Arias v Allen J. Reyen, Inc.

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Arias v Allen J. Reyen, Inc. 2019 NY Slip Op 34433(U) December 9, 2019 Supreme Court, Westchester County Docket Number: Index No. 59834/2018 Judge: Janet C. Malone 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] WESTCHESTER COUNTY CLERK 12/10/2019 11:26 AM NYSCEF DOC. NO. 69 INDEX NO. 59834/2018 RECEIVED NYSCEF: 12/10/2019 To commence the statutory time period of appeal s as of right (CPLR 55 I3[a]), you are advis ed to serve a copy of thi s order, with notice of entry, upon all patties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER COUNTY ---------------------·---------------------------------------------X RODRIGO ARIAS Index No. 59834/2018 Plaintif:f DECISION AND ORDER (Summary Judgment) -againstALLEN J. REYEN, INC. AND ALLEN J. REYEN, Defendants. Motion Sequences: 1 & 2 -------------------------------------------------------------------X MALONE, J. The following papers numbered 1-7 were read and considered in deciding Defendants ' motions for summary judgment: Numbered Papers Motion Sequence 1 Defendant AUen J. Reyen' s Notice of Motion/ Affirmation of Shawn D. Wagner, Esq . in Support/Exhibits A-E 1 Affirmation of Barry Semel-Weinstein, Esq . in Opposition/Exhibit B 2 2 Reply Affirmation of Shawn D. Wagner, Esq. 3 Motion Sequence 2 Defendant Allen .J. Reyen, Inc.' s Notice of Motion/Affirmation of Darren P. Renner, Esq.in Suppo11/Exrubits A-D 3 4 Memorandum of Law in Support by Darren P. Renner, Esq. 5 Affirmation of Barry Semel-Weinstein, Esq. in Opposition/ Exhibits A-B 6 Reply Memorandum of Law by Darren P. Renner, Esq. 7 Defendant Allen J. Reyen ' s Affidavit is Exhibit D to the Notice of Motion. Barry Semel-Weinstein, Esq.'s Affirmation in Opposition is one document filed in opposition to both Motion Sequences I and 2. f urther, as the purported affidavit of Pl aintiff Rodrigo Arias was translated to him and is filed without a corresponding affid avit from a qua Iified translator in compliance with [CPLR §210 I (b)] , the purported affidavit attached as Exhibit A to Barry Semel-Wein stein, Esq.' s Affirmation in Opposition, was not considered by the Court 3 Defe nd ant Allen J. Reyen·s Affidavit is Ex hibit D to the Notice of Motion. 1 2 1 1 of 5 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/10/2019 11:26 AM NYSCEF DOC. NO. 69 INDEX NO. 59834/2018 RECEIVED NYSCEF: 12/10/2019 Starting at the bottom of Plaintiff Rodrigo Arias' ("Plaintiff') purported affidavit is Rigoberto Reyes ' notarized statement that he translated to Plaintiff from English to Spanish the statements in Plaintiff's purported affidavit. As Mr. Reyes statement is insufficient under CPLR § 210l(b), which requires that Plaintiff's purported affidavit be accompanied by an affidavit from Mr. Reyes as to his qualifications as a translator, the Court has not considered the document Plaintiff's Counsel submits as Plaintiff's affidavit. See, Raza v. Gunik, 129 A.D.3d 700 (2d Dept. 2015), Martinez v. 123-16 Liberty Ave. Real(v Co,p, 47 A.D .3 d 901 (2d Dept. 2008), and Reyes v. Arco Wentworth Mgmt. Corp., 83 A.D .3d 47, 54 (2d Dept. 20 l l)("Accordingly, the plaintiffs English-language affidavit without a conesponding affidavit from a qualified translator, cannot be considered in opposition."). Regardless, Defendant Allen J. Reyen and Allen J. Reyen, Inc. (hereinafter individually Defendant Reyen, Defendant Reyen, Inc. and collectively Defendants"), still fail to make a prima facie showing of entitlement to judgment as a matter of law as there exists the questions whether the barn unattached from the single-family dwelling located at 23 White Birch Road, Pound Ridge, New York (the ·'Premises") exempts Defendants from liability for Plaintiff's alleged injuries under New York Labor Law §§ 200 , 240 and 241 and whether Defendants directed , supervised or controlled Plaintiff s work at the Premises. Therefore, summary judgment is denied as set forth herein. See, CPLR R 3212, Alvarez v. Prospect Hosp ., 68 N. Y.2d 320, 324, ( 1986) and Zuckerman v. New York, 49 N.Y.2d 557 (1980) ; see also, Affidavit of Allen J. Reyen , at paragraphs 1-5 as Exhibit D to Defendants ' Reyen ' s otice of Motions. By way of relevant background, Plaintiff alleges in the underlying personal injury action that while performing work at the direction of Defendant Reyen and Defendant Reyen, [nc., he fell 2 2 of 5 [*FILED: 3] WESTCHESTER COUNTY CLERK 12/10/2019 11:26 AM NYSCEF DOC. NO. 69 INDEX NO. 59834/2018 RECEIVED NYSCEF: 12/10/2019 from a ladder that Defendants directed him to use resulting in Plaintiff all egedly sustaining serious physical injuries. See, Summons and Verified Complaint as Exhibit A, Defendant All en J. Reyen 's Verified Answer as Exhibit B and Defendant Al len J. Reyen, Inc. ' s Verified Answer as Exhibit C on Motion Sequence 1. Undisputed is that Defendant Reyen