERRETTI & SABELLA, PLLC Attorneys for DefendantlSecond Third-party Plaintiff G. Forte Construction 114 Old Country Road, Suite 500 Mineola, New York 1 150 1 X MONTAUK PROPERTIES, L.L.C. and MARTIN0 PIZZERIA, INC. d/b/a MAMA S RESTAURANT, Third-party Plaintiffs, - against ; j BELLO & LARKIN Attorneys for Defendant/Third-Party Plaintiffs Montauk Properties and Martino Pizzeria 150 Motor Parkway, Suite 405 Hauppauge, New York 1 1788 EDWARDS WILDMAN PALMER, LLP Attorneys for Defendants CVS Albany and Hook Superex, LLC 1 1 1 Huntington Avenue Boston. MA 02199 - CVS PHARMACY, INC. Third-party Defendant, X G . FORTE CONSTRIJCTION CO., INC., MCANDREW, CONBOY & PRISCO, LLP Attorneys for Defendants CVS Albany and Hook Superex, LLC 1860 Walt Whitman Road - Suite 800 Melville, New York 1 1747 Second Third-Party Plaintiff. - against - C VS PIIARMACY. INC Second Third-party Defendant. X [* 2] MONTAIJK PROPERTIES, L.L.C. and MARTINO PIZZERIA, INC. d/b/a MAMA S RESTAURANT. Third Third-party Plaintiffs, - against - CVS ALBANY. L I L and HOOK-SUPEXX, LLC, / Third Third-party Defendants. ! Upon the following papers numbered 1 to 3 read on this motion for summary judgment ; Notice of Motion/ Order 4 to Show Cause and supporting papers 1 - 20 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 2 1 - 28; 29 - 30 ; Replying Affidavits and supporting papers 3 1 - 34 ; Other -; p ) it is, ( w ORDERED that the motion by third-party defendant CVS Albany, LLC, for, inter alia, summary judgment dismissing the third-party comp, aints and cross claims against it is granted; and it is ORDERED that the court, upon its own motion, searches the record pursuant to CPLR 3212(b) and awards third-party defendant Hook-Superx, LLC, summary judgment dismissing the third-party complaint and the cross claims against it. Plaintiff Jose Millan commenced this action to recover damages for personal injuries he allegedly sustained on April 28, 2008, while working on the renovation and expansion of a pizzeria located at 922 Merrick Road. Copiague, New York. The pizzeria is owned and operated by defendant Martino Pizzeria, d/b/a Mama s Restaurant. Plaintiff, who was in the process of installing a sprinkler system for the pizzeria, allegedly injured himself when the ladder he was climbing unexpectedly slid, causing him to fall to the floor. At the time of the accident plaintiff was employed by non-party BK Engineering, a subcontractor hired by defendant G. Forte Construction Company ( Forte ), the general contractor for the prqject. Defendant Montauk Properties, LLC, is the owner of the strip mall where the pizzeria and other businesses are located. By way of hi:; amended complaint, plaintiff alleges causes of action against the defendants for common law negligence, premises liability, and violations of Labor Law $5 200, 240 ( l ) , and 231(6). On or about August 10, 20 1 1, Mamt3 s Restaurant and Montauk Properties (herein jointly referred to as Montauk ) impleaded CVS Albanj., LLC, i/s/h/a CVS Pharmacy, Inc. ( CVS ), the tenant ol the adjoining retail space, as a third-party defendant to the action. Montauk alleges, inter alia, that the accident occurred in C VS s rear stock room where a water valve necessary for the completion of plaintiff s u o r h u a s located. The third-party complaint contains claims for contribution and common law and contractual indemnification. In September 201 1 , Forte also commenced a second third-party action against C V S containing similar claims and allegations. Following commencement of the second third-party action, Montauk filed a fourth third-party action, which names CVS and the predecessor to its lease agreement, Hook-Superx, LLC, as defendants to the action. CVS joined the third-party complaints asserting a general denial, affirmative defenses. and counterclaims against the third-party plaintiffs for common law and contractual indemnification, contribution, and breach of contract. [* 3] Millan v Montauk Properties hides No. 09-36748 Page No. 3 C VS n o b moves for, inter alia, summary judgment dismissing the third-party complaints and cross claims against it on the grounds it neither possessed nor controlled the area where the accident allegedly occurred, and it did not exercise any supervisory authority over plaintiffs work or safety since it was not an owner, general contractor or statutory agent at the time of the alleged accident. In opposition, Montauk argues that the motion is premature, since CVS failed to produce any witnesses possessing knowledge of its management and operations on the day of the subject accident. Montauk further avers that CVS failed to meet its prima facie burden on the motion, as deposition testimony by plaintiff s supervisor and the owner of the pizzeria raises a triable issue as to whether the accident occurred inside of CVS s stock room rather than the pizzeria. The motion also is opposed by Forte, which adopts the arguments and evidentiary support set forth in Montauk s opposition papers. At his examination before trial, plaintiff testified that no one other