Healy v EST Downtown, LLC

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Healy v EST Downtown, LLC 2019 NY Slip Op 33953(U) June 3, 2019 Supreme Court, Erie County Docket Number: 805232/2017 Judge: III, Frank A. Sedita 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: 1] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 At a Special Term of the Supretre Court, held in and fur the Colll!ty of Erie at Buffillo, New York on the 3"' day of Jlll!e, 2019. PRESENT: HON. FRANK A. SEDITA, Ill, J.s.c. Justice Presiding STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE JAMES HEALY, AMENDED ORDER Plaintiff; vs. Index#: 805232/2017 EST DOWNTOWN, LLC c/o FIRST AMHERST DEVELOPMENT GROUP, Defendant. The defendant, EST Downtown, LLC c/o First Amherst Development Group, by it's attorneys the Law Offices of John Wallace, having moved this Court fur an Order dismissing Plaintiff's Complaint; and the plaintiff; James Healy, by his attorneys Dolce Panepinto, P.C., having moved this Court fur an Order of Summary Judgirent; and said motions duly coire on to be heard, NOW, upon reading defendant's Notice ofMotion dated March 27, 2019 together with the Affirmation ofJaires J. Navagh, Esq., dated March 27, 2019, with attached exhibits and Memorandum of Law in support of said motion; and the affidavit ofBeqjamin Obletz sworn to March 26, 2019 with exhibits A through C in support of defendant's motion; and upon reading Plaintiff's Notice of Motion dated March 28, 2019 together with the supporting Affirmation of Anne M. Wheeler, Esq. dated March 28, 2019, with attached exhibits A through Q and 1 of 29 [*FILED: 2] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 Memorandum of Law; and upon reading plaintiff's Opposing Affirmation of Anne M. Wheeler, Esq. dated April 26, 2019; and upon reading defendant's Opposing Affirmation ofJames J. Navagh, Esq. dated April 29, 2019 with exhibits A through C, and upon reading Defendant's Reply Affirmation ofJames J. Navagh, Esq. dated May 10, 2019; and after hearing Dolce Panepinto, PC. , Marc C. Panepinto, Esq., counsel for the plaintiff; and Law Offices of John Wallace, James J. Navagh, Esq., counsel for the defendant; and after due dehberation thereon, and in accordance with the Decision ofJune 3, 2019 , the transcript of which is attached hereto as Exhibit A ; it is hereby ORDER ED , that plaintiffs motion is GRANTED to the extent that it seeks a finding of liability against defendant pursuant Labor Law §240(1); and it is fiuther ORDERED , that plaintiffs motion is GRANTED to the extent that it seeks a finding striking the affirmative defense that the claim is barred by Section 11 of the Workers' Compensation Law based on a theory that the plaintiff's employer is an "alter ego" of the defendant; and it is fiuther ORDERED, that defendant's motion is DENIED to the extent that it seeks to dismiss the Labor Law §240( l) cause of action and to the extent that it seeks a dismissal of the action based on Section 11 of the Workers' Compensation Law; and it is fiuther SO ORDERED. GRANTED: ~ j~ J.).,J..Dl£:\ / 2 2 of 29 [*FILED: 3] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 STATE OF NEW YORK COUNTY OF ERIE SUPREME COURT PART 30 JAMES HEALY, Plaintiff, -vs- Index No. 805232/2017 MOTION EST DOWNTOWN, LLC c/o FIRST AMHERST DEVELOPMENT GROUP, Defendant. Erie County Court Building 50 Delaware Avenue Buffalo, New York 14202 June 3, 2019 B e f o r e: HONORABLE FRANK A. SEDITA, III. Supreme Court Justice App e a r a n c e s: MARC C. PANEPINTO, ESQ. Appearing for the Plaintiff JAMES A. NAVAGH, ESQ. Appearing for the Defendant ASHLEY OVERHOLT, NYACl'l, NYl'lCl'l Senior Court Reporter Ashley Overholt, NYACR, NYRCR Senior Court Reporter 3 of 29 [*FILED: 4] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 2 1 (Proceedings commenced at 1:59 p.m.) 2 THE CLERK: This is the matter of Healy versus 3 EST Downtown LLC, Index number 805232/2017. 4 please state your appearance for the record. MR. PANEPINTO: 5 6 Marc Panepinto, for the plaintiff, James Healy. 7 MR. NAVAGH: 8 THE COURT: 9 Counselors, remain seated. James Navagh, for the defendant. Good afternoon, Counsel. You can I'm going to put some things on the 10 record to sort of frame the record. Then at the 11 appropriate time, I will invite oral argument. 12 wish to make oral argument, please stand and address the 13 Court at that moment, and hopefully I can make some 14 rulings today. If you 15 Before the Court are several summary judgment 16 motions -- mainly defendant EST Downtown LLC's motions 17 for summary judgment -- as to the plaintiff's claims 18 under Labor Law 240 subdivision 1, 241 subdivision 6, 19 and 200. 20 There's also plaintiff's motion for partial summary 21 judgment with respect to his claim under Labor Law 240 22 subdivision 1. 