Marquez v Inwood Lake LLC

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Marquez v Inwood Lake LLC 2019 NY Slip Op 34818(U) January 23, 2019 Supreme Court, Dutchess County Docket Number: Index No. 2017-51118 Judge: Christi J. Acker 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: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 INDEX NO. 2017-51118 RECEIVED NYSCEF: 01/23/2019 commence the To commence the 30-day 30-day statutory time statutory time period period for appeals appeals ofright as of right (CPLR (CPLR 5513[aJ), 5513[a]), you are advised to serve a copy copy of of this order, order, with notice of of entry, upon all parties. parties. SUPREME COURT COURT OF THE THE ST STATE SUPREME ATE OF NEW NEW YORK YORK COUNTY DUTCHESS COUNTY OF DUTCHESS -------------------------------------------------------------x -------------------------------------------------------------x NORBERTO GUEVARA NORBERTO GUEVARA MARQUEZ, MARQUEZ, Plaintiff, Plaintiff, DECISION AND DECISION AND ORDER ORDER -against-against- Index No.: No.: 2017-5 2017-51118 Index 1118 INWOOD and THE TOWNHOMES INWOOD LAKE LAKE LLC and THE TOWNHOMES INWOOD LAKE LAKE HOMEOWNERS HOMEOWNERS AT INWOOD ASSOCIA nONS, INC., ASSOCIATIONS, INC., Defendants. Defendants. -------------------------------------------------------------x -------------------------------------------------------------x The following papers connection with with Defendant Defendant The The The following papers numbered numbered 1-24 were were considered considered in connection Townhomes Homeowners Associations, (hereinafter "Defendant "Defendant HOA") Townhomes at Inwood Inwood Lake Lake Homeowners Associations, Inc.'s Inc. 's (hereinafter HOA") motion CPLR 3212 granting summary judgment motion for an Order Order pursuant pursuant to CPLR granting summary judgment and dismissal dismissal of of Plaintiff's Complaint and and all cross-claims cross-claims and for the costs incurred with with Plaintiffs Complaint costs and disbursements disbursements incurred making this motion: making this motion: Notice of Motion-Affirmation of Wells, Esq.-Exhibits A-O ............................. 1-17 Notice of Motion-Affirmation of Paul J. Wells, Esq.-Exhibits A-O Affirmation in Opposition Opposition of of Andrew Smiley, Esq.-Exhibits Esq.-Exhibits 1-3 ........................... 18-21 Affirmation Andrew J. Smiley, Reply of Paul Paul J. Wells, Wells, Esq.-Exhibits Esq.-Exhibits A-B. A-B ............................................. 22-24 22-24 Reply Affirmation Affirmation of This action action was was commenced commenced by Plaintiff PlaintiffNorberto Guevara Marquez ("Plaintiff") on or Norberto Guevara Marquez ("Plaintiff') about June June 15, 15,2016, New York County. 1I It is alleged that on or aboutJuly 1,2014, about 2016, in New York County. alleged that about July 1, 2014, at 1 I This matter 17,2017 Lucy Billings, Billings, This matter was transferred transferred to Dutchess Dutchess County County pursuant pursuant to the March March 17, 2017 Order Order ofHon. of Hon. Lucy J.S.C.:. J.S.C.:_ [* 1] 1 of 10 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 INDEX NO. 2017-51118 RECEIVED NYSCEF: 01/23/2019 which on which townhome on of a townhome roof of the roof off the approximately injured when when he fell off Plaintiff was injured pm, Plaintiff approximately 8:30 pm, Townhomes · The Townhomes known as The development known he within a development located within townhome was located The townhome working. The was working. he was time of York. At the time New York. at Inwood address of of 53 Halley of Poughkeepsie, New _Ct.,2 Poughkeepsie, Halley Ct,,2 with an address Lake, with Inwood Lake, at Inc. Group Inc. Remodeling Group Northeast Remodeling the accident, Plaintiff non-party Northeast employed by non-party was employed Plaintiff was the accident, law sounding in commonDefendants sounding Plaintiff common-law against the Defendants action against of action causes of asserts causes Plaintiff asserts to In order 241(6). In 240(1) and Law §§200, negligence 99200, 240(1) and 241(6). order to Labor Law of Labor violations of asserting violations negligence and asserting a. law, a. of law, these sections under these Plaintiff under evaluate Defendant sections of liability to Plaintiff potential liability HOA 's potential Defendant HOA's evaluate occurred is critical. accident occurred the accident which the determination of its status critical. premises on which the premises relation to the status in relation determination of upon an imposed upon duty imposed common-law duty the common-law "Section 200 of the an codified the merely codified Law merely Labor Law the Labor 200 of "Section work." to work." place to safe place with a safe workmen with owner general contractor construction site workmen provide construction contractor to provide or general owner or 240(1) sections 240(1) 316-17 [1981]. Russin [1981]. Similarly Similarly, , sections NY2d 311, 316-17 Son, 54 NY2d Picciano & Son, Louis N. Picciano v. Louis Russin v. their and their owners and "contractors and owners of "contractors and 241(6) ofthe.Labor Law detail responsibilities of the responsibilities detail the the .Labor Law 241 (6) of and Defendant sections, Defendant these sections, under these liable under agents." order to be liable matter, in order instant matter, the instant such, in the As such, agents." As these entities. agent of HOA.must general contractor of one one of of these entities. contractor or an agent owner, general be an owner, necessarily be HOA.must necessarily Defendant premises. Defendant the premises. of the owner of the owner not the It is HOA is not Defendant HOA that Defendant W1contested that is uncontested It to thereafter failed but thereafter Complaint, but Inwood (hereinafter "Inwood Lake") failed to answered the Complaint, Lake") answered ter "Inwood LLC (hereinaf Lake LLC Inwood Lake this 2018, this August 9, 2018, dated August Order dated result, by Order comply Court's discovery orders. As a result, discovery orders. with the Court's comply with However, Defendant. However, against said Court granted Plaintiffs said Defendant. default judgment against motion for defaultjildgment Plaintiff s motion Court granted defendant said defendant default, said before its default, pursuant Inwood before Defendant Inwood submitted by Defendant Answer submitted the Answer to the pursuant to Defendant Accordingly, Defendant injured. Accordingly, admitted ownershipp of Plaintiff was injured. which Plaintiff premises on which the premises of the admitted ownershi & Erin Ct. "#53m Erin Court" and "#53m Erin Court" ''#53m Erin Plaintiffs Ct. & premises as "#53m the premises identifies the Particulars identifies of Particulars Bill of and Bill Co~plaint and Plaintiffs Complaint Halley 53 is property the of address proper the that the proper address of the property is 53 Halley Holley uncontested that appears uncontested However, it appears respectively. However, Ct.," respectively. Holley Ct.," 22 Court. Court. [* 2] 2 2 of 10 INDEX NO. 2017-51118 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/23/2019 HOA is not the owner. Therefore, Defendant Defendant HOA liable under these sections sections of of owner. Therefore, HOA can only only be liable under these law if general contractor contractor or an agent agent of if it is a general of the owner owner or general general contractor. contractor. Defendant HOA moves summary judgment grounds that owe Defendant HOA moves for summary judgment on the grounds that it did not not owe Plaintiff general contractor contractor or statutory statutory agent agent for either either the owner owner or Plaintiff a duty and that it was not a general general contractor of of the premises premises on which which Plaintiff Plaintiff was injured. injured. Defendant Defendant HOA HOA also seeks seeks general contractor summary judgment cross claims were asserted asserted by defaulting Inwood claims that that were defaulting Defendant Defendant Inwood summary judgment as to all cross Lake. As a preliminary answer of Lake has been stricken, the preliminary matter, matter, as the answer of Ddendant Defendant Inwood Inwood Lake been stricken, cross claims claims contained have also been stricken. Therefore, Therefore, Defendant motion contained therein therein have been stricken. Defendant HOA's HOA's motion summary judgment asserted by Defendant Inwood Lake for summary judgment dismissing dismissing any cross cross claims claims asserted Defendant Inwood Lake is granted. granted. , Defendant HONs application application to dismiss dismiss Plaintiffs Defendant HOA's Plaintiffs claims claims includes includes 'the the pleadings, pleadings, Plaintiff's of Particulars, transcripts of and Defendant Particulars, the deposition deposition transcripts of Plaintiff Plaintiff and Defendant Plaintiff's Verified Verified Bill of HOA's 2014 HOA's witness Coleman, Defendant Defendant HONs HOA's witness Ronald Ronald Coleman, 2014 Financial Financial Statement, Statement, a sampling sampling of of building permits permits for townhomes development at issue issue and a similar building townhomes in the development similar sampling sampling of of records records of of inspections. inspections. It is well settled settled that motion for summary summary judgment, "must make that on a motion judgment, the proponent proponent "must make a -. prima showing of of entitlement entitlement to judgment oflaw, tendering sufficient evidence evidence prima facie facie showing judgment as a matter matter oflaw, tendering sufficient eliminate any material issues of offact Winegrad v. New to eliminate material issues fact from the case." case." Winegradv. New York Univ. Med. Ctr., 851, 852 [1985]; [1985]; Zuckerman of New NY2d 557 [1980]. [1980]. Once Once such such a 64 NY2d NY2d 851,852 Zuckerman v. v. City of New York, 49 49NY2d showing has of proof shifts such that an opponent showing ~as been been made, made, the burden burden of proof shifts opponent to a motion motion for summary judgment must demonstrate existence of genuine triable triable issue of fact. Alvarez v. of a genuine issue of Alvarez v. summary judgment must demonstrate the existence 3 [* 3] 3 of 10 INDEX NO. 2017-51118 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/23/2019 Prospect Prospect Hasp., Hosp., 68 NY2d NY2d 320 [1986]; [1986]; Vermette v. v. Kenworth Kenworth Truck Truck Co., 68 NY2d NY2d 714 [1986]. [1986]. The papers submitted in support support of of and in opposition opposition to a summary summary judgment should be papers submitted judgment motion motion should scrutinized scrutinized in a light light most most favorable favorable to the party party opposing opposing the motion. motion. Dawsey Dawsey v. v. Megerlan, Meger/an, 121 AD2d AD2d 497 [2d Dept. Dept. 1986]; 1986]; Gitlin Gitlin v. v. Chirkin, Chirkin, 98 AD3d AD3d 561 [2d Dept. 121 Dept. 2012]. 2012]. Plaintiff herein claims claims that while he was working working on the roof subj ect townhome, Plaintiff herein that while roof of of the subject tovvnhome, he balance and lost his balance and fell off off the roof. He further further avers avers that that because of the lack of of safety safety because of protection ground two floors below. below. There There is no allegation allegation that that Plaintiff Plaintiff fell protection he fell to the ground because of a defective condition. As such, when of the means means defective or dangerous dangerous condition. when "a claim claim arises arises out of because of liable for common-law common-law negligence and methods methods of of the work, work, a defendant defendant may may be held liable negligence or a violation of of Labor Law S 200 'only 'only ifhe 'the authority supervise or control violation Labor Law§ if he or she had 'the authority to supervise control the the performance [internal quotations citations omitted]." Caban v. Canst. performance of of the work' work' [internal quotations and citations omitted]." Caban v. Plaza Plaza Const. 488, 490 [2d Dept. 2017]. other words, AD3d 488,490 2017]. In other words, Defendant Defendant HOA's HOA's liability liability for Corp., 153 AD3d Plaintiffs injuries arising from the manner Plaintiffs injuries arising manner in which which his work work was performed performed requires requires that that it had authority to exercise supervision or control control over over the injury-producing v. 400 authority exercise supervision injury-producing work. work. Kandatyan Kandatyan v. Fifth AD3d 848, 851 851 [2d Dept. 2017]. Fifth Realty, Realty, LLC, LLC, 155 I 55 AD3d 2017). support of of the instant instant motion, copy of of its Financial motion, Defendant Defendant HOA HOA provides provides a copy Financial In support Statement for the document indicates that the Statement the Year Year ended ended December December 31, 2014. That That document indicates that the Association consist of of 52 residential residential units located located on Erin Erin Court Court and and Halley Court Association will ultimately ultimately consist Halley Court in Poughkeepsie operation, maintenance Poughkeepsie and that that Defendant Defendant HOA is responsible responsible for the operation, maintenance and preservation of the common common property. of December 2014, preservation of property. The report report also indicates indicates that that as of December 31, 2014, 47 units had been completed completed and sold and that "OL "OL Properties Sponsor of Properties LLC" LLC" is the Sponsor of the Association. Defendant HOA Association. Nothing Nothing in the report report indicates indicates that that Defendant HOA was was responsible responsible for, or 4 [* 4] 4 of 10 INDEX NO. 2017-51118 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/23/2019 units. residential units. of the residential involved constructio n of involved in, the construction ~f four (4) construction offour the construction permits for the Defendant building permits of building copies of provides copies also provides HOA also Defendant HOA 53 premises, 53 the subject permit for the building permit the building of the subject premises, including the development, including the development, townhomes in the the townhomes of LLC" as Properties LLC" "OL Properties Halley That building I, 2013, 2013, identifies identifies "OL August 1, issued on August permit, issued building permit, Halley Ct. That contained description contained project description The project premises. The both contractor for the subject subject premises. owner3 and the contractor both the owne~ townhouse. single-family townhouse. therein Halley Ct. will be a new single-family that 53 Halley