Flores v Community Hous.Mgt. Corp.

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Flores v Community Hous.Mgt. Corp. 2019 NY Slip Op 34588(U) May 21, 2019 Supreme Court, Westchester County Docket Number: Index No. 51288/2017 Judge: Linda S. Jamieson 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. NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11:2 NYSCEF DOC. NO. 91 Disp_x_ Dec of right (CPLR § 5513 [al), you are advised to serve a RECEIVED NYSCEF: 05/22/2019 copy of this order, with notice of entry, upon all parlies. Seq. Nos. _2-3_ Type _SJ_ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------x EDWIN FLORES and BRENDA TORRES, Index No. 51288/2017 Plaintiffs, DECISION AND ORDER -againstCOMMUNITY HOUSING MANAGEMENT CORP., Defendant. ----------------------------------------x COMMUNITY HOUSING MANAGEMENT CORP. Third-Party Plaintiff, -againstPEAK PERFORMANCE AND SERVICE, INC., Third-Party Defendant. ----------------------------------------x The following papers numbered 1 to 5 were read on these motions: Notice of Motion, Affirmation and Exhibits 1 Notice of Motion, Affirmation and Exhibits 2 Affirmation in Opposition 3 Reply Affirmation 4 Reply Affirmation 5 There are two motions for summary judgment in this Labor Law and negligence case. The first motion was filed by Community Housing Management Corp. ("Community"). Peak Performance and Service, Inc. [* 1] The second is filed by ("Peak"). 1 of 10 At the outset, the NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11:2 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/22/2019 Court points out that plaintiffs do not object to the dismissal of the claims arising under Labor Law§§ 200 and 241(6). causes of action are thus dismissed. Those That leaves only the negligence and Labor Law§ 240 claims. The Facts The facts are undisputed. Plaintiff Flores was the superintendent of a residential property owned by non-party Stuhr Gardens, LLC ("Stuhr"). property. Defendant Community manages the The president and sole owner of Community, Eugene Conroy, and Cynthia Apicella, an employee of Community and the property manager for Stuhr, hired plaintiff to work as the superintendent. Plaintiff reported to Apicella, but he was paid by Stuhr. Community and Peak had a contract in which Peak, a boiler service and repair contractor, was to maintain and repair the boilers at Stuhr. It was a flat-fee contract, meaning that if plaintiff called Peak for a repair, the only charge would be for the cost if a part was needed. On the day of the accident, Apicella told plaintiff that there was a problem in a boiler room, and told him to fix it. There is no dispute that plaintiff did not call Peak (although it is unclear as to whether this was because Apicella told him not to, or because plaintiff chose not to). When he got to the boiler room, plaintiff saw that there was water on the floor, and 2 [* 2] 2 of 10 NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11:2 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/22/2019 that the hot water pump was leaking. He took the materials he needed, including a ladder, and proceeded to replace the part. Plaintiff testified at his deposition that he slipped on the ladder, and fell. He did not know what caused the fall. Although asked repeatedly, plaintiff was quite sure that he did not know what caused him to slip and fall. He had been up and down the ladder several times, removing the old pump and getting the new one. Plaintiff testified that he did not notice the ladder shaking or wobbling, but that since there was water on the floor, there could have been water on the ladder. Plaintiff also testified that he had to lean off the ladder in an awkward position in order to reach the area of the pipes. This was not the first time that plaintiff had done this sort of work. Plaintiff testified that he had replaced this sort of equipment probably more than five times. Plaintiff further testified that replacement of the pump would be routine maintenance. Plaintiff also testified that there was no construction going on at the premises at the time of his accident. Analysis It is well-settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the 3 [* 3] 3 of 10 NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11: NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/22/2019 motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). The Court begins with the claims arising under Labor Law§ 240 (1) . This section provides, in relevant part, that All contractors and owners and their agents . in the erection, demolition, repairing . . of a building 6r 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. As the Court of Appeals has held, "Throughout our section 240(1) jurisprudence we have stressed two points in applying the doctrine of strict (or absolute) liability. First, that liability is contingent on a statutory violation and proximate cause . . violation of the statute alone is not enough; plaintiff is obligated to show that the violation was a contributing cause of his fall, and second, that when those elements are established, contributory negligence cannot defeat the plaintiff's claim." Blake v Neighborhood Haus. Servs. of N.Y. City, 1 N.Y.3d 280, 771 N.Y.S.2d 484 citation omitted). (quotations and The Court went on to note that "an accident 4 [* 4] (2003) 4 of 10 INDEX NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERK 05/22/2019 11: NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/22/2019 alone does not establish a Labor Law§ 240(1) violation or causation" because some times "the plaintiff is solely to blame for the injury." In this case, the Court first examines whether what plaintiff was doing at the time of his accident constitutes "repairing" as set forth above. This is a paramount consideration, because while repairs are covered by the statute, "routine maintenance" is not. Holdings, Tserpelis v. Tamares Real Estate Inc., 147 A.D.3d 1001; 1002, 47 N.Y.S.3d 131, 132 Dept. 2017). (2d "In determining whether a particular activity constitutes 'repairing,' courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1). Generally, courts have held that work constitutes routine maintenance where the work involves replacing components that require replacement in the course of normal wear and tear." P.C., 152 A.D.3d 650 Ferrigno v. Jaghab, (2d Dept. 2017) Jaghab & Jaghab, (Emphasis added). The key distinction here is whether the boiler was still functioning at the time of the replacement