Zamboli v Pedersen

Annotate this Case

Download PDF

Zamboli v Pedersen 2013 NY Slip Op 31994(U) August 22, 2013 Sup Ct, Suffolk County Docket Number: 11-28478 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] COPY INDEX NO. CAL. No. 1 1-28478 13-00170OT SUPREME COURT - STATE OF NEW YORK I.A.S. PART 47 - SUFFOLK COUNTY PRESENT: Hon. JERRY GARGUILO Justice of the Supreme Court ............................................................... X LOUIS ZAMBOLI and LISA ZAMBOLI, Plaintiffs, . against . CONNIEANN PEDERSEN, DREAM LAND BUILDERS. INC., AND SHIRLEY PLUMBERS, INC.. MOTION DATE 3-12-13 (#OO1) MOTION DATE 4- 1 7- 13 (#O02) ADJ. DATE 5-15-13 Mot. Seq. # 001 - MD # 002 - MG PALERMO, PALERMO & TUOHY, P.C. Attorney for Plaintiffs 1300 Veterans Highway, Suite 320 Hauppauge, New York 1 1788 DEVITT, SPELLMAN, BARRETT, LLP Attorney for Defendants Pedersen & Dreamland 50Route 111, Suite314 Smithtown, New York 11787 BAXTER SMITH & SHAPIRO, P.C. Attorney for Defendant Shirley Plumbers 99 North Broadway Hicltsville, New York 1 1801 IJpori the following papers numbered 1 to 59 read on this motion and cross motion for summary iudgment ; Notice o f Motion#Order to Show Cause and supporting papers I - 21 ; Notice of Cross Motion and supporting papers 22 - 38 ; Answering Affjdavits and supporting papers 39 - 45; 46 - 47; 48 - 5 1 ; 52 - 53 ; Replying Affidavits and supporting papers& 55; 56 - 59 : Other Plaintiffs Memorandum of Law; ) it is, ( m ORDERED that the motion by plaintiffs Louis Zamboli and Lisa Zainboli for summary jiidginent in h e i r fa\ o r on the issue of liability on their Labor Law 3240(1) claiin is denied: and it is ORDERED that the cross motion by defendant Shirley Plumbers. 1nc. for suinimary judgment dismissing the compliiint against it is granted. Zainboli commenced this action to recox er damages for personal Injuries Plciintif'f LOLUS allegcdl~5ustained o n June 13. 201 1. while he was performing excavation services on a premises lcxatcd at 595 Sleep! Ilollou Drive. Shirleq. Neu York. Plaintiff' allegedly was injured when his right [* 2] Zaniboli Pederseii 111de~ ho.11-28478 Page N o 2 hand and arm MWC struck by a limb he was attempting to cut from a tree situated in the backyard of the subject premises. At the time of the accident, the premises was owned by defendants Connieann Pedersen and Ilreani Land Builders, Inc. ( Dream Land ), which purchased the property for the purposes olreno\,ation and resale. Plaintiff allegedly was hired as a subcontractor by John Pedersen, one of the principals of Dream Land, to remove shrubs, excavate land, and build the foundation for an extension of the premises. John Pedersen also is the owner of defendant Shirley Plumbers, Inc. ( Shirley Plumbers ), uhich allegedly served as the general contractor for tlie renovation project. By way of his complaint, plaintiff alleges causes of action against defendants for common law negligence, premises liability, and Liolations of Labor Law $ $ 200, 240 ( l ) , and 241(6). The complaint also asserts a claim by plaintiffs wife, Lisa Zamboli. for loss of consortium and reimbursement of medical expenses. The defendants joined issue and asserted affirmative defenses and cross claims against each other for contribution and i ndenin i tic at i on, Plaintiffs now move for summary judgment on their Labor Law $240 claim, arguing that defendants, who purchased the Sleepy Hollow Property solely for commercial purposes, failed to provide him with any safety devices designed to protect him from the falling tree limb. The motion is opposed by Shirley Plumbers, which cross-moves for summary judgment dismissing the complaint and cross claims against it on the grounds it was neither the owner nor general contractor for the renovation pro-ject, and did not possess the authority to control or supervise plaintiffs work. Plaintiff opposes the cross motion on the basis triable issues exists as to whether Shirley Plumbers and Dream Land acted as one entity with respect to all the work he performed at the worksite, and, if so, whether they possessed supervisory authority over his work at the time of the accident. At his examination before trial, plaintiff testified that the accident occurred approximately two months after he was finished building the foundation for the extension of the premises, when, at John Pedersen s request, he returned to grade the land located at the back of