Clarke v 750-760 Pelham Pkwy Owner LLC

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[*1] Clarke v 750-760 Pelham Pkwy Owner LLC 2016 NY Slip Op 50993(U) Decided on July 6, 2016 Supreme Court, Kings County Edwards, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2016
Supreme Court, Kings County

Garvin Clarke, Plaintiff,



Genine D. Edwards, J.

The following papers numbered 1 to 6 read herein:

Papers Numbered

Notice of Motion 1, 2

Affirmation in Opposition 3, 4

Affirmation in Reply 5, 6

In this Labor Law action defendants move for summary judgment, dismissing all claims. Plaintiff also makes a motion for partial summary judgment based upon Labor Law § 240(1) and 241(6).

On October 29, 2010, plaintiff fell from a ladder while in the course of painting and/or scraping the exterior of the premises 750-760 Pelham Parkway, in the Bronx. Plaintiff claims that defendants violated Labor Law §§ 200, 220, 240(1) and 241(6) as well as several sections of the Industrial Code. At the time of the incident plaintiff was working for 1160 Cromwell Avenue Owner LLC ("1160"), and he received directions and supplies, including the subject ladder from Paul Kirby ("Kirby") of Kirby Construction Corp., a now defunct corporation. Allegedly, Kirby was hired by either Meyer Brecher ("Brecher"), who was a consultant for defendant E & M Associates, LLC ("E & M"), a managing agent or defendant 750-760 Pelham Parkway Owner LLC ("750-760"), the owner of the subject premises. It is undisputed that the Worker's Compensation Board found that 1160 was plaintiff's employer, and he received worker's compensation benefits for this accident.

Defendant 750-760 contends, inter alia, that it is a special employer of plaintiff, and thus is protected by the Worker's Compensation Law, which is a bar against recovery by plaintiff. The [*2]other defendants argue that the claimed Labor Laws do not apply to them.

The proponent of a motion for summary judgment has the initial burden of laying bare its claim demonstrating by admissible evidence that there are no issues of fact for a jury to determine. Alvarez v Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923 (1986); In re Cassini, 120 AD3d 799, 992 N.Y.S.2d 93 (2d Dept. 2014). "If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers." Edwards v. Great Atlantic & Pacific Tea Company, Inc., 71 AD3d 721, 895 N.Y.S.2d 723 (2d Dept. 2010); Flynn v. Fedcap Rehabilitation Services, Inc., 31 AD3d 602, 819 N.Y.S.2d 290 (2d Dept. 2006). "Once the movant provides sufficient proof, the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact." Zapata v. Buitriago, 107 AD3d 977, 969 N.Y.S.2d 79 (2d Dept. 2013).

"A special employee" is "one who is transferred for a limited time of whatever duration to the service of another," Thompson v. Grumman Aerospace Corp., 78 NY2d 553, 578 N.Y.S.2d 106 Dept. (1991). Normally the question of special employment is a question of fact for a jury. Charles v. Broad Street Development LLC., 95 AD3d 814, 947 N.Y.S.2d 518 (2d Dept. 2012). However, the question may be deemed a matter of law based upon the undisputed critical facts. Id. The guidelines to be considered for determining employment status include: who has the duty to control and direct the employee in the work place, who pays wages, who furnishes equipment, who has the right to discharge, whether the work is in furtherance of the special employer's business. The special employer's "control and direction" is of great significance. Id.; Pena v. Automatic Data Processing, Inc., 105 AD3d 924, 963 N.Y.S.2d 357 (2d Dept. 2013); Digirolomo v. Goldstein, 96 AD3d 992, 947 N.Y.S.2d 164 (2d Dept. 2012).

Based upon this Court's review of defendant's motion alone, without considering the plaintiff's opposition, it is pellucidly clear that defendant 750-760 failed to shoulder its burden of proof. The credible evidence demonstrates that plaintiff was paid by 1160 and he received direction and supplies from Kirby, including the subject ladder. Indeed, defendant 750-760 failed to proffer any indicia of employment of plaintiff, like payroll records or an employment application or a W2 form or a benefits package. What is most striking is that defendant 750-760 neglected to proffer any evidence as to how it managed plaintiff i.e. who supervised plaintiff's work and methods, hours and duties. Barak v. Chen, 87 AD3d 955, 929 N.Y.S.2d 315, (2d Dept. 2011). There is not one scintilla of evidence that suggests that plaintiff worked in any capacity for any of the defendants, including 750-760.

Turning to the alleged Labor Law violations, defendant 750-760, as an owner of the premises falls squarely within Labor Law §§240(1) and 241(6) as well as 200.

Defendant E & M, a managing agent, who hired Brecher, a consultant who provided services regarding building structure issues, and who may have hired Kirby to perform work to the exterior of the subject premises, may be deemed an agent of defendant 750-760, for purposes of the Labor Law §§ 240(1) and 241(6) and 200.

Moving to plaintiff's motion for partial summary judgment, the uncontested testimony reveals that plaintiff was injured while using a ladder to perform painting and/or scraping work at defendant's premises.

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, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, [*3]ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Labor Law §240(1).

As previously stated defendant 750-760, as owner of the subject premises, is subject to the aforementioned statute.

In opposition, defendants again argue that it is the special employer of plaintiff, however this Court is still not swayed. The fact that both plaintiff and Kirby received paychecks from defendant 750-760 does not amount to employment. There is a lack of evidence of any control over either plaintiff or Kirby as far as their work is concerned. Indeed, defendant 750-760's own principal, Leibel Ledeman, testified that he did not control or direct any of the work performed. This glaring admission speaks volumes, and utterly persuades this Court. Not to mention that plaintiff was given an IRS 1099 form, which is normally reserved for non-employees like independent contractors.

However, with respect to defendants E & M and LGLS Bronx Portfolio LLC, questions of fact exist as to whether they are owners or agents of defendant 750-760. The record is replete with half-truths and innuendos all suggesting that E & M and LGLS Bronx Portfolio LLC were agents of defendant 750-760. The numerous factual disputes regarding the roles of these defendants do not lend themselves to resolution at this junction.

Accordingly, since the action against defendants Rainbow Estates LLC and 750-760 Pelham Parkway LLC is discontinued, defendants' motion is granted only as to LGLS Bronx Portfolio Owner LLC. Plaintiff's motion is granted with respect to Labor Law §240(1) as against 750-760 Pelham Parkway Owner LLC only.

This constitutes the Decision and Order of the Court

E N T E R,


J. S. C.

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