Plioplys v Coburn

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Plioplys v Coburn 2017 NY Slip Op 31222(U) June 7, 2017 Supreme Court, Suffolk County Docket Number: 13-8136 Judge: Arthur G. Pitts 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. [* 1] SH< iRT FOR!-.! ORDER INDE)(No. 13-8136 CAL. No. 15-018950T SUPREME COURT - STJ\ TE OF NEW YORK l.A.S. PART43 - SUFFOLK COUNTY "'o~ h '-., ~ r PRESENT: Hon. -~A"'-'R=T=H=U-"-R"'-'G=·-=-P....:... ITT:...-=...;:S'----Justice of the Supreme Court MOTION DATE MOTION DATE MOTION DATE ADJ.DATE 2-25-16 (002) 2-29-16 (003) 3-14-1 6 {004) 11-17-16 .t Mot. Seq.# 002 - MG # 003 - MotD # 004- MG ---------------------------------------------------------------)( ALEKSANDRAS PLIOPLYS. Plaintiff, MATTHEW J. SALIMBENE, ESQ. Attorney for Plaintiff 900 Third Avenue, Suite 1801 New York, New York 10022 PEREZ& VARVARO Attorney for Defendant Coburn 333 Earle Ovington Blvd. P. 0. Box 9372 Uniondale, New York 11553 - against - ROBERT COBURN and JANET HARASIMOWICZ. Defendants. LAW OFFICE OF THOMAS NOLAN, P.C. Attorney for Defendant Harasimowicz Union Square P.O. Box 826 Aquebogue, New York 11931 ---------------------------------------------------------------)( Upon the following papers numbered I to --1.1.._ read on these motions for summarv judgment : Notice of Motion/ Order to Show Cause and supporting papers I -14 15 - 22 : Notice of Cross Mot ion and supporting papers 23 - 34 : Answering Affidavits and supporting papers 35 - 46 47 - 57 58 - 60 ; Replying Affidavits and supporting papers 63 - 64 65 - 69 70 - T!. : Other_ Memorandum of Law : (irnd ttRe1 he111 i11g eot111~el in ~11ppor1: tu1d oppo~ed to the 111otio11) it is. ORDERED that the motion by defendant Robert Coburn for summary judgment dismissing the complaint against him is granted: and it is further ORDERED that the motion by defendant Janek Harasimovich for summary judgment dismissing the complaint against him is granted to the extent indicated herein and is otherwise denied: and it is further ORDERED that the cross motion by plaintiff for partial summary judgment in his favor on the issue of liability with respect to his Labor Law§ 140 (1) claim against defendant Harasimovich is granted. Plaintiff Alexsandras Plioplys commenced this action to recover damages for personal injuries allegedly sustained on October 27, 2012, when he foll from a ladder while installing storm shutters on a single-family home [* 2] Plioplys v Coburn Index o. 13-8136 Page 2 located at 345 Hill Street, Southampton, New York. At the time of the accident, the premises was owned by defendant Robert Coburn. Coburn allegedly hired defendant Janek Harasimovich to perfonn the storm shutter installation in preparation for Hurricane Sandy. llarasimovich then retained plaintiff as a helper. The accident allegedly occmTed when plaintiff, who was in the process of hanging the storm shutter on pre-installed hooks, felt the aluminum extension ladder on which he was standing begin to vibrate. Moments later both plaintiff and the ladder fell to the ground. By way of his complaint. plaintiff alleges causes of action against the defendants for common law negligence, and violations of Labor Law §§ 200, 2-lO ( 1), and 241 (6). Defendants joined issue asserting affirmative defenses and cross claims against each other, and the note of issue was filed October 16, 2015. Coburn now moves for summary judgment dismissing the complaint and cross claims against him on the grounds plaintiff failed to state viable causes of action under Labor Law §§ 240( 1) and 241 (6) since he was not engaged in any activity covered by the statute at the time of his accident. Alternatively, Coburn argues that he is exempted, as owner of the subject premises, from plaintiff's Labor Law§§ 240 (I) and 241 (6) claims, as he did not direct or control plaintiff's work on the premises. Coburn argues that plaintiff's common law negligence and Labor Law § 200 claims must be dismissed for similar reasons, as he did not control plaintiffs work. supply him any equipment. or have actual or constructive notice ofa dangerous condition