Mohan v 4719 34th Ave., LLC

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Mohan v 4719 34th Ave., LLC 2015 NY Slip Op 31923(U) September 3, 2015 Supreme Court, Queens County Docket Number: 704731/201 Judge: Darrell L. Gavrin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: QUEENS COUNTY CLERK 09/10/2015 09:31 AM 1] NYSCEF DOC. NO. 41 INDEX NO. 704731/2013 RECEIVED NYSCEF: 09/10/2015 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE DARRELL L. GAVRIN Justice __________________ IA Part 27 x Index Number OMESHMOHAN Plantiff, -against- Motion Date June 12, 2015 th 4719 34 AVENUE, LLC T-MOBILE, AWMOBILE, INC. and WIRELESS 1 OF NY, INC., Motion Cal. Number Motion Seq. No. Defendants. 74 1 x The following papers numbered 1 to _8_ read on this motion by defendant T-Mobile USA Inc., doing business and sued herein as T-Mobile and AW Mobile Inc., and defendant Wireless One of NY Inc., doing business as non-party American Wireless (collectively referred to as the T-Mobile defendants), for summary judgment dismissing the complaint. Papers Numbered Notice of Motion - Affidavits - Exhibits Answering Affidavits - Exhibits ; Reply Affidavits 1-4 5-6 7-8 Upon the foregoing papers it is ordered that the motion is determined as follows: This is an action to recover for personal injuries that plaintiffOmesh Mohan (plaintiff) allegedly sustained as a result of violations of Labor Law 99 200, 240 (1), 241 (6), and common-law negligence. Plaintiff has alleged that on May 24, 2011, he was an employee of non-party R & S Plumbing and that he was injured when a ladder he was standing on, slid [* 2] out from under him while he was working to instal! a sprinkler system at premises located at 389-391 Peninsula Boulevard, in the County of Nassau. Defendant 4719 34th Avenue, LLC (4719), owned the subject premises and allegedly hired non-party Class One Construction, which then hired R & S Plumbing, to install plumbing and a sprinkler system at the subject premises, while the T-Mobile defendants leased the premises from 4719. The T-Mobile defendants have moved for summary judgment dismissing the complaint. The court will first tum to plaintiffs claims brought under Labor Law ~~ 240 (I) and 241 (6). The T-Mobile defendants have argued that they were not owners within the contemplation of Labor Law and did not exercise the requisite control over the work for purposes of Labor Law. In support of their motion, the T-Mobile defendants 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" (Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; see Smalls v AJI Indus., Inc., 10 NY3d 733,735 [2008]). "Labor Law ~~ 200, 240, and 241 apply to owners, general contractors, or their agents" (Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593 [2011] [internal quotation omitted]). "[T]he term 'owner' is not limited to the titleholder of the property where the accident occurred and 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 [or her] benefit''' (Scaparo v Village o/llion, 13 NY3d 864, 866 [2009], quoting Copertino v Ward, 100 AD2d 565, 566 [1984]). A lessee that does not contract for or otherwise have authority to supervise or control construction work being perfonned, is not an owner or agent under the Labor Law (see Ferluckaj v Goldman Sachs & Co., 12 NY3d 316,320 [2009]). "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" (Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d at 593 [internal quotation omitted]; see Rodriguez v JMB Architecture, LLC, 82 AD3d 949, 951 [2011]). The T-Mobile defendants have relied upon, among other things, plaintiff s deposition testimony, the testimony of David Shavolian (Shavolian), a member of 4719, the testimony ofVikram Tomar (Tomar), Director of Operations for Wireless One, and a copy of the lease agreement between 4719 and AW Mobile Inc. Plaintiff testified that he was an employee of R & S Plumbing, that he was installing a sprinkler system at the subject premises, that his supervisor, Ravin, instructed him on how to perform his work and that no one else instructed him. He further testified that R & S Plumbing provided all the equipment he needed to perform his work, including the ladder that was involved in the accident, which Ravin brought to the premises and instructed plaintiff to use. 2 [* 3] Shavolian testified that 4719 owned the premises, thatthe T-Mobile defendants leased the premises from 4719, that 4719 hired Class One Construction to perform the sprinkler work and that Class One Construction, in turn, hired R & S Plumbing. Tomar testified that Wireless One had a contract with T-Mobile as a retailer, that AW Mobile Inc., is also a retailer ofT-Mobile products and that the T-Mobile defendants did not perform any work at the subject premises. Tomar also testified that 4719 was responsible for all work that had to be performed, that while he recalled some work being performed at the premises, the TMobile defendants were not involved in that work and did not have the right to direct, control or supervise any of plaintiff's work. Based upon this evidence, the record has demonstrated that, under the circumstances, the T-Mobile defendants were lessees and tenants of the premises, that they did not contract for the work to be performed for their benefit and that they did not direct or control the work which led to plaintiff's injury (see Reynoso v Bovis Lend Lease, Lmb, Inc., 39 Misc3d 1224[A], *9 [2013]). Thus, the record has demonstrated that the T-Mobile defendants were not owners or agents of the owner within the purview of Labor Law (id.) In opposition, plaintiff has failed to point to evidence to raise a triable issue of fact (see Guryev v Tomchinsky, S7 AD3d 612, 614 [2011], affd 20 NY3d 194 [2012]). Therefore, for Labor Law SS 240 (I) and 241 (6) purposes, the T-Mobile defendants have adequately demonstrated that they are not strictly liable to plaintiff under theses sections. The T-Mobile defendants have moved to dismiss plaintiff's claims brought under Labor Law S 200 and for common-law negligence. They have argued that they did not have the authority to supervise or control plaintiff's work, that they were not responsible for the manner in which the work was being performed, and that they were not negligent. Labor Law S 200 "is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" (Ortega v Puccia, 57 AD3d 54, 60 [200S]). Labor Law S 200 provides that owners and contractors may be liable for injuries to workers where they supervised or controlled the work which caused the injury (see Ross v Curtis-Palmer Hydro-Elec. Co., Sl NY2d 494,505 [1993]; Lombardi v Stout, SONY2d 290, 295 [1992]). In the instant matter, plaintiff has alleged that the subject accident was proximately caused by a defective ladder, which involves the manner in which the work was performed. Where a claim arises out of the methods or materials of the work, an owner or general contractor may be liable if it is shown that he or she had the authority to supervise or control the work (see LaGiudice v Sleepy's Inc., 67 AD3d 969,972 [2009]; Ortega v Puccia, 57 AD3d at 61-63). The evidence in the record, including plaintiff's deposition testimony that only his supervisor, Ravin, instructed him on how to perform his work that Ravin provided him with the subject ladder, as well as Tomar's testimony that the T-Mobile defendants were not 3 1 [* 4] involved in the work which led to the accident and did not direct, control or supervise plaintiffs work, has adequately demonstrated that they did not have the requisite authority to supervise or control the manner in which the injury-producing work was performed (see Ramos v Baker, 91 AD3d 930, 932-933 [2012]). In opposition, plaintiff has failed to point to sufficient evidence to raise a triable issue offact (see id. at 933). Therefore, the T-Mobile defendants are entitled to the dismissal ofplaintiffs claims brought under Labor Law S 200 and for common-law negligence. Accordingly, the motion by the T-Mobile defendants for summary judgment dismissing plaintiffs claims brought under Labor Law SS 200, 240 (1), 241 (6) and for common-law negligence is granted. 4

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