the property. Plaintiff testified that he had to remove a tree, growing approximately 15 feet from the back of the building, before he could grade the land in question. He testified that Mr. Pedersen asked him to climb into the bucket of an excavator located at t:he back of the premises and use a chainsaw to cut away some of the limbs located near the top of the tree. He testified that Mr. Pedersen lifted him approximately 25 feet high while he \vas standing in the bucket of the excavator, and that he was cutting a limb on the tree when it broke and hit the excavator. Plaintiff testified that the weight of tlie falling limb caused the excavator to tilt f(>rward.aiid that a part of the limb landed on his hand and arm when he grabbed a piston connecting the bucket in \\diicli he was standing to tlie excavator. He further testified that he managed to pull his hand and shodder ti-om beneath the tree limb. and that he instinctively jumped from the bucket to the ground. Pedersen had ownership interests in both Shirley Plumbers and t laintilf testitied he was aware that MI-. Ilreani I.aiid. and that on at least one pre\,ious occasion Mr. Pedersen paid him with a check issued by Sliii-le! Plumbers for demolition work he performed during a pre\rious project they worked on together. I Je liirther testified that he only performed work on behalf of Dream Land while working at the subject premises, that lit. o n l ~received payment for the earlier excavation and landscaping activities he , Imfbrmcci during the project, and that such payment was made by it check issued to him by Dream Land. At hei- euamination before trial, Connieann Pedersen testi tied that the purchase of the subject [* 3] premises was a Joint \.enture between herself and Dream Land. She testified that she was working as a receptionist fhr Shirley Plumbers at the time of the alleged accident, and that she was aware that Shirley Plumbers only perhrmed heating and plumbing services on the interior of the subject premises during the reno\!ation project. Mrs. Pedersen testified that she did not know whether Shirley Plumbers was performing an\ \YO& on the premises on the day of the accident. and, if so, whether it hired plaintiff as a subcontractor to perform any of its work. At his examination before trial, John Pedersen testified that at the time of the accident Shirley Plumbers on]!, had two other employees, Connieann Pedersen and James Cottone. He testified that he had a 50 % ownership interest in Dream Land and that he was the sole owner of Shirley Plumbers. Mr. Pedersen testified that both companies would hire subcontractors to perform construction and plumbing related activities. and that plaintiff was hired by Dream Land as a subcontractor for the renovation project. He further testified that plaintiff did not perform any work on behalf of Shirley Plumbers during the project. Mr. Pedersen testified that plaintiff completed the foundation for the extension of the premises approximately 30 days before the alleged accident, and that the construction of the extension, including the framing, the installation of the siding and the roof, was complete. He also testified that plaintiff had volunteered to perform the grading of the backyard and the tree removal free of cost following a dispute between the men regarding plaintiffs willingness to perform the work. Mr. Pedersen testified that it was plaintiff who suggested that he be lifted in the bucket of the excavator to cut down limbs located near the top of the tree, and that plaintiff assured him that it was unnecessary to hire a professional to remove the tree. Mr. Pedersen testified that neither the grading of the land nor the removal of the tree at the back of the premises were performed on behalf of Shirley Plumbers, and that such tasks were in no way related to any of its work during the project, He further testified that Shirley Plumbers did not perform any work at the premises on the day of the alleged accident, that it did not own any of the equipment used by plaintiff during the attempted tree removal, and that its work on the premises was limited to renovation of the interior plumbing and heating. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgtncnt as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see iilvnrez v Prospect Hospitnl. 68 NY2d 320, 508 NYS2d 923 [ 19861; Winegmd v New York Univ. Med. Center. 