Urquiza v Park & 76th St. Inc.

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Urquiza v Park & 76th St. Inc. 2018 NY Slip Op 30992(U) May 22, 2018 Supreme Court, New York County Docket Number: 158295/13 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 05/24/2018 11:07 AM 1] NYSCEF DOC. NO. 974 INDEX NO. 158295/2013 RECEIVED NYSCEF: 05/24/2018 SUPREME COURT OF THE STATE OF NEW YORK - PRESENT: NEW YORK COUNTY PART 13 MANUELJ.MENDEZ Justice ANTONIO URQUIZA a/k/a ANTONIO PELAGIO URQUIZA CARDENAS by MARTHA PARADA ARDAYA and STIVENS A. SANQUINO, as Co-Administrators of the Estate of ANTONIO PELAGIO URQUIZA a/k/a ANTONIO PELAGIO URQUIZA CARDENAS, Deceased, INDEX NO. MOTION DATE MOT. SEQ. NO. MOTION CAL. NO. 158295/13 04-25-18 024 _ _ _ __ Plaintiffs, -against- PARK AND 75rH ST. INC., MARY L. CARPENTER & EDMUND M. CARPENTER, NORDIC CUSTOM BUILDERS INC., MITCHELL STUDIO, LLC,GUMLEY-HAFT LLC, CUMMINS PAINTING SPECIALISTS INC., ARTHUR C. KLEM, INC., ALKLEM PLUMBING, INC., AA SERI/ICES LLC, GT CARPENTRY, LLC, CONNECTICUT THERMOFOAM LLC a/k/a CONNECTICUT THEROFOAM LIMITED LIABILITY COMPANY, ERIN CUSTOM INTERIORS, INC., W.M. SANFARDINO ELECTRIC LTD., and PLASTER WORKS INC., Defendants. and five other related third-party actions. The following papers, numbered 1 toR were read on this Motion pursuant to CPLR §3212 for summary judgment: PAPERS NUMBERED Notica d Motion/ Order to Show Cause -Affidavits Answering Affidavits - Exhibits ... Exhibits _ _ _cross motion 1-3 4 5 -6 7 8 -9 Repl) ing Affidavits - - - - - - - - - - - - - - - - - - - - - - - " 1 = 0 - -_,_11:..J.....!..!12,,___ _ Cross-Motion: Yes X No Upon a reading of the foregoing cited papers, it is Ordered that Mary L. Carpenter and Edmund M. Carpenter's motion pursuant to CPLR §3212 for summary jud~1ment dismissing the complaint, any and all cross-claims asserted against them, cand on their claims for common law indemnification asserted against Nordic Custom Builder's Inc. and in their second third-party action against Stephen Gamble Inc., is granted only as to dismissing the Labor Law §200 cause of action and those c:ro~;s ·claims not asserted by Park and 75th St. Inc. and Gumley-Haft LLC. The remainder of the relief sought in this motion is denied. Martha Parada Ardaya and Stivens A. Sanquio, as Co-Administrators of the Estcitu of Antonio Urquiza a/k/a Antonio Pelagio Urquiza Cardenas, deceased (hereinafter referred to as "plaintiffs") commenced this wrongful death and Labor Law §200,§ 240[1] and §241 [6] action to recover damages as a result of the personal injuries and death of Antonio Pelagio Urquiza Cardenas (hereinafter referred to individually as "decedent") on May 24, 2012, during a duplex renovation project, when he suddenly fell from a third floor window as he was staining an exterior woc·den window jamb, in a cooperative apartment located at 840 Park Avenue, '~partment 3/4A, New York, New York (hereinafter referred to as the "premises"). Plaintiffs allege that decedent was performing work in the course of his employment with Stephen Gamble, Inc., as directed by defendant Nordic Custom Builder's Inc. through its site supervisor, Declan O'Meara and his company Euro Wood Trim Inc.. It is further alleged that Declan O'Meara acting on behalf of all of the defondants, directed the decedent to stain the exterior wooden window jambs while 1 1 of 4 [*FILED: NEW YORK COUNTY CLERK 05/24/2018 11:07 AM 2] NYSCEF DOC. NO. 974 INDEX NO. 158295/2013 RECEIVED NYSCEF: 05/24/2018 standing on a piece of plywood - wrapped in construction paper-to protect a bronze grill on the radiator box, during a rainstorm. Plaintiffs claim that no adequate safety devices wer1:! provided by any of the defendants, all of whom retained supervision and control over the work site, instead the defendants relied on the inadequate and improper pro1ection of a decorative rail outside the window to prevent the decedent from falling. The premises are located in a building owned by Park and 75th Street, Inc., Gumley-Haft, LLC was the property manager. Mary L. Carpenter and Edmund M. Carpenter (hereinafter referred to jointly as "Carpenters") are the tenants, owning the . sha1-es of stock for the two apartments that make up the premises. Mitchell Studio, LLC (hereinafter referred to individually as "Mitchell") is the architecture firm retained by the Carpenters to design the interior renovation. Nordic Custom Builder's, Inc. (hereinafter referred to individually as "Nordic") was retained as the general contractor for the renovation project. Nordic hired Grace Ryan Magnus Millwork, LLC (hereinafter referred to individually as "GRMM") as a subcontractor to perform millwork and woodwork. GRMM