Da Conceicao v Posimato

Annotate this Case

Download PDF

Da Conceicao v Posimato 2018 NY Slip Op 34335(U) May 9, 2018 Supreme Court, Westchester County Docket Number: Index No. 68462/16 Judge: Lewis J. Lubell 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: WESTCHESTER COUNTY CLERK 05/09/2018 02:12 PM NYSCEF DOC. NO. 65 INDEX NO. 68462/2016 RECEIVED NYSCEF: 05/09/2018 Dispo Dispo To commence statutory commence the 30 day day statutory time period right period for appeals appeals as of right (CPLR 5513[a]), you are advised advised to 5513[a]), you serve with serve aa copy copy of this order, with notice upon all parties parties notice of entry, upon SUPREME THE STATE STATE of of NEW NEW YORK YORK SUPREME COURT COURT OF THE COUNTY OF WESTCHESTER COUNTY WESTCHESTER ----------~---~-----------------------x ----------~---~-------------------~---X FRANCISCO FRANCISCO DA CONCEICAO, CONCEICAO, DECISION & & ORDER ORDER DECISION Plaintiff, Plaintiff, Index No. 68462/16 68462/16 Index -against --against Sequence No. 2 & & 3 Sequence No.2 JOHN POSIMATO POSIMATO and PATRICIA PATRICIA PARDO, Defendants. Defendants. -------------------------------------x ---------------------~---------------X LUBELL, LUBELL,. J. J. The followingfollowing papers papers were considered considered in connection connection with with Motion Sequence by defendant defendant John Posimato Posimato for an Order Order Motion Sequence #2 by pursuant granting summary summary judgment; judgment; and Motion Motion pursuant to CPLR CPLR 3212 granting Sequence #3 by defendant defendant.Patricia Pardo for an Order Order pursuant pursuant to Sequence ,Patricia Pardo CPLR judgment: CPLR 3212 granting granting summary su~ary judgment: PAPERS PAPERS NOTICE OF MOTION/AFFIRMATION/AFFIDAVIT/ NOTICE MOTION/AFFIRMATION/AFFIDAVIT/ EXHIBITS EXHIBITS A-D A-D NOTICE NOTICE OF CROSS CROSS MOTION/AFFIDAVIT/AFFIRMATION/ MOTION/AFFIDAVIT/AFFIRMATION! EXHIBITS A-C EXHIBITS 1-4 AFFIRMATION IN OPPOSITION/EXHIBITS AFFIRMATION OPPOSITION/EXHIBITS AFFIRMATION IN OPPOSITION/EXHIBITS 1-4 AFFIRMATION OPPOSITION/EXHIBITS AFFIRMATION AFFI~MATION IN REPLY REPLY AFFIRMATION IN REPLY REPLY AFFIRMATION NYSCEF NYSCEF 36-43 36-43 44-49 44-49 51-55 51-55 56-60 .56-60 61 61 62 Plaintiff brings brings this· this personal personal injury injury action action to recover recover Plaintiff damages for inj uries sustained ,as the alleged r'esul t of damages injuries · sustained .as alleged result aa fall ladder which which occurred occurred while while painting painting the two-story two-story high high from aa ladder Baldwin Place Place Road, Mahopac, Mahopac, New one-family foyer of 231 Baldwin New York, aa .one-family residential dwelling · (the (the "Premi$es"). "Premises"). time residential dwell_ing At the time of the accident, accident, plaintiff plaintiff was employed employed by and doing d6ing work work for non-party non-party Michael's Painting which hired defendan~ John Michael's Fine Painting which was hired by defendan~ John [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 05/09/2018 02:12 PM NYSCEF DOC. NO. 65 INDEX NO. 68462/2016 RECEIVED NYSCEF: 05/09/2018 from which ladder defective Posimato. The allegedly allegedly defective ladder which plaintiff plaintiff The Posimato. Fine fell was was supplied supplied Michael's Fine Painting. Painting. by Michael's fell is ("Posimato") Liability against defendant John Posimato Posimato ("Posimato") is John defendant against Liability Premises of premised his alleged alleged status the lessee lessee of the the Premises as the status premised on his who hired contractor and, in in any event, event, as the the alleged alleged general contractor who hired general as and, the· Premises. mOving into his moving to his prior to Michael's Fine Painting Painting prior into the Premises. Fine Michael's the the owner of is Defendant Patricia Pardo ("Pardo") is sued sued as as the of the Pardo ("Pardo") Defendant Patricia for using Premises who who was was allegedly allegedly using the the Premises Premises for aa commercial commercial