Aveiga v Crecco
Annotate this CaseDecided on October 4, 2017
Supreme Court, Westchester County
Luis Edwin Aveiga, Plaintiff,
against
Giovanni Crecco, MARIA CRECCO and ASNF, LLC, Defendants.
ASNF, LLC,Third-Party Plaintiff,
against
DALOMBA MASONRY, LLC,Third-Party Defendant.
65176/14
William Schwitzer & Associates, P.C.
820 Second Avenue, 10th Floor
New York, NY 10017
Attorneys for Plaintiff Luis Edwin Aveiga
Michael T. Blumenfeld
Conway Farrell Curtin & Kelly, P.C
48 Wall Street, 20th Floor
New York, NY 10005
Attorneys for Defendant Third-Party Plaintiff ASNF, LLC
Stephen S. Slater, Esq.
The Law Office of David S. Klausner, PLLC
150 Grand Street, Suite 510
White Plains, NY 10601
Attorneys for Defendants Giovanni Crecco and Maria Crecco
Mandelbaum Salsburg, P.C.
3 Becker Farm Road, Suite, Suite 105
Roseland, NJ 07068
Attorneys for Dalomba Masonry, LLC, Third-Party
David F. Everett, J.
The following papers were read on the motion:
002 Crecco Notice of Motion/Affirmation in Supp/Exhibits A-J
Plaintiff Affirmation in Opp to Crecco Notice of Motion, in Opp to ANSF Notice of Motion and in Reply to defendants' Opp to Plaintiff Notice of Motion/Exhibit K
Crecco Reply Affirmation
003 Plaintiff Notice of Motion for Partial Summary Judgment/Affirmation in Supp/Exhibits A-J
Crecco Affirmation in Opp/Exhibit A
Plaintiff Reply Affirmation/Exhibit K
004 ASNF Notice of Motion/Affirmation in Supp/Exhibits A-M/Memorandum of Law
Plaintiff Affirmation in Opp to Crecco Notice of Motion, in Opp to ANSF Notice of Motion and in Reply to defendants' Opp to Plaintiff Notice of Motion/Exhibit K
In this Labor Law action, defendants Giovanni Crecco (G. Crecco) and Maria Crecco (M. Crecco) (together, Creccos) jointly move, under motion sequence number 002, for an order, pursuant to CPLR 3212, dismissing the complaint against them. Plaintiff Luis Edwin Aveiga (Aveiga) moves, under motion sequence number 003, for an order, pursuant to CPLR 3212, granting partial summary judgment in his favor on his Labor Law § 240 (1) claim. Defendant ASNF, LLC (ASNF) moves, under motion sequence number 004, for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint and all cross claims and counter claims against it. The motions, under motion sequence numbers 002, 003 and 004, are consolidated for disposition, and upon the foregoing papers, are resolved as follows.
The following facts are taken from the pleadings, motion papers, affidavits, documentary evidence and the record, and are undisputed unless otherwise indicated.
Plaintiff commenced the instant action by filing a summons and complaint in the Office of the Westchester County Clerk on September 22, 2014, to recover damages for personal injuries he allegedly sustained when, on May 23, 2014, he was caused to fall from a scaffold while working at a single family residence under construction at 42 Young Road, Katonah, New York (Premises). Aveiga named the Creccos and ASNF as defendants based on their alleged status as owners of, and general contractors for, the Premises. Issue was joined by service of the Creccos' joint answer with affirmative defenses and a cross claim against ASNF on or about December 15, 2014, and by service of ASNF's answer with affirmative defenses and cross claims against the Creccos on or about May 1, 2015. After the commencement of discovery, ASNF commenced a third-party action against Aveiga's employer, DaLomba Masonry, LLC (DaLomba). The third-party complaint alleges negligence and seeks an apportionment of damages. After conducting additional discovery, plaintiff filed a note of issue and certificate of readiness, triggering submission of the instant motions.
It is undisputed that, at the time of the accident, the Premises was owned by the Creccos, [*2]and that Aveiga, who had been working there for about two weeks, was performing stucco work on the exterior of the Premises. It is also undisputed that, just prior to the accident, Aveiga was standing some 15 feet above the ground on scaffolding constructed by DaLomba's workers, and that he had not been provided with any safety devices or equipment to protect him from the effects of gravity. According to Aveiga, the accident occurred when the scaffolding suddenly fell to the ground.
In his complaint, Aveiga charges all defendants with common-law negligence, and with violating sections 200, 240 (1) and 241 (6) of New York State's Labor Law and Industrial Code. Aveiga alleges that each defendant not only owned the Premises, but that each exercised supervision and control over the work being performed by the various contractors, including DaLomba, rendering them general contractors.
Addressing Aveiga's motion for summary judgment on his Labor Law § 240 (1) claim, the statute provides, in relevant part:
"[a]ll 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, 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."Aveiga contends that what happened to him is precisely what the statute was enacted to prevent.