64 NY2d 8 5 1 , 487 NYS2d 3 16 [ 19851; Andre 1 Pomeroy, 35 NY2d 361, 362 NYS2d I 3 1 [ 1 7 . The burden will then shift to the nonmoving party to demonstrate that there are material issues 011 oflict: h o ~ i er. mere conclusions and unsubstantiated allegations are insufficient to rai y e any triable e~ i w i m offact ( ,ee Zuckervlznn v City o f N e w York, 49 NY2d 557. 427 NYS2d 595 [1980]; Perez v Gr(tce Episcopl Cltiirclt, 6 AD3d 596. 774 NYS2d 785 [2d Dept 20041). Section 34Oj I ) of the 1,abor Law is liberally construed to accomplish the purpose for which i t li)riiied. that is to protect workers bq, placing the ultiinate responsibility for safety practices where such responsibility belongs. on the owner and general contractor or their agent instead of on workers, ~ ~ are scarcely i n a posi tion to protect themselves from accident (Rocovicli v Consoliduterl Edisoti h o Co.. 78 N Y X 509. 51 3, 577 NYS2d 219 [1991],qiioting Komig v Patrick Constr. Corp., 298 NY 313. 1.) I 83 N E 2d 133 19481). A party is deemed to be an agent of an owner or general contractor under the Labor L a n when the party has supervisory control and authority over the work being done and can ai~oid r correct the iuisafe condition (Linkowski v City o New York. 33 AD3d 971, 974-975. 824 o f ;IS [* 4] YYS2d 109 [ 2d I k p t 20061.5c.r Rodriguez v JMB Architecture, LLC, 82 AD3d 949, 95 1 , 919 NYS2d 40 [2d I k p t 201 1 I ) It is not the defendant s title that is determinative, but the degree ofcontrol or super\ isioii i t cxcrcised ( $ r eRodriguez v JMB Architecture, LLC, supm at 95 1: Liiikowski v Ci41 o f New York, \l/pvu at 975). Indeed, to hold a subcontractor liable as a statutory agent for violations of Lctbor IA\L 4s 240 (I) or 241 (6) there must be a showing that the party had the authority to supervise and control the nark giving rise to these duties (Kekoe v S e g d , 272 AD2d 583, 584, 709 NYS2d 817 [2d Dept 20001:\re Russin v Louis N. Picciano & Son, 54 NY2d 3 11,445 NYS2d 127 [1981]). Labor Law (3 240 (1) requires owners and contractors to provide workers with appropriate safety devices to protect against - such specific gravity-related accidents as falling from a height or being struck b), a filling object that was improperly hoisted or inadequately secured (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501, 601 NYS2d 49 [1993]). While not every object that falls on a worker gives rise to the extraordinary protections of Labor Law 5 240 (1) (see Narducci v Mnnltasset Buy Assoc., 96 NY2d 259, 267, 727 NYS2d 37 [2001]), a plaintiff who is injured by such an object may recover where he or she shows that at the time the object fell it was being hoisted or secured (Narducci v Manhasset Bay Assoc., supra at 268) or required securing for the purposes of the undertaking (Novak v Del Savio, 64 AD3d 636, 638, 883 NYS2d 558 [2d Dept 20091; see Qunttrocclzi v F.J. Sciame Constr. Corp., 1 1 NY3d 757, 758, 866 NYS2d 592 [2008]). Moreover, the statute does not require that a worker, to come within the protection of the section, be performing work at the location of the building or structure at the time of his injuries; it is sufficient that the work he is performing be work that is necessary and incidental to or an integral part of the erection, etc., of the building or structure (Moslzer v St. Joseph s V i h , 184 AD2d 1000, 1004, 584 NYS2d 678 [4th Dept 19921; see Lombard v Stout, 80 NY2d 290, 590 NYS2d 55 [1992]). Thus, a plaintiff will be afforded protection under the Labor Law where the tree removal project constituted site preparation, which was incidental and necessary to the erection of a building or structure (see Lombardi v Stout, supra; Martinez v City of New York, 93 NY2d 322, 690 NYS2d 524 [ 19991; Moslzer v St. Joseph s Villa, \iiprLi: cf Enos v Werlatone, 1tzc.,68 AD3d 713, 890 NYS2d 109 [2d Dept 2009l). Here. Slijrley Plumbers established its prima facie entitlement to summary judgment dismissing the Labor 1 a - v $5240 (1) and 241(6) claims against it by demonstrating that it neither owned the subject premises nor sen ed as the general contractor or agent for the owners, such that it possessed the supenisory authority over plaintiff s work enabling it to avoid or correct the unsafe condition that caiiscd h i s allesed in.juries ( . s w Chang Zhang Zoir v 122 Dev., LLC. 103 AD3d 5 19. 959 NYS2d 666 [lst Dept 2013J: Orfiz v1.B.K. Enters., lnc., 85 AD3d 1139, 927 NYS2d 114 [2d Dept 201 11; Crochowski v Ben Rubitis, LLC. 8 1 AD3d 589. 