than his supervisor controlled his work at the time of the accident. Plaintiff testified that he brought his own tools and safety equipment, including the ladder, to the worksite. Plaintiff testified that the accident occurred as he and his partner, who were each holding oppos te ends of a long metal pipe, were climbing their respective ladders to place the pipe on hangers that were already installed on the ceiling. He testified that his ladder slid beneath him and caused him to fall to the floor as he got to the tenth rung of the ladder. He further testified that he was working on the right side of the restaurant at the time of the accident, and that he had leaned his unopened A-frame ladder against the sheet rack wall rather than opening up the ladder for support. At his examination before trial, plaintiffs supervisor, Patrick Scala, testified that plaintiff was his lead foreman on the project, and that he was one of two employees of BK Engineering working at the site at the time of the accident. Mr. Scala lestified that the project entailed the renovation and expansion of the pizzeria into the retail space previously occupied by another tenant. He testified that he visited the worksite once or twice per week, and that on those occasions he would inspect plaintiffs work and discuss the progress of the project with Forte s foreman. Mr. Scala testified that plaintiff and his partner were required to run a pipe connecting the fire water main from the street through CVS s stock room located at the back of the building, because CVS did not want the water main to be placed directly in its store. He testiiied that there was no ceiling in the stock room and that the walls consisted of cinder blocks. Mr. Scala further testified that someone, perhaps plaintiffs partner at the worksite, informed him that the accident occurred in CVS s stock room rather than the inside the pizzeria. He also testified that he could not confirm whether the accident occurred in the stock room or some other part of the premises. Article 15 of CVS s lease agreement with Montauk, entitled Access by Landlord. states, in pertinent part. as follows: L.andlord may ha\ e free access to thc Premises at all reasonable times for the purpose of examining same or making any alterations or repairs required by Article 10 or which the idandlord may deem necessary for i1s safety or preservation. Article 33 of the lease agreement further prcvides that: [* 4] Millan Montauk Properties Index No. 09-36748 Page No. 4 Tenant shall, during the entire term hereof , keep in full force and effect a policy of public liability and property damage insurance with insurance with respect to claims arising from the use. and occupancy of the Premises by Tenant . . , A certificate reflecting such insurance coverage and designating Landlord as insured thereunder shall be delivered to Landlord upon request therefor. 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 eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr, 64 NY2d 851,487 NYS2d 316 [1985]; Andre vPomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). The burden will then shift to the nonmoving party to demonstrate that there are material issues of fact, however, mere conclusions and unsubstantiated allegations are insufficient to raise such triable issues (see Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [ 19801; Perez v Grace Episcopal Church. 6 AD3d 596,774 NYS2d 785 [2d Dept 20041). Generally, Labor Law $ 5 200, 240, and 241 apply to owners, general contractors, or their agents (Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593, 916 NYS2d 147 [2d Dept 20 1 11). A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has the ability to control the activity which brought about the injury (Walls v Turner Constr. Co., 4 NY3d 861, 863-864,798 NYS2d 351 [2005]: see Russin v Louis N. Picciano & Son, 54 NY2d 3 11, 445 NYS2d 127 [ 198 11). The term owner within the meaning of article 10 of the Labor Law encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit (Za1ier v Shopwell, Inc., 18 AD3d 339, 339-340, 795 NYS2d 223 [ 1 st Dept 20051, quoting Copertino v Ward, 100 AD2d 565,566,473 NYS2d 494 [ 19841). The statute may also apply to a lessee,where the lessee has the right or authority to control the work site, even if the lessee did not hire the general contractor (Zaher v Shopwell, Inc., supva, 339-340, 795 NYS2d 233: see Bart v UniversalPictures, 277 AD2d 4, 715 NYS2d 240 [lst Dept 20001). However. the key criterion in determining whether a lessee should be held liable under the statute is whether it had the authority to insist that the plaintiff follow proper safety procedures while performing his work ( w e Ferliickaj v Goldman Sachs & Co., 12 NY3d 3 16, 880 NYS2d 879 [2009];Guclu v 900 Eiglitli Ave. Conrlominium, LLC, ~ u p r aGrilikltes v Internritionril Tile & Stone Show Expos, 90 ; AD3d 480, 934 NYS2d 384 [lst Dept 201 I]; Bart v Universal Pictures, supra). Here. CVS established its prima facie entitlement to summary judgment dismissing the thirdparty complaints and