subcontracted interior wood staining work to Stephen Gamble Inc., plaintiff's employer. Nordic also hired as a subcontractor, Euro Wood Trim, Inc., a company solely owned by Dec Ian O'Meara, to act as a site supervisor. The Carpenters seek an Order pursuant to CPLR §3212 for summary judgment dismissing the complaint and any and all cross-claims asserted against them, for summary judgment on their cross-claim against Nordic Custom Design for common law indE!rTmification, and on their Second Third-Party claims asserted against Stephen Gamble Inc., for common law indemnification. The Carpenters argue that they are immune from liability pursuant to the homeowner's exemptions found in Labor Law §240 [1]and §241 [6], as owners of a one family dwelling that did not control or direct the work. The residents of a one family dwelling, including a condominium or cooperative c1pa11rnent, are entitled to the exemption set forth in Labor Law §240 (1) and §241[6], when they do not control the injury producing work (See Valencia v. Calero, 5 A.O. 3d ~~54., 773 N.Y.S. 2d 295 [1st Dept., 2004], Brown v. Christopher St. Owners Corp. 211 A.O. 2d 441, 620 N.Y.S. 2d 374 [1st Dept., 1995] and Cannon v. Putnam 76 N.Y. 2d 644, 564 N.E. 2d 626, 563 N.Y.S. 2d 16(1990]). Plaintiffs' correctly argue that the Carpenters did not raise the homeowner's exemptions found in Labor Law §240 [1] and §241 [6] as an affirmative defense in their cmswer, and that summary judgment should be denied as to the causes of action c1ssnrted in the complaint. Plaintiffs do not bear the burden of disproving a defense that has never been raised, and the Court may not sua sponte take judicial notice of a clefon:;e that was not raised (De Oleo v. Charis Christian Ministries, Inc., 94 A.O. 3d 541, 942 N.Y.S. 2d 340 [1st Dept., 2012] and Horst v. Brown, 72 A.O. 3d 434, 900 N.Y.S. 2d 13 [1st DE!pt. 2010]). The argument made by the Carpenters that there is no surprise or pre,judice because the homeowner's exemption is common knowledge, is unsupported cincl unavailing. Labor Law § 200 imposes a common law duty on an owner or contractor and c1pplies to two categories of claims: (1) Those a arising from the manner of performance of the work which includes the equipment used, and (2) those arising from a dangerous condition on the premises (Cappabianca v. Skanska USA Bldg. Inc., 99 A.O. 3d 139, 950 N.Y.S. 2d 35 [1st Dept., 2012]). A precondition to liability under Labor Law § 200 claims arising from the manner of performance of the work is that the party charged must have authority or exercise dirnct supervisory control over the activity that resulted in the injury. Mere directions as to the time and quality of the work, picking out the type and color of paint, indicating arec:1s that need painting, and purchasing painting supplies, does not demonstrate c:ontrol or direction of the method and manner of the work, and is not enough to 2 2 of 4 [*FILED: NEW YORK COUNTY CLERK 05/24/2018 11:07 AM 3] NYSCEF DOC. NO. 974 INDEX NO. 158295/2013 RECEIVED NYSCEF: 05/24/2018 E!sta bl ish liability (Valencia v. Calero, 5 A.O. 3d 254, supra at pgs. 254-255, and Pareja v. Davis. 138 A.O. 3d 615, 30 N.Y.S. 3d 78 [1st Dept., 2016] ). The Carpenters have made a prima facie showing that they are not liable under Labor Law §200. Mary Carpenter testified at her deposition that she was not on the premises on the date of the accident, never met the Stephen Gamble Inc. employees, inducling the decedent, and that she never had discussions with her architect or with anyore else from either Nordic or Declan O'Meara and Euro Wood Trim Inc. about the work :.:>erformed by Stephen Gamble Inc. employees (Mot. Exh. V, pgs. 10-13, 21-22, 49, 55-5·6:. Plaintiffs have not raised an issue of fact to deny summary judgment under the Labor Law §200 cause of action, or established that the Carpenters exercised authority, or c:ontrolled the manner in which the work was performed. Choosing the stain used or beirig present on the premises at meetings to discuss the progress of work, does not amount to directing and supervising the work. Labor Law §200 also applies to an existing dangerous defect on the premises requiring that the defendant have either actual or constructive notice of the unsafe condition that caused the accident, with sufficient time prior to the accident to discover and mmedy it (Lopez v. Dagan, 98 A.O. 3d 436, 949 N.Y.S.2d 671 [1st Dept. 2012] and Me11d1>za v. Highpoint Assoc., IX, LLC, 83 A.O. 3d 1, 919 N.Y.S. 2d 129 [1st Dept., 2011]). Plaintiffs did not argue that the Carpenters had either actual or constructive notiCE! of any existing dangerous defect on the premises, warranting summary judgment on thu Labor Law §200 cause of action. The Carpenters made no arguments and have not met their prima facie burden for clisnii!