indicates that therein indicates currently the that he is currently testified that Coleman, testified Finally, Ronald Coleman, witness, Ronald HOA's witness, Defendant HOA's Finally, Defendant 2017. He since May position since held the position president May 2017. Board and has held HOA Board Defendant HOA of the Defendant president of Inwood Defendant Inwood of Defendant heard of never heard purchased that he had never testified that Properties and testified unit from OL Properties purchased his unit arrange for the HOA is to arrange Defendant HOA Lake. further testified of the Defendant responsibility of that the responsibility testified that Lake. He further also There is also pickup. There garbage pickup. upkeep of the property, snowplowing, and garbage landscaping and ng, landscaping including snowplowi property, including upkeep of Asset was Asset accident, it was time of a property of the accident, duties and, at the time these duties with these helps with that helps manager that property manager Inwood Defendant Inwood and Defendant HOA and Defendant HOA Properties. between Defendant contracts between of any contracts aware of not aware Properties. He was not Lake. Lake. entitled that it is entitled primafacia Through established prima facia that has established HOA has Defendant HOA submissions, Defendant these submissions, Through these 200 claims. Law 200 Labor Law negligence and Labor to summary common law negligence claims. Plaintiffs common judgment on Plaintiffs summary judgment for worked for who worked people who than people other than anyone other Plaintiff instruction from anyone took instruction never took that he never testified that Plaintiff testified evidence the evidence addition, the employer. In addition, his hired his employer. who hired of who aware of not aware that he was not employer and that his employer of the areas of common areas before only for the common responsible only HOA is responsible Defendant HOA that Defendant Court is that before this Court under townhome under single-family townhome of a single-family roof of development. occurred on the roof accident occurred Plaintiffs accident development. Plaintiffs responsible. HOA is responsible. Defendant HOA construction, area for which which Defendant common area not a common which is not construction, which As such, such, LLC. Lake LLC. Inwood Lake Defendant Inwood of Defendant answer of of the answer ]3 The The Court Court notes information appears appears to be contradictory contradictory of this information that this notes that issue. at premises the premises of the However, Defendant HOA is not the owner of uncontested that Defendant However, it remains uncontested 5 [* 5] 5 of 10 INDEX NO. 2017-51118 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/23/2019 over control over supervision or control exercise supervision evidence that authority to exercise HOA had authority Defendant HOA that Defendant there is no evidence held liable cannot be held HOA cannot the work Plaintiff was engaged Defendant HOA liable therefore, Defendant engaged and, therefore, which Plaintiff work in which supra. Kandatyan, supra. Law §200. Labor Law under 9200. Kandatyan, theory or Labor negligence theory common-law negligence under a common-law contractor general contractor was a general HOA was Defendant HOA There that Defendant record that the record evidence in the also no evidence There is also HOA submitted injured. Defendant with respect Defendant HOA submitted a Plaintiff was injured. which Plaintiff premises on which respect to the premises More Properties as the contractor. building identified OL Properties contractor. More that identified premises that permit for the premises building permit the business - it is an association importantly, association of of the construction business HOA is not in the construction Defendant HOA importantly, Defendant the of the homeowners of the town homes responsible of the common common areas areas of upkeep of responsible for the upkeep townhomes homeowners of that it is not a case that development. such, Defendant aprimajacie case demonstrated aprimafacie HOA has demonstrated Defendant HOA development. As such, Labor Law. of the Labor meaning of general within the meaning contractor within general contractor owner or the owner of the The record that Defendant HOA is an agent agent of Defendant HOA evidence that of evidence devoid of also devoid record is also (6). "' Law §240(1) general contractor S240(l) or §241 9241(6). "'AA party party is deemed deemed Labor Law of Labor meaning of within the meaning contractor within general supervisory when it has supervisory Law when Labor Law to be an agent owner or general under the Labor contractor under general contractor of an owner agent of omitted}." citation omitted)." plaintiff is injured' control and authority over the work injured' [[citation where a