on the premises. By way ofa separate motion, Harasimovich moves for dismissal of plaintiffs Labor Law claims only, asserting that plaintiff should not be regarded as an '·employee'· for the purposes of the statute and was not, in any event, engaged in an activity that was covered by the statute at the time of his accident. llarasimovich's motion, however, does not address plaintiffs common law negligence claims against him. Plaintiff opposes Coburn' s motion only to the extent that it seeks dism issal of the conunon law negligence and Labor Law§ 200 claims against him, arguing that dismissal of those claims should be denied because triable issues exist as to whether Coburn supplied the defective ladder which caused the accident and, if so, whether his transfer of the ladder to his neighbor, potentially spoliating evidence, precludes summary judgment in Coburn 's favor. Plaintiff opposes Harasimovich's motion on the basis that triable issues exist as to whether he should be regarded as Harasimovich 's employee for the purposes of the Labor Law and, if so, whether his installation of storm shutters on the shutters of the premises constituted an alteration, an activity protected under Labor Law § 240 ( 1). Plaintiff further asserts that Harasimovich, who controlled the means and manner of his work, violated Labor Law §§ 240 ( 1) and 200, by directing him to work in an unsafe manner and providing him with an unsecured ladder that did not adequately protect him from falling. Plaintiff cross-moves for partial summary judgment on the issue of liability with respect to his Labor Law § 240 (I) claim against Harasimovich on a similar basis. arguing I larasimovich violated the statute by failing to supply him with adequate safety devices, including a secured ladder, designed to protect him from falling. It is well settled that on a motion for summary judgment the function of the court is to determine whether issues of fact exist and not to resolve issues of fact or determine matters of credibility (see Doize v Holiday /1111 Ro11ko11koma, 6 AD3d 573, 574, 774 NYS2d 792 [2d Dept 2004]). Furthermore, facts that are alleged by the nonmoving pa11y and all inferences which may be drawn from them must be accepted as true (see O'Neill v Tow11 of Fis It kill. 134 AD2d 487. 488. 521NYS2d272 [2d Dept 1987]). 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]: Wi11egrad v New York Univ. Med. Ctr.. 64 NY2d 851. 487 NYS2d 316 [1985]; Andre v Pomeroy. 35 NY2d 361, 362 NYS2d 131 [1974)). Once the movant meets this burden, the burden shifts to the opposing party to show by tender of sufficient facts in admissible fonn that triable issues remain which preclude summary judgment (see Wi11egrad v New York Univ. Med. Ctr .. 64 NY2d 851, 487 NYS2d 316 [1985]). However, in opposing a summary [* 3] Plioplys v Coburn Index No. 13-8136 Page 3 judgment motion. mere conclusions. unsubstantiated allegations or assertions are insufficient to raise triable issues of fact (Zuckerman v City of New York, 49 NY2cl 557. 427 NYS'.2d 595 [1980]). Initially. the court notes that plaintiff will be regarded as an ..employee .. for the purposes of the Labor Law statute where. as in this case, he was previously paid by Harasimovich for work he perfom1ed at the same residence earlier in the year, he received nonmonetary compensation in return for the work he was perfom1ing at the time of the accident, and Harasimovich controlled the manner and ultimate outcome of such work (see Stringer v ltlfusacchia. 11 NY3d 2 12. 869 NYS2d 362 [2008); Aloise v S(lulo, 51 AD3d 829. 858 NYS2d 355 [2d Dept 2008]: Zimmernum v Weig. 5 A D3d 1084, 773 NYS2d 664 [4th Dept 2004]). Further, inasmuch as Harasimovich retained the ability to control the activity in which plaintiff was engaged at the time of his injury. and acted as Coburn 's "eyes and ears.. for the purposes of the project. he served as Coburn's statutory agent for the purposes of the Labor Law and, as such, was liable for the breach of the statute (see Walls v Turner Constr. Co. , 4 NY3d 861, 798 NYS2d 351 [2005); Vim Blerkom v A merica Pai11ting, LLC. 120 AD3d 660. 