Premises use, i.e., i.e., she was was allegedly allegedly leasing the Premises Premises to to Posimato Posimato in in the leasing she use, home mortgage, exchange for for Posimato Posimato paying paying rent rent in in the the form of of mortgage, home exchange tax equity loan loan and property property tax payments payments for for the the Premises. Premises. equity under "It is well well settled set tled that, to recover recover under to that, is "It Labor Law Law §§200, ~~200, 240 240 and 241 241 as aa member member of of Labor protection these for the special special class ~or whose protection these class the must plaintiff must aa plaintiff provisions adopted, proviiions were adopted, that 1) criteria: establish two criteria: 1) that he was establish aa on work· perform to. permi tted or suffered to perform work suffered or permitted by the structure and, 2) 2) that that. · he was hired hired the and, structure or conttactoi owner, the the general general cont~acto~ or an agent agent df of owner, sky (Mordkof the owner or or general general contractor (Mordkofsky c·ontractor the N.Y.2d 573, v.V.C.V. Development Corp., Corp., 76 N.Y.2d V.C.V. Development v. N.E.2d 263, 576-577, 263, N.Y.S.2d .892, 563 N.E.2d 561 N.Y.S.2d892, 576-577, citing v.Warwick Val. Civic Civic & & Social Social Warwick Val. Whelen v. citing Club, 47 47 N.Y.2d 970,,971, 419 N.Y.S.2d N.Y.S.2d 959, 971, 419 N.Y.2d 970,. Club, ." 393 N.E.2d 1032)." N.E.2d 1032) 393 Owners (Brown vv Christopher Christopher st. Owners .Corp.,Corp., St. (Brown 1995], affd, affd, 87 NY2d NY2d 938 938 [1996]). [1996]). 87 Dept 1995], 211 AD2d AD2d 441, 442 [1st [1st if Notwi thst'cmding the somewhat convoluted, convoluted, if not not confusing, confusing, the Notwithstanding i:s there Premises, · transaction 1'}istory with respect to the. Premises, there is no the to respect with 1-}istory transaction genuine dispute dispute that Pardo is is the the owner and, and, at at the the very very least, least, Pardo that genuine hired who hired not the Posimato is is aa person in possession, if not the tenant, tenant, who possession, if person in Posimato Michael's Fine Painting. / Fine Painting. Michael's (see exemption Without regard regard ·to to the the oneone- and two-family two-family exemption (see Without Pardo infra), for plaintiff plaintiff to recover recover .. from defendant defendant Pardo in in her her to for infra)# capacity as owner owner pursuant pursuant to Lab6r Labor Law Law §240 ~240 or or §241, ~241, plaintiff plaintiff to as capacity had employer need to to establish that or his his employer had been been he or that· establish· would need v. Kaufman,. (Ceballos employed by. by defendant defendant .Pardo ,Pardo or or her her agent agent (Ceballos Kaufman, employed St. 249 AD2d AD2d 40, 40 40 [1st [1st Dept 1998] citing citing Brown v. Christopher Christopher St. Brown has Pardo issue, Owners, supra supra at at 442]). 442]). to this this issue, Pardo has respect to With respect form admissible in come forward with sufficient proof in admissible proof sufficient with forward come response, in and, establishing that such is not case and, in response, the case not the is that such establishing 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 05/09/2018 02:12 PM NYSCEF DOC. NO. 65 INDEX NO. 68462/2016 RECEIVED NYSCEF: 05/09/2018 that question of fact that material question plaintiff a material raise a failed to raise plaintiff has failed painting the of retention Pardo hired, or even knew of the retention painting was plaintiff was whom plaintiff Painting, for whom contractor, Michael's Michael's Fine Painting, contractor, action. this action. rise to this giving rise working accident giving working at the time of the accident action is causes of action As such, dismissal Labor Law causes dismissal of the Labor Crystal v. Crystal Aviles v. warranted (see, Brown, supra; Aviles Pardo (see, against Pardo warranted as against N.Y.S.2d 638) Mgmt., 233 A.D.2d 129, 650 N.Y.S.2d 638) A.D.2d 129, or directed Absent a showing that either