cross claims against it by submitting evidence that it was not an owner, general contractor or statutorq agent. and that it did not possess supervisory authority over plaintiff s work such that it had the right to insist that he followed proper safety practices while performing his work (see Ferliickaj v Goldman Sachs & Co., ~ipru; Allan v DHL Express (USA), Iiic., 99 AD3d 828, 952 h YS2d 275 [2d Dept 20121; Guclu v 900 Eiglifli Ave. Condominium, LLC, supva; Gvilikhes v Internationrrl Tile & Stone Show Expos, s u p n ; Guzman v L.M.P. Realty Corp., 262 AD2d 99, 691 N Y S X 483 (1st Dept 19991). Significantly, plaintiff testified that no one other than Patrick Scala controlled or supervised his work at the time of the alleged accident. Moreover, it is undisputed that [* 5] Millan v Montauk Properties Index No. 09-36748 Page No. 5 CVS was not the owner of the premises and did not act as Montauk s agent for the project. Indeed, C VS s lease agreement specifically granted Montauk free access to the stockroom for the purpose of making alterations such as the installation of the fire sprinkler system, and it did not obligate or authorize CVS to inspect the safety procedures followed during such work (cfBart v Universal Pictures, r~4prci;Coprrtino v Ward, supra). Additionally, CVS submitted evidence that it was not contractually obligated to indemnify Montauk or its contractors for any injuries arising from performance of the work, as there was no such requirement in its lease and it did not enter any other agreement with Montauk relating to the expansion of the pizzeria or the installation of the sprinkler system (see Araujo v City of New York, 84 AD3d 993, 922 NYS2d 806 [2d Dept 201 11; O Berg v MacManus Group, Inc., 33 AD3d 599, 822 NYS2d 306 [2d Dept 20061; Lipslzultz v K & G Indus., 294 AD2d 338, 742 NYS2d 90 [2d Dept 20021). Further, where, as here, it did not provide plaintiff the defective ladder and the accident arose from alleged defects or dangers in the methods or materials of the work rather than the existence of a defective premises condition, CVS cannot be held liable under the theories of contribution and/or common law indemnification (see Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343,352,670 NYS2d 816 [ 19981; Raquet v Braun, 90 NY2d 177,659 NYS2d 237 [ 19971; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 516 NYS2d 451 [1987]; Ortega v Puccia, 57 AD3d 54,866 NYS2d 323 [2d Dept 20081; w e also Arteagn v 231/249 W 3 9 St. Corp., 45 AD3d 320, 847 NYS2d 5 [lst Dept 20071). In opposition, Montauk and Forte failed to raise any significant triable issues requiring denial of the motion (see Alvcrrez v Prospect Hospital, supra; Zuckerman v City of New York, supra). The deposition testimony by Patrick Scala stating that another worker informed him the accident occurred in CVS s stock room is insufficient for the purpose of raising a triable issue, as it constitutes hearsay evidence. Although such evidence may be considered in opposition to a motion for summary judgment, i t will not bar summary judgment if it is the only evidence submitted to prove the truth of the matter asserted ( w e Nrrrvaez v NYRAC, 290 AD2d 400. 737 NYS2d 76 [lst Dept 20021; Guzman v L.M.P. Rral[v Corp., .\upr~/; Thomas v Our Lady of Mercy Med. Ctr., 289 AD2d 37, 734 NYS2d 33 [Ist Dept 200 11). Moreover, even assuming, arguendo, that the alleged accident occurred inside CVS s stock room, CVS cannot be held liable for plaintiffs injuries since it neither contracted to have the work performed nor possessed the authority to control plaintiff s work or safety procedures (see Allan v DHL Expresh (USA), Inc.. ,sipu; Guclu v 900 Eiglrtlr Avr. Condominium, LLC, ~ u p u ) . Furthermore, Montauk failed to demonstrate that facts essential to opposing the motion are ithin the exclusive Imowledge and control of CVS (see CPLR 32 12[fl; Martinez v Kreychmar, 84 AD3d 1037.923 NYC2d 648 [2d Dept 201 I]; Cnvitcli v Mnteo, 58 AD3d 592.871 NYS2d 372 [2d Dept 20091). and the inere hope or speculation that evidence sufficient to defeat a motion for summary iudgmeiit mal be uncovered by further discovery is an insufficient basis for denying the motion ( Woodard v T/iomns. 77 AD3d 738, 740, 91 3 NYS2d I03 [2d Dept 20101; lee Conte v Frelen ASSOC., LL C, 5 I AD3d 620, X58 NYS2d 258 [2d I k p t 20081) Therefore. the motion by third-party defendant C VS Albanj. 1 C. for, inter alia. summary judgment dismissing the third-party complaints and cross , 1 claims against it is granted. Inasmuch as CVS s lease predecessor, third-party defendant Hook-Superx. was neither in possession of the subject premises nor contractually obligated to supervise plaintiffs \I [* 6] hlillan v Moritauk Properties Index No. 09-36748 Page No. 6 safety procedures or indemnify Montauk for his injuries, the court, upon its own motion, searches the record and awards it summary judgment dismissing the third-party complaint and cross claims against it. Dated: FINAL DISPOSITION X NON-FINAL DISPOSITION

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