992 NYS2d 52 [2d Dept 2014]: Baklltadze v Riddle. 56 AD3d 589, 868 NYS2d 684 [2d Dept 2008]). Moreover, the court finds that the work in which plaintiff was engaged at the time of his accident, namely the installation of storm shutters on all three tloors of the premises to safeguard it against the effects of a major storm, effectuated a significant physical change to the building, s uch that it would be considered a covered "alteration·· under Labor La"v § 240 [I] (see Belding v Verizo11 N. Y., Inc.. 14 NY3d 751, 898 NYS2d 539 (20 l OJ; Joblo11 v Solow, 91 NY2d 457, 672 N YS2d 286 [ 1998); Ferrari v Niasller Realty, Inc., 175 AD2d 591, 573 NYS2d 794 [4th Dept 1991); cfKesselbaclt v Liberty Haulage, Inc.. 182 A D 2d 741. 582 NYS2d 739 (2d Dept 1992]). Therefore, plaintiff met the necessary criteria to invoke the protections afforded by Labor Law§ 240 (1) (see Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 97 1. 419 NYS2d 959 [ 1979]; Stringer v Musacchia. supra). However, plaintiff's work, though properly regarded as an ·'alteration" under the circumstances of this case, falls outside of the context of a construction, demolition or excavation proj ect, and is not covered under Labor Law § 24 1 (6) (see Esposito v N. Y. City Indus. Dev. Agency, 1 NY3d 526, 770 NYS2d 682 (2003]: Nagel v D & R Realty Corp. , 99 NY2d 98. 101, 752 NYS2d 581 (2002). Therefore, the unopposed branches of the motions by Coburn and Harasimovich for sum mary judgment dismissing plaintiff's Labor Law§ 241 (6) claims are granted. To the extent that Harasimovich 's summary judgment motion is predicated solely on the contentions that plaintiff was neither an ..employee" nor engaged in an activity that was covered by the statute at the time of the accident. the branches of his motion seeking dismissal of plaintiffs common law negligence and Labor Law§§ 240 (I) and 200 claims are denied. With respect to the branch of Cobum's motion for summary judgment dismissing p laintiffs Labor Law§ 240 (I) claim. that section of the statute expressly exempts owners of one and two-family dwellings who contract for but do not direct or control the work. The exemption is intended to protect residential homeowners lacking in sophistication or business acume n from their failure to recognize the necessity of insuring against the strict liability imposed by the s tatute (Ortega v Puccia. 57 AD3d 54. 58-59, 866 NYS2d 323 [2d Dept 2008]: see Abdou v Rampaul. 147 AD3d 885. 47 NYS3d 430 (2d Dept 2017]: Ramirez v l.G.C. Wall .S:vs., Inc.. 140 AD3d 104 7. 35 NYS3d 159 [2d Dept 2016)) ... [I]n order for a defendant to receive the protection of the homeowners· exemption ... the defendant must satisf)1 two prongs required by the statutes. First, the defendant must show that the work was conducted at a dwelling that is a res idence for only one or two families ... The second requirement ... is that the defendants 'not direct or control the work"" (Chowdhury v Rodriguez, 57 AD3d 121. 126, 86 7 NYS2d 123 [2d Dept 2008], quoting Labor Law~ 240 [l]). The phrase "direct or control'" refers to the s ituation where the owner supervises the method and manner of the work (see Abdou v Rampaul. supra; Walsh v Kresge. 69 AD3d 6 12. 893 NYS2d 137 [2d Dept 2010]: Boccio v Bozik. 41 AD3d 754, 755, 839 NYS2d 525 [2d Dept 2007]). [* 4] Plioplys v Coburn Index No. 13-81 36 Page4 Tiere, Coburn established. prima facie. that he is entitled to the homeowners ' exemption against plaintiff's Labor Law§ 240 ( l) claim. by submitting evidence that he was the owner of the subject single-family residence at the time of the alleged accident, and that he did not control or supervise the method and manner of plaintiffs work at the premises (see Abdou v Rampaul. supra; Ramirez v I. G.C. Wall Sys., Inc.. supra; Nai Ren Jiang v Shane Yeh. 95 AD3d 970. 