defendant directed defendant either showing a Absent oneplaintiff at the onecontrolled performed by plaintiff being performed work being controlled the work place, the took place, accident took family underlying accident which the underlying premises at which family premises 241, Law §§240 Labor Law moving defendants are entitled entitled to the Labor ~~240 and and 241, moving defendants by imposed by exemption to liability one- and two-family liability imposed dwelling exemption two-family dwelling NY2d 362, 367 [1996]; those statues (see v. Buell, 87 NY2d Bartoo v. (see Bartoo those statues This is AD2d 452 [1996]). Xirakis This Fifth Ave. Corp., 226 AD2d v. 1115 Fifth Xirakis v. owner an as properly characterized defendants are properly characterized owner whether the defendants so whether v. 674 DeSabato v. premises (see lessee of this residential (see DeSabato residential premises or lessee v. Brown v. 2008]; Brown Carroll St. Corp., 55 AD3d [2d Dept 2008]; 656, 658 [2d AD3d 656, Carroll St. 1995], Dept [1st AD2d Christopher St. Owners Corp., 211 AD2d 441, 442 Dept Christopher St. Owners from exemption from express exemption affd, 87 [1996] ["In view view of the express NY2d 938 [1996] 87 NY2d (Labor two-family dwellings the statute statute for owners owners of one- and two-family dwellings tenant of mere tenant a mere Law §240), ~240), the extension extension liability to a of liability cipher."]). a cipher."]). residential premises is a residential premises have defendants have both defendants As to the direction control issue, both direction and control that form admissible in come forward with sufficient proof admissible form that proof forward with sufficient under work under over the work neither exercised direction and control control over direction neither exercised they dwelling. consideration single-family dwelling. As such, they consideration at this single-family a favor as a their favor judgment in their have established entitlement to judgment established entitlement to response in matter law. Court further response further finds that, The Court matter of law. triable issue raise aa triable failed to raise issue of fact plaintiff has failed same, plaintiff regarding regarding same. that suggestion that plaintiff's suggestion Finally, the Court Court finds that plaintiff's is not supported Posimato general contractor supported by any contractor Posimato was aa general evidence in admissible admissible form. form. evidence merit to any being no merit there being Based foregoing and there upon the foregoing Based upon defendants' response to defendants' other plaintiff in response raised by plaintiff contention raised other contention favor their in prima facie showing entitlement to judgment their favor as judgment entitlement of showing prima hereby a law, it is hereby matter of law, a matter ORDERED, that defendants' motions motions defendants' ORDERED, dismissed. respects complaint is dismissed. respects and the complaint The foregoing foregoing constitutes the Opinion, Opinion, constitutes 3 [* 3] are 3 of 4 granted granted Decision, Decision, in all Order and Order and FILED: WESTCHESTER COUNTY CLERK 05/09/2018 02:12 PM NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 05/09/2018 of the Court. Dated : White White. Pl~ins Plains,7 New York Dated: New York May 2018 May ff'-qf'-.- ,, Mark Edward Edward Goldberg, Goldbe~g, Esq. Mark Attorney for Plaintiff Attorney Plaintiff Main Street Street 130 North North Main Chester, NY 10573 Port Chester, Raneri Light Light & & Odell, PLLC Raneri By: Michael Michael _J. By: _J. Raneri, Esq. Attorney for Def. Def. Posimato Posimato Attorney Grand Street, Suite Suite 502 150 Grand White Plains, NY 10601 White Offices of Dominick Dominick Rendina Rendina The Law Offices By: Domionick Domionick ·Rendina, -Rendina, Esq. By: Attorney for for. Def. Def. Pard~ Pard~ Attorney 50 Grand Grand Street, Sutie Sutie 502 50 ~hite York 1-0601 1D601 White Plains, New York 4 [* 4] INDEX NO. 68462/2016 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.