>sing the cross-claims asserted by Park and 75th St. Inc., and Gumley-Haft LLC for indie!mnification under the proprietary lease, therefore summary judgment is denied as to that cross-claim. The Carpenters are entitled to unopposed summary judgment clismfr;sing all other cross-claims asserted against them. The Carpenters seek common law indemnification on their cross-claim against No1l'dii:: and on the second third-party claims asserted against Stephen Gamble Inc .. A party seeking common law indemnification is required to prove that it is not liable for negligence other than statutorily, and that the proposed indemnitor's negligence is the caw:;e of the accident or that it exclusively exercised supervision and control over the plaintiff's work (McCarthy v. Turner Construction, Inc., 17 N.Y. 3d 369, 953 N.E. 2d 794, 929 N.Y.S. 2d 556 (2011]). A party can only be liable under common-law indemnification when it exercises "actual supervision of the injury producing work." Mere authority to supervise the work and implement safety procedures is not enough (See Naughton v. City of New York, 94 A.O. 3d 1, 940 N.Y.S. 3d 21 [1st Dept., 2012] citing to McCarthy v. Turner Col'lstruction, Inc., 17 N.Y. 3d 369, supra at pgs. 376 and 378, and Ortiz-Cruz v. Evers, 150 Jt[I. 3d 622, 56 N.Y.S. 3d 71 [1st Dept., 2017]) David Gamble was deposed and testified on behalf of Stephen Gamble Inc. that the employees on the premises consisted of three brothers: (1) The decedent, (2) Ma1· ::elo Urquiza, (3) Jesus Urquiza, and Carlo Maldonado (Mot. Exh. P, pg. 24). He funlher testified that the decedent's foreman, his brother Marcelo Urquiza (translated through Carlo Maldonado), was told not to have Stephen Gamble Inc. employees perform the exterior work that the site supervisor Declan O'Meara wanted them to complete, but the employees did it anyway (Mot. Exh. P, pgs. 58-60 and 62). There is other deposition testimony from Carlo Maldonado that Mr. Gamble did not call the employees back to tell them whether or not to complete the exterior jamb work that Declan O'Meara wanted clone (Mot. Exh. R pgs. 45-48 and 79-80). Marcelo Urquiza testified at his deposition that David Gamble (translated through Carlo Maldonado) told his employees to do the uxt1=-rior work if that is what Declan O'Meara told them to do (Mot. Exh. T pgs. 23-24). Declan O'Meara testified at his deposition that David Gamble suggested that the exterior jambs needed to be stained and that he did not request that work (Mot. Exh. M, pg. 91 ). 1 1 1 1 3 3 of 4 [*FILED: NEW YORK COUNTY CLERK 05/24/2018 11:07 AM 4] INDEX NO. 158295/2013 NYSCEF DOC. NO. 974 RECEIVED NYSCEF: 05/24/2018 Nordic also had a representative at the premises on the day of the accident (Mot. Exh. M, pg. 26). Issues of fact and credibility issues remain on the negligence claims against both Nordic and Stephen Gamble Inc. and whether supervision and control over the work on the exterior jamb was exercised exclusively by Stephen Gamble Inc .. In light of the conflicting testiimony as to the decedent being directed and supervised by Declan O'Meara as site sup1:!rvisor and potential agent of Nordic, there are issues of fact to be resolved by a jury at trial. Accordingly, it is ORDERED that Mary L. Carpenter and Edmund M. Carpenter's motion pursuant to CPLR §3212 for summary judgment dismissing the complaint, any and all cross-claims asserted against them, and on their claims for common law indE!mnification asserted against Nordic Custom Builder's Inc., and their second thirdparty action against Stephen Gamble Inc., is granted only as to dismissing the Labor Law §200 cause of action and those cross-claims not asserted by Park and 76th St. Inc., and Gumley-Haft LLC, and it is further, ORDERED that the cause of action pursuant to Labor Law §200 asserted in the complaint against Mary L. Carpenter and Edmund M. Carpenter is severed and disnr1issed, and it is further, ORDERED that all cross-claims asserted against Mary L. Carpenter and Edmund M. Carpenter except those asserted by Park and 76th St. Inc., and Gumley-Haft LLC, are sev1?red and dismissed, and it is further, ORDERED that the remainder of the relief sought in this motion is denied, and it is further, ORDERED that the Clerk of the Court shall enter judgment accordingly. ENTER: Dat1~d: MANOElJ.MENDEZ, J.S.C. [\fiA!'\!UEL J. MENDEZ May 22, 2018 ChE~Ck one: D FINAL DISPOSITION Check if appropriate: D x NON-FINAL DISPOSITION DO NOT POST 4 4 of 4 D REFERENCE J.s.c.

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