23 And both parties have made a summary judgment 24 motion regarding the so-called alter ego affirmative 25 defense. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 4 of 29 [*FILED: 5] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 3 1 By way of background, this is a so-called scaffold 2 law case involving a falling worker. 3 facts are as follows: The essential 4 First Amherst Development Group -- First Amherst, 5 I'll refer to them as -- is a property management and 6 maintenance company that manages both commercial and 7 residential properties. 8 9 10 11 First Amherst was established, approximately, 60 years ago. In 2014, the company was owned by Benjamin Obletz, 0-B-L-E-T-Z, and several Obletz family trust. 12 EST Downtown LLC -- I'll call that EST, 13 on forward -- is a limited liability corporation 14 established in 1999 for the sole purpose of ownership of 15 the Lofts at Elk Terminal, 250 Perry Street, in the City 16 of Buffalo. 17 from here The Lofts at Elk Terminal is a commercial property. 18 They have both residential and commercial space. 19 EST is owned by -- or at least was owned by 20 Benjamin Obletz. 21 EST contracted with First Amherst for property 22 management and maintenance of the Lofts at Elk Terminal. 23 EST paid maintenance and service fees to First Amherst 24 for the services. 25 Plaintiff is or was employed as a maintenance Ashley Overholt, NYACR, NYRCR Senior Court Reporter 5 of 29 [*FILED: 6] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 4 1 2 worker for First Amherst. Plaintiff's job duties included performing daily 3 maintenance tasks at various properties, as well as 4 responding to specific work orders to address specific 5 problems and issues at various properties including the 6 Lofts at Elk Terminal. 7 The maintenance shop for First Amherst is located 8 in the basement of the Elk Terminal building, and that 9 is where the plaintiff reported to work each day. 10 On May the 16th, 2014, the plaintiff responded to a 11 work order at the Lofts at Elk Terminal. 12 was submitted by a commercial tenant with a specific 13 complaint. 14 The work order The tenant complained that a bird had burrowed into 15 the gutter through a hole, about six inches by six 16 inches, and there was an excess of bird excrement 17 soiling the entryway to the tenant's shop. 18 Plaintiff had an eight-foot stepladder and a work 19 truck and responded to the area of affected gutter. 20 intended to remove the bird's nest from the gutter, and 21 then repair the hole in the gutter with sheet metal. 22 The plaintiff set up his ladder on the concrete 23 dock flooring outside of the affected tenant's shop 24 below the affected gutter. 25 this particular ladder, because it was the proper Plaintiff testified he used Ashley Overholt, NYACR, NYRCR Senior Court Reporter 6 of 29 He [*FILED: 7] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 5 1 2 elevation for the job. The plaintiff also testified that he tapped the 3 bottom of the gutter, and the area of the bird's nest 4 multiple times in an effort to dislodge the bird. 5 After several taps with no result or response, the 6 plaintiff reached his hand into the gutter to pull the 7 bird or the nest out. 8 9 10 Plaintiff describes what happened next as follows -- and I quote from his testimony: The bird flew out, startled me, and the ladder 11 walked. 12 concrete and landed on my right hip and elbow. 13 I lost my balance and fell backwards onto the And further in this regard, the plaintiff also 14 testified, quote, when the bird flew out and startled 15 me, my body shifted on the ladder, and the ladder walked 16 from underneath of me from its original position, and I 17 fell backwards, close quote. 18 The plaintiff's lawsuit sets forth causes of action 19 under Labor Law 240 subdivision 1; Labor Law 200, and 20 general negligence; and Labor Law Section 241 21 subdivision 6. 22 As previously noted, defendant EST moves for 23 summary judgment seeking to dismiss the plaintiff's 24 claims under Labor Law 240 subdivision 1, 241 25 subdivision 6, and 200. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 7 of 29 [*FILED: 8] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 6 1 2 3 4 5 The defendant also moved for summary judgment in favor on its alter ego, affirmative defense. Defendant EST's principal arguments or contentions are as follows: One, that plaintiff's Labor Law 240 sub 1 claim 6 should be dismissed because he was merely engaged in 7 routine maintenance at the time of the accident. 8 9 10 Two, that plaintiff's Labor Law 241 sub 6 claim should be dismissed because there was no violation of the New York State Industrial Code. 11 Three, that plaintiff's Labor Law 200 and/or 12 general negligence claims should be dismissed because 13 there was no dangerous condition, let alone one which 14 the defendant either created or of which it had notice, 15 in other words, no proof of premises liability. 