"Labor Law § 240 (1) was designed to prevent those types of accidents in which the . . . ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]). The Legislature enacted this statute to protect workers and to place the responsibility for safety practices on those in the best situation to bear that responsibility, the owners, contractors, and their agents. The duty is nondelegable, and one who breaches that duty may be held liable in damages, regardless of whether it actually exercised supervision or control over the work being performed (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500).
Neither the Creccos nor ASNF dispute whether the work Aveiga was performing at the time of his accident is covered under the statute, nor do they dispute that he did not have adequate protective devices to shield him from injury when the scaffold fell. Aveiga is, therefore, entitled to summary judgment on his Labor Law § 240 (1) cause of action. The question, however, is whether the Creccos and/or ASNF are responsible parties under the statute. While the Creccos, who acknowledge being the sole owners of the single family Premises, assert they are shielded from liability for Aveiga's accident and injuries under the homeowners' exemption, ASNF asserts it cannot be held liable, because in this particular instance, it had turned over its contract to do the stucco work to DaLomba, rather than subcontracting the work to DaLomba.
As to the Creccos' motion for an order dismissing the complaint as against them on the [*3]grounds that they are exempt from liability under the Labor Law's strict liability statutes, and under theories of common law negligence, the motion is granted, because, for the following reasons, the evidence is insufficient to establish that either of them supervised or controlled, within the meaning of the Labor Law, any of the stucco work at the single-family Premises.
In an attempt "to shift responsibility for construction site injuries from those parties without control of the injury producing activity to the general contractor and owner" (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]), the New York State Legislature imposed, under Labor Law §§ 240 (1) and 241 (6), nondelegable duties upon owners and contractors, with the exception of owners of one and two-family residences, to provide reasonable and adequate protection and safety to persons employed in the demolition or construction phases of construction work (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 878 [1993]; Russin, 54 NY2d at 317). The exception, or exemption, to the nondelegable duties has been legislatively accorded to these owners because "such owners 'cannot be expected to be in a position, as respects the work, which is dominant over that of the person doing the work' . . . [and because] 'it is unrealistic to expect the owner of a one or two family dwelling to realize, understand and insure against the responsibility'" mandated under sections 240 and 241 (Cannon v Putnam, 76 NY2d 644, 649 - 650 [1990] [citations omitted]). Accordingly, the question presented on this motion is whether the Creccos are entitled to the benefit of the exemption based upon a determination of liability under the Labor Law's strict liability statutes, and based upon a determination of liability premised on theories of common law negligence.
According to Aveiga, on the day of the accident, he was working along with another employee of DaLomba, applying stucco to the exterior of the Premises. Aveiga testified that he took direction from his (DaLomba) supervisor. When asked, Aveiga denied ever seeing anyone at the work site who appeared to be owners of the Premises, or who appeared to be walking around and observing any of the work, but he did recall seeing other laborers doing stone work (Aveiga tr at 14, 42, 113-114).
In opposition to the Creccos' motion, arguments are made by Aveiga that there remain questions of fact regarding the level of control and supervision exercised by the Creccos at the Premises, which preclude them from the homeowner's exemption. To this end, Aveiga points to testimony given at G. Crecco's deposition where he indicates that he pulled a permit to build his residence, hired various subcontractors to do electrical, plumbing carpentry, roofing and stucco work, and he answered "yes," to being asked if he was the general contractor for his house (G. Crecco tr at 12). Aveiga also points out that the Creccos had a background in construction based on the fact that they, or at least G. Crecco, was involved in the work performed in and about the building housing the Creccos' catering business, Villa Barone.
However, upon further examination of G. Crecco's testimony, and of that of his wife and of son, Nicky Crecco (N. Crecco), it is apparent that the Creccos were neither directing nor controlling, within the meaning of the Labor Law, either the manner nor the method of Aveiga's work, as neither was on site more than two or three times a month, and that, although they had opinions about the work, there is no proof that they handled day to day direction of the stucco work (G. Crecco tr at 77). According to their testimony, some of the supervision and/or discussions with subcontractors, including DaLomba, was performed by N. Crecco, and some of the contracts were signed on G. Creccos' behalf by, N. Crecco, who, like his parents, is also not [*4]in the construction business (id. at 13, 94-95; M. Crecco tr at 11, 21; N. Crecco tr at 44, 49, 67, 68). Based on the probative evidence, G. Crecco neither coordinated with the various contractors, nor did he know in what order the stone, windows and stucco work were performed, or the names of the companies doing the work (G. Crecco tr at 82-84). In fact, M. Crecco contradicted her husband's claim to have been the general contractor, explaining that her husband and her son, who lived immediately next door to the Premises, often spoke, made joint decisions about the house, and negotiated together with various contractors (M. Crecco at 11).
The Creccos' general supervision of the Premises during its construction phase does not constitute direction or control as contemplated under Labor Law §§ 240 (1) and 241 (6), so as to preclude them from the homeowners' exemption. Despite G. Crecco's bravado statement of being the general contractor, his monitoring and involvement in aspects of the work "reflects typical homeowner interest in the ongoing progress of the work and does not constitute the kind of direction or control necessary to overcome the homeowner's exemption from liability" (Chowdhury v Rodriguez, 57 AD3d 121, 127 [2d Dept 2008]).