944 NYS2d 200 [2d Dept 2012]). Plaintiff who did not oppose this branch of Coburn's motion. failed to raise any triable issue in response (see Alvarez v Prospect Hosp.. supra: Winegrad v New York Univ. Med. Ctr .. supra). Therefore. the branch of Coburn 's motion seeking summary judgment dismissing plaintiffs Labor Law§ 240( l) claim is granted. Coburn further established his prima facie entitlement to summary judgment dismi ssi ng plaintifTs common law negligence and Labor Law§ 200 claims against him by submitting evidence that he neither controlled the means or manner of plaintiffs work, nor had notice of any alleged dangerous condition on the premises at the time of the accident (see Persicl1illi v Triborouglz Bridge & T111111el Autlz.. 16 NY2d 136. 262 NYS2d 476 [1965): Dasilva v Nussdorf, 146 AD3d 859, 45 NYS3d 531 [2d Dept 2017]; Sandals v Slzemtov, 138 AD3d 720, 29 NYS3d 448 [2d Dept 20161; Be1111ett v Hucke. 131 AD3d 993. 16 NYS3d 261 [2d Dept 2015); DiMaggio v Cataletto, I 17 AD3d 984. 986 NYS2d 536 [2d Dept 2014]). Section 200 of the Labor Law statute is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work (see Comes v New York State Elec. & Gas Corp. , 82 NY2d 876, 609 NYS2d 168 [1993]). Where a premises condition is at issue, an owner or contractor may be held liable for a violation of Labor Law§ 200 if they either created the dangerous condition or had actual or constructive notice of its existence (see Ku/four v Whitestone Co11st. Corp., 94 AD3d 706, 941NYS2d653 [2d Dept 20l2];Azad v 270 R ealty Corp. , 46 AD3d 728, 730. 848 NYS2d 688 [2d Dept 2007]). By contrast, when a claim arises out of alleged dangers in the method of the work or the use of defective equipment, there can be no recovery against the owner unless it is shown that the owner had the authority to control the perfonnance of the work or the provision of the alleged defective equipment (see Rizzuto v L.A. Wenger Co11tr. Co., Inc. , 91NY2d343, 352, 670 NYS2d 816; Persicl1i/li v Triborouglz Bridge & T111111el A utlz., 16 NY2d 136, 262 NYS2d 476). As mentioned above, plaintiff testified that Harasimovich exclusively controlled the means and method of his work at the subject premises. Moreover, Coburn submitted deposition testimony by Harasimovich indicating that the aluminum ladder in question belonged to him. that he purchased the ladder for the purpose of continuing to perform handyman jobs at the premises. and that Coburn merely permitted him to store the ladder on the premises for future use there. In addition, to the extent that plaintiffs complaint can be construed to allege that a dangerous condition on the premises caused his accident, the adduced evidence indicates that Coburn neither created nor had constructive notice of any such condition prior to the accident (see Dasilva v Nussdorf., 146 AD3d 859. 45 NYS3d 531 [2d Dept 2017); Azad v 270 R ealty Corp. , supra; Dahar v Holland Ladder & Mfg. Co.. 79 AD3d 1631. 914 NYS2d 817 [4th Dept 20 l OJ). Fm1hermore, in light of undisputed testimony by Harasimovich that he owned the subject ladder and assisted plaintiff in setting it up prior to the accident. plaintiffs conclusory assertions that triable issues exist as to the ownership of the ladder, and whether Coburn allegedly spo liated evidence by transferring it to his neighbor. are insufficient to defeat Coburn' s prima facie showing (see Alvarez v Prospect Hosp.. supra: Zuckerman v Ci~v of New York. supra). Accordingly. the branch of Cobum's motion for summary judgment dismissing plaintiffs common law negligence and Labor Law§ 200 claims against him is granted. Turning to plaintiffs cross motion for partial summary judgment on the issue of liability with respect to his Labor Law§ 240 ( 1) claim. that section of the statute requires that safety devices. including scaffolds. hoists. stays. ropes or ladders be so ··constructed, placed and operated as to give proper protection to a worker" (Klein v City of New York, 89 NY2d 833, 834, 652 NYS2d 723 (1996]). To prevail on a claim pursuant to Labor Law§ 240 ( 1). a plaintiff must establish that the statute was violated and that the vio lation was a proximate cause of his or her [* 5] Plioplys v Coburn Index No. 13-8136 Page 5 injuries (see Bland v 1 l1a11oclterian. 