16 Four, all of the plaintiff's claims under the Labor 17 Law should be dismissed under the Workman's Compensation 18 Law, because defendant EST was merely an alter ego of 19 the defendant -- plaintiff's employer, 20 thus limiting any plaintiff recovery to that of 21 Workman's Compensation. 22 First Amherst, The plaintiff opposes all the relief requested by 23 the defendant and moves for summary judgment in his 24 favor, on his Labor Law 240 subdivision 1 claim, as well 25 as the question of whether EST is merely or was merely Ashley Overholt, NYACR, NYRCR Senior Court Reporter 8 of 29 [*FILED: 9] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 7 1 the alter ego of First Amherst. 2 Plaintiff's principal contentions are as follows: 3 One, that he has established liability as a matter 4 of law on his 240 sub -- 240 sub 1 claim, because he was 5 engaged in work covered by the statute and a violation 6 of that statute was a proximate cause of the accident. 7 Two, that an issue of fact exists regarding whether 8 the New York State Industrial Code was violated, 9 barring summary judgment in defendant's favor under 10 thus Labor Law 241 subdivision 6. 11 Three, that there exists an issue of fact regarding 12 premises liability, thus barring summary judgment in the 13 defendant's favor under Labor Law Section 200. 14 15 16 17 18 19 20 And four, EST was not the alter ego of First Amherst. Defendant EST opposes the affirmative relief requested by the defendant. I ' l l invite oral argument. I'll limit it to ten minutes. Mr. Navagh, you struck first, 21 MR. NAVAGH: 22 THE COURT: 23 MR. NAVAGH: right? That's right, Your Honor. You get to go first. Thank you. Thank you. 24 Thank you for summarizing the posture accurately. 25 We have fairly extensive papers. I think Ashley Overholt, NYACR, NYRCR Senior Court Reporter 9 of 29 [*FILED: 10] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 8 1 everything was covered pretty well in the papers. 2 think that the positions and the arguments are fairly 3 simple. 4 5 I will review, you know, THE COURT: you will. 8 9 10 the highlights of my -- of my argument, and my position, but -- 6 7 I If you can do it in ten minutes Go ahead. MR. NAVAGH: I may not need it. We'll see. don't want to jinx myself. Essentially, the main position is this is routine 11 maintenance, and it's routine maintenance for several 12 reasons. 13 about the scaffolding that the scaffold law 14 specifically 240 subdivision 1, it lists several 15 categories, and if it's protected work under one of 16 those categories, 17 applies. 18 it's cleaning, and those are two of the categories. 19 It -- essentially, it's -- the -- it's talking then 240 subdivision 1 potentially I think the argument is it's either repair or Again, this is addressed in the papers. 20 position is it's not 21 a nest from a gutter is not cleaning. 22 I this is not cleaning. Our Removing I cited several cases where the Courts address 23 cleaning a gutter and saying that's not the type of 24 industrial cleaning that's covered by 240 subdivision 1. 25 Mr. Panepinto has -- in his papers, or papers from Ashley Overholt, NYACR, NYRCR Senior Court Reporter 10 of 29 [*FILED: 11] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 9 1 his office by Anne Wheeler, she talks about the fact 2 that this isn't cleaning leaves out of a gutter. 3 THE COURT: Look, I'm not too worried about 4 cleaning. 5 maintenance, not so much cleaning. 6 My focus on 240 subdivision 1 is routine MR. NAVAGH: Okay. Well, it seems to me that 7 the heart -- the heart of that argument, 8 a repair, and there's several issues about this, 9 think the -- maybe the biggest issue is that the Second is that this is so I 10 Department seems to have addressed this -- a mirror 11 image of this case, and said, if you've got a gutter 12 that's functional, 13 you have to patch that, put -- you know, 14 metal and patch it up, 15 routine maintenance; it's not a repair. 16 repair, because it's not broken. 17 gutter. 18 specifically addressed the question of, 19 putting patches on there, 20 21 22 and an animal is burrowing in it, and cut out sheet that's not routine -- that is It's not a It's a functional The water is flowing through it, and the Court if you're isn't that a repair. The Court said, well, you're basically just replacing a component part. And I think I cited some of the cases, but 23 essentially, there's cases that say, if you're replacing 24 something that wears down over time, 25 light bulb or something, like a belt or a that's -- that's replacement of Ashley Overholt, NYACR, NYRCR Senior Court Reporter 11 of 29 [*FILED: 12] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 10 1 a component part; it's not a repair. 