With respect to plaintiff's Labor Law § 200 claim:
"[s]ection 200 of the Labor Law merely codified the common-law duty imposed upon an owner or general contractor to provide construction site workmen with a safe place to work. An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition"(Russin, 54 NY2d at 316 - 317).
As indicated above, no evidence has been produced tending to show that the Creccos either supervised or controlled Aveiga's work, or any other aspect of the construction phase of the Premises. "Without this authority to control the activity producing the injury, [the Creccos] could not be liable to plaintiff under section 200 for failure to provide a safe place to work" (id. at 317).
The Creccos have demonstrated entitlement to summary judgment, and the papers submitted in opposition either assume facts, or offer suppositions, which are unsupported by competent evidence, and which fail to establish the existence of a question of material fact precluding summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Accordingly, the complaint and all cross claims against them must be dismissed, as are the cross claims asserted by the Creccos against ASNF.
Turning to the motion of ASNF, which seeks a dismissal of all claims against it on the ground that it "handed off" the written contract - - pursuant to which it agreed to provide materials and labor for the application of stucco to the exterior of the Premises, in exchange for the estimated amount of $24,000.00, which it executed with G. Crecco on September 24, 2013 - - to DaLomba, the motion is denied. Despite assertions intended to confuse the issues, the probative evidence is that ASNF was, at all relevant times, in the construction management business, that it entered into a written contract with the Creccos to stucco the Premises, and that it then engaged the services of DaLomba to perform the work in its stead.
During his deposition, the owner of ASNF, Donald Utschig (Utschig), attempted to avoid liability in this matter by explaining how the stucco job he gave to DaLomba to perform at the [*5]Premises differed from the typical hiring by a general contractor of a construction subcontractor to complete a specific job within a construction project. However, Utschig's repeated use of terms such as "handed off" and "assumed" to describe what occurred is inadequate to transform a construction subcontract into an assignment of rights and obligations. Utschig acknowledged that: (1) he went to the Premises to prepare the estimate for the stucco work (Utschig tr at 49); (2) the contract to install stucco on the Premises was between ASNF and the Creccos (id. at 17, 22); (3) he did not tell the Creccos at the time the contract was executed that ASNF was not going to be doing the work, but at a later time, he advised N. Crecco that he was going to use a subcontractor, probably DaLomba, to do the work (id. at 46, 49); (4) ASNF accepted payment from the Creccos for the work performed by DaLomba and then turned that amount over to DaLomba (id. at 40-42); (5) each time ASNF used DaLomba prior to the Crecco job, and each time ASNF used DaLomba after the Crecco job, its relationship with DaLomba was that of subcontractor (id. at 48-49); (6) prior to turning over the job to DaLomba, he checked with both his people and DaLomba's people to make sure insurance coverage was in effect with respect to the Crecco job (id. at 56); and (7) he was called to the scene after Aveiga's accident. Based on this evidence, it cannot be said, as a matter of law, that ASNF was not acting as a general contractor with respect to the subject work performed by DaLomba's employees, including Aveiga, at the Premises.
While there is a lack of evidence that ASNF supervised and/or controlled Aviega's work, entitling it to a dismissal of Aveiga's Labor Law § 200 cause of action, ASNF has failed to demonstrate entitlement to summary judgment as to either Labor Law § 240 (1) or Labor Law § 241 (6), or to the counter claims asserted against it by DaLomba, requiring a partial denial of its motion.
Accordingly, it is
ORDERED that the motion by defendants Giovanni Crecco and Maria Crecco, under motion sequence number 002, for summary judgment is granted, and the complaint and all cross claims are severed and dismissed as against defendants Giovanni Crecco and Maria Crecco, and the Clerk is directed to enter judgment in favor of said defendants, with costs and disbursements as taxed by the Clerk upon submission of an affirmed bill of costs; and it is further
ORDERED that the motion by plaintiff Luis Edwin Aveiga, under motion sequence number 003, for partial summary judgment as to liability on his cause of action pursuant to Labor Law § 240 (1) is granted and the issue of the amount of a judgment to be entered thereon shall be determined at the trial herein; and it is further
ORDERED that the motion by defendant/third-party plaintiff ASNF, LLC, under motion sequence number 004, is granted to the limited extent that plaintiff's Labor Law § 200 and common law negligence claims are dismissed as against said defendant, and the motion is otherwise denied; and it is further
ORDERED that the remainder of the action shall continue; and it is further
ORDERED that the remaining parties shall appear in the Settlement Conference Part, room 1600, Westchester County Courthouse, 111 Dr. Martin Luther King, Jr., Blvd., White Plains, New York, on Tuesday, November 14, 2017 at 9: 15 a.m., to schedule a date for trial.
This constitutes the decision and order of the Court.
Dated: October 4, 2017
White Plains, New York
ENTER:
_______________________________
HON. DAVID F. EVERETT, A.J.S.C.
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