is a co-owner of the single-family dwelling located at the Premises and that at the back of the single-family dwelling is an unattached barn. It is also undisputed that Defendant Reyen is a principal in Defendant Reyen Inc. a general contracting business in Stamford Connecticut. See, Affidavit of All en J. Reyen at paragraphs 1-5 as Exhibit D to Motion Sequences 1 and 2, Affirmation of Darren P. Renner, Esq . at paragraph 11 on Motion Sequence 2 and Verified Complaint at paragraphs 2-4 and 7-8 on Motion Seq uence 1. On Defendants ' motions for summary judgment they argue that under New York Labor Law §§ 200, 240 (1) and 241 (6), Defendants are exempt from li abi lity because located at the Premises is a single-famil y dwelling co-owned by Defendant Reyen and that neither Defendant Reyen nor Defendant Reyen, Inc. directed, supervised nor controlled Plaintiff's work at the Premises. See, Affirmation of Shawn D. Wagner, Esq . at paragraphs 23-39 on Motion Sequence 1 and Memorandum of Law in Support by Darren P. Renner, Esq . Nonetheless, Defendant Reyen , co-owner of the Premises, submitted the identical Affidav it in support of both motions brought by Defendants witho ut making it clear to the Court that he is authorized as a principal to speak on behal f of Defendant Reyen, Inc. when he states that he hired Jorge Cardona " ... to re-side my barn" in or about July 20 16, and that it was Mr. Cardona who brought Plaintiff to the Premises to work on the barn. Further Defendant Reyen ' s Affidavit states that Defendant Reyen, Inc . played no role in the re-siding work performed at the Premises in 20 16 and that Defendant Reyen did not give direction to Mr. Cardona or Mr. Cardona's workers with 3 3 of 5 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/10/2019 11:26 AM NYSCEF DOC. NO. 69 INDEX NO. 59834/2018 RECEIVED NYSCEF: 12/10/2019 respect to the re-sidi11g work on the barn at the Premises and that Defendant Reyen did not give Mr. Cardona or his workers permission to use any of the tools or materials located at the Premises. See, Affidavit of Allen J. Reyen, at paragraphs 8-14 as Exhibit D to Motion Sequences 1 and 2 Consequently, Defendants have fail ed to make a prima faci e showing that Plaintiff, was solely under the direction, supervision and/ or control of Mr. Cardona and not under the direction, supervision and/or control of Defendant Reyen and/or Defendant Reyen Inc. when Plaintiff performed work at the Premises. See, Affidavit of Defendant Allen J. Reyen, at paragraphs 4 and 8 as Exhibit D to Motion Sequences 1 and 2; see also, Verified Complaint at paragraphs 19-31. · Additionally, in dispute is whether Defendant Reyen uses the barn at the Premises as an extension of the single-family dwelling on the Premises or if the status of the barn as a dwelling was compromised by Defendant Reyen, Jnc. having allegedly used the barn to conduct business including on July 13 , 2016, when Plaintiff claims he fell off the ladder that Defendant Reyen and/or Defendant Reyen, Inc. allegedly provided to Plaintiff to perform work at the Premises. See, Verified Complaint at paragraphs 34-36 and Bill of Particulars as Exhibits A and E on Motion Sequence 1. Although Defendant Reyen states that the barn serves no commercial purpose for Defendant Reyen Inc. , again , Defendant Reyen s Affidavit is devoid of any language indicating that Allen J. Reyen is authorized to and is speaking on behalf of Defendant Reyen, Inc. in the Affidavit of Defendant Reyen. See, Affidavit of Allen J. Reyen, at paragraph 6 as Exhibit D to Defendant Reyen ' s Notice of Motion. Based on the foregoing Defendant Allen J. Reyen ' s motion for summary judgment is denied and Defendant Allen J. Reyen, Inc. s motion for summary judgment is denied. 4 4 of 5 [*FILED: 5] WESTCHESTER COUNTY CLERK 12/10/2019 11:26 AM NYSCEF DOC. NO. 69 INDEX NO. 59834/2018 RECEIVED NYSCEF: 12/10/2019 The Parties are to appear for a Pre-Trial Conference in the Settlement Conference Part, Courtroom 1600 at 9:15 a.m. on Tuesday, January 7, 2020. To the extent relief sought was not addressed herein, it is denied . This constitutes the Deci sion and Order of this Cowt. Dated: December 9, 2019 White Plains, New York ENTER : ~C.--~~ HONORABLEJANETc.MALONE Justice of the Supreme Court VIA NYSCEF: Shawn D. Wagner, Esq . Weber Gallagher Attorneys/or Defendant Allen J Reyen 1500 Broadway, Suite 240 I New York , New York 1003 6 Darren P. Renner, Esq. Kiedel , Weldon & Cunningham, LLP Attorneys/or Defendant Allen J. Reyen, Inc. 925 Westchester Avenue, Suite 400 White Plains, New York 10604 Barry Semel-Weinstein, Esqi. William Schwitzer & Associates P .C. Trial Counsel for Plaintiff 820 Second A venue, I 0 th Floor New York, New York 10017 Mark Edward Goldberg, Esq. Attorneys for Plaintiff 130 No11h Main Street Port Chester, New York l 0573 5 5 of 5

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