2 That's what the Second Department said. 3 The question is, what's different about this case. 4 The answer is, there's nothing different. Okay? They 5 were both at a height. 6 making holes or going in holes. 7 size. 8 is that it's routine maintenance, because the Second 9 Department has already addressed this, and for the 10 I think if you They both involved animals The holes were the same I think that the clearer answer reasons that they relied on, it's routine maintenance. Now, I 11 think that the -- there's a wealth of 12 evidence that indicates that he never really intended to 13 patch those holes. He -- there was a work order, and the work order 14 15 was something that he had to sign out when he was 16 finished, so a couple months after this incident he 17 signed out; he said, bird's nest removed, completed, 18 so 19 We have his -- his accident report, where he says 20 he was taking out a bird's nest, and we have the job 21 order saying job completed, bird's nest removed, and 22 that's inconsistent with his deposition testimony, and 23 there just seems to be no other evidence from anybody. 24 25 But the point is, really, that the second -- we don't really need that part, because this Court is -Ashley Overholt, NYACR, NYRCR Senior Court Reporter 12 of 29 [*FILED: 13] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 11 1 you know, has to follow the precedence of the Second 2 Department as to whether this is routine maintenance. 3 Another point -- 4 THE COURT: I was intending to follow the 5 precedence of the Fourth Department on that issue, 6 but -- 7 MR. NAVAGH: If there's a Fourth Department 8 case that conflicts with the Second Department, 9 the -- the appellate -- the rule is that this Court is 10 bound by the Court of Appeals, any decisions by the 11 Fourth Department, and if there's no decisions by the 12 Fourth Department, then -- then precedence -- 13 14 15 THE COURT: stare decisis. Counsel, I'm aware of the rules of I understand. MR. NAVAGH: Correct. That was my point. I 16 never implied that this Court wasn't bound by the Fourth 17 Department. 18 So in any event, I think there's a question about 19 whether there's a violation, 20 proof of a violation of Labor Law 240 subdivision 1, 21 because every fall from a height is not covered by 240 22 subdivision 1. 23 or whether there's any There has to be -- plaintiff has to establish that 24 the fall was caused by a violation of the statute, which 25 would be a failure to provide an adequate safety device. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 13 of 29 [*FILED: 14] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 12 1 The plaintiff's testimony is that he had an 2 eight-foot ladder to do this job -- it was an adequate 3 device -- and that he fell, 4 and as a result, his body moved; the ladder fell, and so 5 there was no failure to provide an adequate safety 6 device. 7 because a bird startled him, Again, that's the plaintiff's own testimony. So I think for those reasons -- I think there's 8 some subtleties to those arguments, but I think they've 9 been addressed in detail in the papers. 10 I don't -- As far as the alter ego argument, my position is 11 that the case law, essentially, lists a number of 12 criteria that the Courts will look at, 13 something of a sui generis decision. 14 to establish to -- a checkmark after each one, and my 15 position is that there's enough of a similarity that the 16 alter ego applies, but I don't have anything more to say 17 about alter ego. 18 19 20 21 I think I'm done. and it's It's not necessary I don't know if I finished with time to spare. THE COURT: You've got time to spare, Mr. Navagh. 22 MR. NAVAGH: 23 THE COURT: 24 MR. PANEPINTO: 25 THE COURT: Good. Mr. Panepinto is not getting it. All right, Judge. It's 2:16, Mr. Panepinto. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 14 of 29 [*FILED: 15] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 13 1 2 3 4 MR. PANEPINTO: I will be briefer than that. I'm going to take the arguments in reverse order that Mr. Navagh dealt with. The alter ego defense, the Buchwald case, which is 5 a Fourth Department case, 6 have companies that have separate purposes, separate tax 7 ID numbers, 8 returns, they're separate companies. 9 Buchwald decision, the alter ego defense won't apply. 10 2018, is very clear. separate bank accounts, As to the violation, If we file separate tax If we follow the I think Your Honor captured 11 the violation when he talked about in his recitation of 12 the facts, 13 And in the Fourth Department, a walking ladder case is 14 prima facie evidence that the ladder did not achieve its 15 core function, and so it was not properly operated or 16 placed, so the ladder walking deals with the 240 17 decision. 18 that -- the testimony is, the ladder walked. I would agree with Mr. Navagh, that the most 19 difficult thing for the Court to deal with is the 20 covered-work issue. 