66 NY2d 452. -l97 NYS2d 880 [1985]: Sprague v Peckham 1 Uaterials Corp.. 2-.J.0 AD2d 392, 658 NYS2d 97 [2d Dept 1997]). While .. [a] fall from a ladder. by itself, is not sufficient to impose liability under Labor Law§ 240 [lr (Xidias v Morris Park Co11tr. Corp.. 35 AD3d 850. 851. 828 NYS2d 432 [2d Dept 2006] ). liability wil 1be imposed when the evidence shows that the subject ladder was defective or inadequately secured and that the defect. or the failure to secure the ladder. was a substantial factor in causing the plaintiffs injuries (see Baugh v New York City Sch. Co11str. A utlt.. 140 AD3d 11 04, 33 NYS3d 472 [2d Dept 20 16] ; Robinson v Bond St. levy, LLC, 11 5 AD3d 928. 983 NYS2d 66 [2d Dept 2014]; Melchor v Singh. 90 AD3d 866. 935 NYS2d 106 (2d Dept 201 l]:Artoglou v Gene Scappy Realty Corp.. 57 AD3d 460, 461. 869 NYS2d 172 l2d Dept 2008] ). Herc. plaintiff established his prima facie entitlement to summary judgment on the issue of liability by submitting evidence the unsecured ladder failed to fulfill its safety function and was insufficient to prevent him from falling without the use of additional precautionary devices or measures (see Seferovic v Atlantic Real Estate Holdings, LLC. 127 AD3d 1058, 7 NYS3d 458 [2d Dept 2015]; Grant v City of New York. 109 AD3d 961. 972 NYS2d 86 [2d Dept 2013]: McGill v Qudsi, 91AD3d 1241, 937 NYS2d 460 [3 d Dept 2012]; Ordonez v C.G. Plumbing Supply C01p. , 83 AD3d I 021, 922 NYS2d 156 [2d Dept 2011]: cf Costello v Hapco Realty, /11c. , 305 AD2d 445. 761 NYS2d 79 [2d Dept 2003]). Significantly. plaintiff testified that the ladder inexplicably began vibrating as he was attempting to install the first storm shutter on the third fl oor on the premises, and that it suddenly fell from beneath him, causing him to fall to the ground. Plaintiff further testified that he warned Harasimovich that the ladder fel t unstable and vibrated when he climbed it to install storm shutters on the other floors of the premises. Indeed, plaintiff testified that despite his warnings about the condition of the ladder, Harasimovich neither held the ladder nor provided any add itional safety device meant to protect plaintiff from falling. Harasimovich failed to raise a significant triable issue in opposition warranting denial of plaintiffs motion (see Alvarez v Prospect Hosp. , supra; Zuckerman v City of New York, supra). As mentioned above, plaintiff is regarded as an "employee" under the circumstances ofthis case (see Stringer v Musacchia. supra; Aloise v Saulo. supra), and his task ofinstalling storm shutters throughout the premises to safeguard it against the effects ofa major storm is deemed a covered altercation under Labor Law§ 240 (1] (see Belding v Verizon N. Y., Inc.. s upra; Joblo11 v Solow. supra; Ferrari v Niasher Realty, Inc. , supra). The court also rejects Harasimovich's contention that he is not subject to liability because he was no longer a general contractor at the time of the accident, and was merely vol unteering to help Coburn. as his retention of control OYCr the project rendered him a statutory agent for the purposes ofthe Labor Law (see Walls v Turner Co11str. Co.. supra: Van Blerkom v America Painting, LLC. supra; Baklttadze v Riddle. supra: see also Tomyuk v J1111efield Assoc.. 57 AD3d 5 18, 868 NYS2d 731 [2d Dept 2008); Stevenson v Alfredo, 277 AD2d 2 18, 715 NYS2d 444 (2d Dept 2000]). Furthermore, it is noted that "an unsecured ladder. even one in good condition. can give rise to Labor Law§ 240 ( 1) liability if a worker falls from it'' (Fa1111i11g v Rockefeller U11iv~. l06 AD3d 484, 964 NYS2d 525 (1st Dept 2013]), and plaintiffs accident is distinguishable from those in cases involving falls fro m secured ladders where a worker merely loses his balance and falls (see Spenard v Gregware Gen. Co11tr., 248 AD2d 868. 669 NYS2d 772 [3d Dept 1998]; Gange v Tilles In v. Co .. 220 AD2d 556. 632 NYS2d 808 [2d Dept 1995]). Accordingly, plaintiffs motion fo r partial summary judgment in his favor on the issue of liability as against Harasimovich is granted. "' I Dated: Riverhead, New York ARTHUR G. PITTS, J.S.C. June 7, 2017 FINAL DISPOSITION X NON-FINAL DISPOSITION

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