9 16 NYS2d I71 [2d Dept 201 11: Morris v C & F BIdr.s., Iiic.. 87 A113tl 792, 928 NYS2d 154 [2d Dept 201 11; Zervos v City o New York. 8 AD3d 477, f 770 NYSZd 106 ( 2 1 I k p t 20041). Significantly, it is undisputed that Shirley Plumbers \vas not the o\vncr o f h e sihject premises, that it only performed interior heating and plunibiiig work, and that it did not perfimi an! \ \ a r k at the premises on the day of the alleged accident. Further, Shirlej. Plumbers submitted e\.itlence that Dream Land served as the general contractor for the project and exercised superL.isory control o f tlie work performed on the exterior of tlie building, and that plaintiff was using Dream Land s equipnient at the time of the alleged accident. Indeed, plaintift s ow-n testimony indicates that he \\mlted csclusi\.ely for Dream Land during the renovation project, and that he received payment for such senrices by a check issued to him by Dream Land. Shirley Plumbers also established, prima [* 5] t x i e its entitlement to summary judgment dismissing plaintiffs claim under Labor Law $200, its as 5Libniiwonh de~uonstrate plaintiff-s iiijuries arose from the manner in which the work was that pei f o i med. a i d that Sliirley Plumbers did not possess super1 isory authority or control over such work ( s e e Rizzuto v L.A. Wenger Contr. Cu.. 91 NY2d 343, 670 NYS2d 816 [1998]; Grochowski v Ben rub in^, LLC, 81 AD3d 589. 916 NYS2d 171 [2d Dept 201 11: Ramos v Patchugiie-MedfordSclzool Dist.. 73 AD3d 1010. 906 NYS2d 45 [2d Dept 20101, Kelioe vsegcil, 272 AD2d 583. 709 NYS2d 817 [ 2d Dept 2000], In opposition to Shirley Plumbers prima facie showing, plaintiff failed to demonstrate the esistence of any inaterial issues of fact warranting denial ofthe motion (see Zuckerman v City o f N e w Yurk. . s L i p o : Perez v Grace Episcopal Church, supru). Plaintifi s assertion that Shirley Plumbers and Dream Land acted as the same entity during the project because they were both owned by John Pedersen is speculatorq and unsubstantiated, and, therefore, is insufficient to raise a material issue of fact (see Zcickermtin v Ci@ ufNew Yurk, supra). Moreover, plaintiffs opposing affidavit, in which he states that at the time of the accident he believed that Mr. Pedersen directed and controlled his work as the owner of Shirley Plumbers, contradicts his earlier deposition testimony that he only performed work on behalf of Dream Land while at the worksite, and presents a feigned issue of fact (see Garcia-Rusales v Bais Ruche1 Resort, 100 AD3d 687,954 NYS2d 148 [2d Dept 20131; Steinsvaag v City ofNew York, 96 AD3d 932. 947 NYS2d 536 [2d Dept 20121). Accordingly, the cross motion by Shirley Plumbers for summary judgment dismissing the complaint and cross claims against it is granted. The action is severed and shall continue against the remaining defendants. In light of the foregoing determination, the branch of plaintiffs motion for summary judgment on the issue of liability as against defendant Shirley Plumbers is denied, as moot. Furthermore, based on the adduced evidence, plaintiffs failed to meet their prima facie burden on the branch of the motion seeking summary judgment on the issue of liability as against Dream Land. Specifically, plaintiffs failed to eliminate significant triable issues as to whether plaintiff volunteered to perform the work in which he was engaged at the time of the accident ( ( e eStringer v Musacchin, 1 1 NY3d 212, 869 NYS2d 362 120081; Torres v Perry St. Dev. Corp., 104 AD3d 672, 960 NYS2d 450 [2d Dept 20131; Lipsker v 650 Crown Equities, LLC. 81 AD3d 789. 917 NYS2d 249 [2d Dept 201 11; Curatulo v Postigliune, 2 AD3d 480. 767 NYS2d 894 (2d Dept 200311, and whether the attempted tree removal, which took place more than 3 0 days after the construction of the extension u as completed. fell within the ambit of work covered bjTthe 1 abor Law (5ce Beehner v Eckevd Corp., 3 NY3d 751, 788 NYS2d 637 [2004]; Crorsett v Wing Farm, Inc.. 79 AD3d 1334, 912 NYS2d 751 [2d Dept 201 01; Enos v Werlatune, Inc., szpm; Rivercr 1 Santos. -35 AD3d 700, 827 NYS2d 222 [2d Dept 20061). Accordingly, plaintiffs motion seel\ing suimiiiar> ludgment i n their favor on the issue of defendants liability under Labor Law $240( 1 ) 15 denicd __ FINAL DISPOSITION X NON-FINAL DISPOSITION

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.