21 relied primarily on the theory of 22 Mr. Healy was doing was ancillary to a larger alteration 23 and repair project. 24 25 And the covered-work issue, we that the work that And I rely on Mr. Navagh's papers, when he basically admits in paragraph I of his affirmation, he Ashley Overholt, NYACR, NYRCR Senior Court Reporter 15 of 29 [*FILED: 16] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 14 1 says, sometime before the accident the area of the 2 gutter around the downspout had rotted out, and water 3 leaked out of the gutter. 4 To correct this problem, a roofing contractor was 5 hired to line the original gutter with a water-tight 6 membrane on top of the gutter. 7 gutter functional; however, 8 below the membrane were never repaired. 9 The membrane made the the holes in the gutter Mr. Healy goes out there that day to fix the holes 10 in the gutter that the roofing contractor did not 11 repair, and that's how the bird infiltrated the bottom 12 of the gutter, and the functionality of the gutter is 13 really not dispositive, and if we look at the Azad case, 14 which is a Second Department case, which Mr. Navagh 15 relies on, 16 different than the Fourth Department. 17 18 19 the Azad Court cites a standard that's They say that for this to be routine maintenance, only that the gutter needs to be inoperable. Well, if we look at the Court of Appeals -- or the 20 Bissell decision from the Fourth Department, 21 decision in 2006 lays out -- operability, malfunction, 22 or not working properly are the three standards for 23 repair, and a gutter is not working properly if there's 24 a hole in the bottom of it that a bird can get up into, 25 but more than that, it's not it's an alteration to Ashley Overholt, NYACR, NYRCR Senior Court Reporter 16 of 29 the Bissell [*FILED: 17] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 15 1 the structure of the building by putting the rubber 2 membrane in that Mr. Healy was there to complete that 3 day. 4 5 6 I think there's a distinction from Azad. a wrong premise. We provided the Court with the briefs on that last 7 Friday. 8 wanted to get those briefs, and we really -- We apologize for that late submission, but we THE COURT: 9 10 They cite So it's your contention it's an improperly working gutter? MR. PANEPINTO: 11 Correct, and that it's 12 answering an order. 13 an outlier that would not have been decided the same way 14 in the Fourth Department, and with that, 15 Your Honor. THE COURT: 16 17 Your Honor, the Azad case is really I'll sit down, Thank you, Mr. Panepinto. So we'll start with the general, and then move to 18 the specific claims and issues that are before the 19 Court. 20 to unpack here. We'll spend a little bit of time. There's a lot 21 Summary judgment permits a party to show by 22 affidavit or other evidence that there is no material 23 issue of fact to be tried, and that judgment may be 24 directed as a matter of law, Brill versus City of New 25 York, 2 NY3d 648. The proponent of summary judgment Ashley Overholt, NYACR, NYRCR Senior Court Reporter 17 of 29 [*FILED: 18] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 16 1 motion must make a prima facie showing of entitlement to 2 judgment as a matter of law, tendering sufficient 3 evidence to demonstrate the absence of any genuine, 4 material issues of fact. 5 Once this showing has been made, the burden shifts 6 to the party opposing the motion for summary judgment, 7 to produce evidentiary proof in admissible form 8 sufficient to establish the existence of material issues 9 of fact, which require a trial of the action, Alvarez 10 versus Prospect Hospital, 11 judgment can neither be awarded nor defeated on the 12 basis of conclusory assertions. 13 to evidentiary facts, 14 S-E-N-A-T-0-R-E, 15 68 NY2d 320; however, summary In contrast, of course, Lopez versus Senatore, 65 NY2d 1017. So starting with the parties' motions and 16 contentions regarding Labor Law Section 240 subdivision 17 1, that statute imposes a nondelegable duty upon 18 contractors and owners to furnish or erect suitable 19 devices to protect workers who are engaged in, quote, 20 the erection, demolition, repairing, altering, painting, 21 cleaning, or pointing of a building or structure, close 22 quote. 23 In order to be entitled to summary judgment in his 24 favor, the plaintiff must, therefore, demonstrate that 25 the work he was performing was, one, covered by the Ashley Overholt, NYACR, NYRCR Senior Court Reporter 18 of 29 [*FILED: 19] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 17 1 statue, and two, that a statutory violation was a 2 proximate cause of the accident. 3 Regarding the former, the critical inquiry in 4 determining coverage under the statute is what type of 5 work the worker was performing at the time of the 6 injury. 