of the part. Second Department has explained, As the "The replacement of a worn-out component in an operable piece of machinery constitutes "routine maintenance" rather than "repair" or "alteration," and thus falls outside the protective scope of Labor Law§ 240(1). Gonzalez v. Woodbourne Arboretum, Inc., 100 A.D.3d 694, 5 [* 5] 5 of 10 697, 954 NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11:2 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/22/2019 N.Y.S.2d 113, 116 (2d Dept. 2012). occurred in this case. This is precisely what Although it, was leaking, the boiler was still working at the time; indeed, plaintiff testified that it was very hot in the room at the time of the accident. All that plaintiff did was determine that a part had to be replaced, and proceed to do it (until he had the accident). This is simply routine maintenance, as the Court of Appeals has defined it. See, e.g., Abbatiello v. Lancaster Studio Assocs., 3 N.Y.3d 46, 53 (2004) ("plaintiff determined that the cause of the defective signal was water in the tap, a common problem caused by rainwater accumulating in junction boxes affixed to building exteriors. The remedy would have been to loosen a few screws and drain the water from the tap and, if worn out, replace the tap. These activities constitute routine maintenance and not repair as contemplated by Labor Law§ 240(1) ."); Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528 (2003) ("When checking the 22nd floor unit, plaintiff discovered a low amperage reading and heavy vibrations. The motor appeared worn and loose, and the belts were chewed up. He left and returned with tools and parts needed to fix the machine. As he climbed a ladder and began to remove the unit's cover a second time, the bottom of the ladder 'kicked out' and he fell."). Even if plaintiff were engaged in covered repair work, he would still not have a Labor Law§ 240(1) claim. 6 [* 6] 6 of 10 Plaintiff has NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11: NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/22/2019 not established, and cannot establish, that any problem with the adequacy of the ladder or a missing safety device caused his fall. This is because plaintiff has no idea what caused him to fall from the ladder; it is entirely possible that plaintiff caused the fall himself, either from his unusual position on the ladder or because his shoes and the ladder were wet. "To sustain a cause of action under section 240(1), the plaintiff must establish that the defendant breached the statutory duty to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries." Homes, Inc., Dept.), lv. Kipp v. Marinus 162 A.D.3d 1673, 1674-75, 79 N.Y.S.3d 800, 802 (4 th to app. den., 32 N.Y.3d 911 (2018). Since here plaintiff does not know what caused h~m to fall, he cannot establish the proximate cause, as a matter of law. Accordingly, the Court finds that plaintiff's claims are thus not covered by Labor Law§ 240(1}. This cause of action is thus dismissed. Turning next to Peak's motion, Peak establishes, without contradiction, that it did not create any dangerous condition in the boiler room, or have actual or constructive knowledge of any hazard in the boiler room. Cruceta v. Funnel Equities, Inc., 18 A.D.3d 693, 694, 795 N.Y.S.2d 728, 729 establish liability, (2 Dept. 2005) (to "plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the 7 [* 7] 7 of 10 NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11:2 NYSCEF DOC. NO. 91 condition.). RECEIVED NYSCEF: 05/22/2019 Peak's motion is thus granted in its entirety, and the third-party complaint is dismissed. Similarly, to the extent that the first cause of action purports to assert a negligence claim against Community, it also must be dismissed. Plaintiff cannot establish that Community created any dangerous condition or had any knowledge, actual or constructive, of any dangerous condition. of City of N.Y., Dept. 1986) Fink v. Bd. of Educ. 117 A.D.2d 704, 705, 498 N.Y.S.2d 440, 441 (2d ("The plaintiffs failed to show that the defendant created the condition, therefore they had to establish actual or constructive notice as an element of their prima facie case. The plaintiffs failed to present probative evidence as to the defendant's actual or constructive notice of the allegedly dangerous condition; therefore the dismissal of the complaint was proper."). Community also argues that plaintiff's claims against it are barred because of the Worker's Compensation award he received. Community asserts that although he was employed by Stuhr, Community was a "special employer" because it was the one that controlled all of his work, and that as a result, plaintiff may not seek damages from it. "When an employee elects to receive workers' compensation benefits from his general employer, a special employer is shielded from an action at law commenced by the employee. A special employee is described as 'one who is 8 [* 8] 8 of 10 NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11:2 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 05/22/2019 transferred for a limited time of whatever duration to the service of another. Principal factors in determining the existence of a special employment relationship include who has the right to control the employee's work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer's or the general employer's business. The key to the determination is who controls and directs the manner, details and ultimate result of the employee's work." Ugijanin v. 2 W. 45th St. Joint Venture, 43 A.D.3d 911, 912-13, 841 N.Y.S.2d 611, 613 (2d Dept. 2007) Here, it appears that plaintiff was a special employee of Community, which appears to have controlled everything that occurred at Stuhr. In any event, as the Court has dismissed all of plaintiff's claims for other reasons, the action must be dismissed in its entirety. The foregoing constitutes the decision and order of the Court. Dated: White Plains, New York May 1,J_, 2019 ~~ Justice of the Supreme Court 9 [* 9] 9 of 10 NO. 51288/2017 FILED: WESTCHESTER COUNTY CLERKINDEX 05/22/2019 11:2 NYSCEF DOC. NO. 91 To: RECEIVED NYSCEF: 05/22/2019 Hach & Rose, LLP Attorneys for Plaintiffs 112 Madison Ave., 10 th Fl. New York, NY 10016 The Tierney Law Group, LLC Attorneys for Community 175 Main St., #612 White Plains, NY 10601 Law Offices of Stewart H. Friedman Attorney for Peak 401 Franklin Ave., #314 Garden City, NY 11530 10 [* 10] 10 of 10

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