7 Buckmann, B-U-C-K-M-A-N-N, versus State, 64 AD3d 8 137, Fourth Department 2009, it is well settled that the 9 statute does not however apply to routine maintenance in 10 a nonconstruction, nonrenovation context. 11 0-Z-I-M-E-K, versus Holiday Valley Inc, 12 Fourth Department case in 2011, quote, delineating 13 between routine maintenance and repairs is frequently a 14 close, 15 whether the item being worked on was inoperable or 16 malfunctioning prior to the commencement of the work. 17 Pieri, P-I-E-R-I, versus B&B Welch Associates, 74 AD3d 18 1727, Fourth Department case from 2010, that case also 19 held that when the plaintiff is troubleshooting an 20 uncommon malfunction, that activity is also protected 21 under Labor Law Section 240 subdivision 1. Ozimek, 83 AD3d 1414, fact-driven issue, and the distinction depends on 22 So it is uncontroverted that the plaintiff was 23 dispatched to address the issue of a bird burrowed in a 24 gutter causing excrement falling in the gutter. 25 opposed to routine gutter cleaning or routine gutter Ashley Overholt, NYACR, NYRCR Senior Court Reporter 19 of 29 As [*FILED: 20] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 18 1 repair occasioned by normal wear and tear, 2 plaintiff's task to rid the gutter of a foul fowl and to 3 repair the hole and the improperly working gutter was 4 akin, in the Court's opinion, to troubleshooting an 5 uncommon malfunction. 6 the plaintiff has demonstrated that he was engaged in 7 covered work under Labor Law 240 subdivision 1. 8 9 Accordingly, the the Court finds that The Court also finds that the violation of Labor Law 240 subdivision 1 was, at least, a proximate cause 10 of the injury. Accordingly, plaintiff has made a 11 requisite prima facie showing for summary judgment in 12 its favor on the issue of liability. 13 Now the burden shifts. 14 It is well settled that once the plaintiff 15 establishes both elements -- statutory violation and 16 proximate cause -- a claim of contributory negligence 17 cannot defeat the plaintiff's claim under Labor Law 240 18 sub l; however, 19 plaintiff's entitlement to summary judgment by raising 20 an issue of fact about whether the plaintiff's own 21 conduct was the sole proximate cause of the accident. 22 See Weitzel, W-E-I-T-Z-E-L, versus State, 160 AD3d 1394, 23 Fourth Department case from 2018. 24 the defendant must establish that the ladder utilized by 25 the plaintiff was the improper device or was misused or the defendant may still defeat More specifically, Ashley Overholt, NYACR, NYRCR Senior Court Reporter 20 of 29 [*FILED: 21] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 19 1 misplaced by the plaintiff. 2 M-A-R-I-N-U-S, Homes, 3 Department case from 2018. 4 See Kipp versus Marinus, Inc, 162 AD3d 1673, Fourth The defendant contends because the plaintiff was 5 startled by a bird, he must be the sole proximate cause 6 of the fall. 7 fallacy. 8 other, logically. 9 Such an argument is merely a non sequitur It's a nonsec. One does not flow from the Additionally, this argument fails to take into 10 account the plaintiff's testimony regarding the movement 11 of the ladder. 12 The defendant has thus failed to demonstrate that 13 there is a genuine issue of fact as to whether 14 plaintiff's own conduct was the sole proximate cause of 15 the fall. 16 Accordingly, summary judgment is granted in 17 plaintiff's favor on the issue of liability under his 18 Labor Law 240 subdivision 1 claim. 19 Next, let's consider the claim under -- motions 20 under Labor Law 241 subdivision 1. Regarding 21 plaintiff's claims under this statute, this statute 22 imposes a nondelegable duty of care upon owners and 23 contractors to provide reasonable and adequate 24 protection to workers under various provisions of the 25 New York State Industrial Code. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 21 of 29 [*FILED: 22] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 20 1 A plaintiff must be able to prove a specific 2 violation of the Industrial Code, 3 a failure to use reasonable care, and that it was a 4 proximate cause of the plaintiff's injury. that the violation was 5 The plaintiff seeks summary judgment -- 6 The defendant contends that the plaintiff has 7 failed to offer any proof of an Industrial Code 8 violation. 9 in his complaint, and I guess amplified in his Bill of 10 Particulars, are completely and entirely devoid of any 11 factual support, whatsoever. 12 In other words, the plaintiff's allegations The plaintiff contends that there is sufficient 13 evidence to at least raise an issue of fact, 14 specifically, what's most concentrated on in the motion 15 papers was an issue of fact under 12 NYCRR 23-1.21 16 subdivision B, paragraph 4, subparagraph II, that that 17 regulation was violated. 18 follows: 19 That regulation reads as Quote, general requirements for ladders. All 20 ladder footings shall be firm. 21 insecure objects such as bricks and boxes shall not be 22 used as ladder footings. 23 Slippery surfaces and Plaintiff's contention that there was an issue of 24 fact -- whether this regulation was violated -- is 25 premised upon an OSHA -- the Occupational Safety and Ashley Overholt, NYACR, NYRCR Senior Court Reporter 22 of 29 [*FILED: 23] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 21 1 Health Act regulation, which -- and I quote from the 2 plaintiff's papers -- expressly contemplates concrete as 3 a slippery surface, close quote. 4 It's an interesting argument; however, there is no 5 actual evidence in the record that the concrete surface 6 was slippery at the time of the plaintiff's fall, nor is 7 there any evidence that the ladder footings were not 8 firm. 9 In other words, the plaintiff's contention rests 10 not upon evidentiary fact, but upon conclusory assertion 11 and, 12 really, theory. The Court finds the defendant has made a prima 13 facie case for summary judgment in its favor, and that 14 the plaintiff has failed to raise an issue of fact. 15 Accordingly, defendant's motion for summary 16 judgment resulting in dismissal of plaintiff's Labor Law 17 241 subdivision 6 claim is granted. 18 Labor Law 200 and general negligence. Labor Law 19 Section 200 is a codification of the common law duty of 20 owners and general contractors to provide workers on a 21 job site with a safe place to work. 22 To establish a violation of Labor Law Section 200, 23 plaintiff must prove that his injury arose from, 24 the means and methods used, and that this defendant 25 maintained authority and control over those means and Ashley Overholt, NYACR, NYRCR Senior Court Reporter 23 of 29 one, [*FILED: 24] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 22 1 methods; or two, that the injury was caused by a 2 dangerous condition on the premises of which defendant 3 had actual or constructive notice. 4 The Court finds the defendant has made a prima 5 facie showing that neither of these theories are 6 applicable. 7 demonstrated that EST did not maintain control over the 8 work performed by the plaintiff, and there was no 9 dangerous condition. 10 In other words, the defendant has The plaintiff contends that there is an issue of 11 fact as to whether a dangerous condition on the property 12 resulted in the plaintiff's incident. 13 contemplate a concrete surface as a slippery surface for 14 the purpose of ladder use. 15 as to whether the slippery nature of that surface 16 contributed to the plaintiff's ladder shifting and 17 walking, OSHA standards There is a question of fact thereby contributing to his fall. 18 That's the plaintiff's contention. 19 I think the plaintiff's argument fails to consider, 20 however, 21 whatsoever, of any slippery surface occurring at the 22 time of the plaintiff's fall. 23 once again, there is no actual evidence, The plaintiff has thus failed to raise an issue of 24 fact as opposed to -- good theory, maybe, but fails to 25 raise an issue of genuine fact, and defendant's motion Ashley Overholt, NYACR, NYRCR Senior Court Reporter 24 of 29 [*FILED: 25] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 23 1 for summary judgment on Labor Law 200 is, 2 granted. 3 therefore, Finally, the defendant's alter ego affirmative 4 defense. 5 in the course of their employment, their sole remedy 6 against their employer lies in their entitlement to 7 recovery under the Workers' Compensation Law, and the 8 protection against lawsuits brought by injured workers. 9 This also extends to entities which are alter egos of As a general rule, when employees are injured 10 the entity which employs the plaintiff. 11 B-U-C-H-W-A-L-D, versus 1307 Porterville Road, 12 AD3d 1464, Fourth Department case in 2018. 13 held as follows -- and I quote, a defendant may 14 establish itself as the alter ego of a plaintiff's 15 employer by demonstrating that one of the entities 16 controls the other; or, 17 integrated entity. 18 determination of that issue include whether the two 19 entities share common purpose, have integrated or 20 commingled assets, share a tax return, 21 the owners as a single entity, share the same insurance 22 policy, and share managers, or are owned by the same 23 person. 24 25 Buchwald, LLC, 160 That case that the two operate as a single Factors relevant to the are treated by Additional factors include whether the alter ego has any employees, whether the alter ego leases property Ashley Overholt, NYACR, NYRCR Senior Court Reporter 25 of 29 [*FILED: 26] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 24 1 pursuant to a written lease, or pays rent to the 2 plaintiff's employer, and whether one entity pays the 3 bills for other, even if those bills are for the benefit 4 of the nonpaying entity, close quote. 5 In this case, the defendant has alleged an alter 6 ego affirmative defense and contends the plaintiff's 7 claim is barred by the Workers' Compensation Law. 8 9 Plaintiff moves for summary judgment and seeks dismissal of this alter ego affirmative defense. In 10 this regard, plaintiff highlights that defendant EST was 11 established in 1999 for the sole purpose of owning the 12 Lofts at Elk Terminal. 13 Development Group -- which is the employer -- was formed 14 60 years earlier as a property management company which 15 maintains several commercial and residential properties. 16 Both companies share a common owner, but both entities 17 are also owned by separate trusts. 18 separate tax returns, maintain separate bank accounts. 19 EST Downtown contracted with First Amherst for property 20 maintenance services and pays for those services. 21 Some of the -- some of the proof in this By contrast, First Amherst Both companies file 22 case -- the defendant opposes the plaintiff 's motion 23 for summary judgment and moves for summary judgment on 24 its own behalf, arguing that EST is an alter ego of 25 First Amherst. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 26 of 29 [*FILED: 27] ERIE COUNTY CLERK 07/22/2019 03:54 PM NYSCEF DOC. NO. 68 INDEX NO. 805232/2017 RECEIVED NYSCEF: 07/22/2019 25 1 The defendant's argument focuses on two factors -- 2 that both companies share an insurance policy, and that 3 EST has only one employee 4 The defendant basically ignores all the other factors 5 discussed by the Court in Buchwald, which is a Fourth 6 Department case, to support that contention. 2018. 7 The Court finds that the plaintiff has met his 8 burden, and the defendant has failed to meet its burden 9 on summary judgment. As to whether the defendant has, 10 nonetheless, sufficiently raised an issue of fact to 11 defeat summary judgment in the plaintiff's favor, while 12 it is true that both companies share an insurance 13 policy, 14 one of the entities controls the other, or that the two 15 operate as a single integrated entity. 16 conclusion would be speculative. 17 there is no actual evidence to the effect that The Court, therefore, To make that finds that defendant has 18 failed to raise a genuine issue of fact regarding 19 whether defendant EST is the alter ego of defendant 20 First Amherst. 21 More simply put, the Court finds that EST and First 22 Amherst are separate and distinct entities and do not 23 qualify as alter ego or mirror corporations as a matter 24 of law. 25 Accordingly, plaintiff's motion for summary Ashley Overholt, NYACR, NYRCR Senior Court Reporter 27 of 29 [*FILED: 28] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 26 1 judgment resulting in dismissal of the alter ego 2 affirmative defense is granted. 3 this regard is denied. 4 Defendant's motion in To recap and review, plaintiff's motions 5 regarding -- plaintiff's motion for summary judgment in 6 its favor regarding Labor Law 240 subdivision 1, 7 granted. 8 Regarding dismissal of alter ego defense, granted. 9 Defendant's motion regarding dismissal of Labor Law 10 11 12 240 subdivision 1, denied. Dismissal of Labor Law 241 subdivision 6, granted. Dismissal of Labor Law 200, granted. 13 Alter ego defense, denied. 14 Jury selection is scheduled for September 5th 15 16 through 6th of 2019. The next appearance is scheduled at least for a 17 final pretrial conference on August the 23rd of 2019. 18 We usually have them at 11:00. 19 It's probably at 11:00. If the parties want to set up a settlement 20 conference or contemplate a return date before the final 21 pretrial conference of August 23rd, 22 urge you to stop next -- stop by next door to my 23 chambers and see my law clerk, 24 regard. 25 MR. PANEPINTO: I would strongly Kristin St. Mary, Thank you, Your Honor. Ashley Overholt, NYACR, NYRCR Senior Court Reporter 28 of 29 in that [*FILED: 29] ERIE COUNTY CLERK 07/22/2019 03:54 PM INDEX NO. 805232/2017 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/22/2019 27 1 THE COURT: She's available. 2 Mr. Panepinto, I think -- I don't -- I don't know. 3 I haven't -- I haven't counted who -- who -- I haven't 4 done the ledger. 5 submit the proposed order within two weeks with a 6 transcript attached. Panepinto, 8 THE COURT: Gentlemen, anything else we need to do? 10 MR. NAVAGH: 11 MR. PANEPINTO: 12 THE COURT: 13 I'm directing you to (Discussion held off the record.) 7 9 Mr. I think that covered it. Thank you, Your Honor. Thank you. (Proceedings concluded at 2:38 p.m.) 14 I hereby certify that the foregoing is a true and accurate 15 transcription of the proceeding. 16 17 18 ASHLEY OVERHOLT, NYACR, NYRCR SENIOR COURT REPORTER 19 20 21 22 23 24 25 Ashley Overholt, NYACR, NYRCR Senior Court Reporter 29 of 29

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