plaintiff being done where work being authority over control demonstrated above, Dept. 2018]. Giannas v. 3rd Ave. Corp., Corp., 166 AD3d 853, 856 [2d Dept. 2018]. As demonstrated above, AD3d 853,856 JOO 3rd v. 100 Giannas work control and authority there authority over over the work supervisory control HOA had supervisory Defendant HOA that Defendant evidence that there is no evidence of his time of working at the time being Plaintiff was working which Plaintiff townhome on which residential townhome done on the residential being done accident. accident. meaning of within the meaning Finally, contractor or agent agent within of general contractor HOA was a general Defendant HOA if Defendant even if Finally, even judgment entitlement to summary Labor Law, Defendant establishedprimajacie summary judgment facie entitlement HOA has establishedprima Defendant HOA the Labor cause of recover on a cause order to recover on Plaintiffs Law §241 S241(6) "In order of action action action. "In of action. cause of (6) cause Labor Law Plaintiffs Labor violation of establish the violation must establish plaintiff must alleging of an Law §S 241 (6), a plaintiff Labor Law of Labor violation of alleging a violation 6 [* 6] 6 of 10 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 INDEX NO. 2017-51118 RECEIVED NYSCEF: 01/23/2019 Bedford Handlovic v. Industrial specific safety safety standards." standards." Handlovic v. Bedford which sets forth specific provision which Code provision Industrial Code Defendant HOA, demonstrated by Defendant Park HOA, 2006]. As demonstrated AD3d 653, 654 [2d Dept. 2006]. Park Dev., Inc., 25 AD3d violation of reference to any contains a reference neither Complaint, nor his Bill of any violation of Particulars, contains of Particulars, Plaintiffs Complaint, neither Plaintiffs primafacie an Industrial such, Defendant Defendant HOA HOA established established its prima facie . entitlement entitlement. provision. As such, Code provision. Industrial Code well. ground as well. claim on this to dismissal Plaintiffs Labor Labor Law §241(6) 9241(6) claim this ground dismissal Plaintiffs there because there motion is premature HOA;s motion opposition, Plaintiff argues that Defendant premature because Defendant HOA's Plaintiff argues In opposition, with witness with produce a witness failed to produce outstanding discovery. discovery. Plaintiff HOA failed Defendant HOA that Defendant argues that Plaintiff argues is outstanding oversight control and oversight actual knowledge of the extent extent of Townhome's involvement, involvement, direction, direction, control of the Townhome's knowledge of actual Plaintiff was injured. of the construction time that that Plaintiff injured. community at the time within the community performed within being performed construction being of discovery deposition discovery Specifically, Plaintiff argues that that a 2014 member identified identified in post post deposition board member 2014 board Plaintiff argues Specifically, involvement in the HOA's involvement Defendant HOA's responses deposed to determine determine the nature of Defendant nature of needs to be deposed responses needs deny Defendant fact sufficient of fact issue of construction. this falls far short short of sufficient to deny Defendant raising an issue of raising However, this construction. However, motion. HOA's HOA's motion. pursue regarding his own Instead, Plaintiffs opposition questions regarding own failure failure to pursue raises questions opposition raises Instead, Plaintiffs I• I Plaintiffs employer, of Plaintiffs representative of depose a representative discovery. of attempts employer, attempts to depose mention of There is no mention discovery. There . , with the that Plaintiffs nor efforts made obtain copies of any contracts Plaintiffs employer employer had with contracts that copies of made to obtain nor efforts Inwood Defendant Inwood that Defendant understands that The Court contractor owner of subject premises. Court understands premises. The of the subject and/or owner contractor and/or However, Defendant. However, Lake's Plaintiffs ability ability to get discovery discovery from that that Defendant. hampered Plaintiff's default hampered Lake's default relevant documentatio obtain relevant made to obtain Plaintiff explain what other attempts documentationn or to were made attempts were what other Plaintiff fails to explain complains that Plaintiff complains Although Plaintiff Defendant. Although identifY that that Defendant. regarding that knowledge regarding with knowledge witnesses with identify witnesses regarding contracts or documents it is "inconceivabl "inconceivable"e" that that Defendant documents regarding possess any contracts does not possess HOA does Defendant HOA would support that would the construction work, work, Plaintiff evidence that support this assertion. assertion. present any evidence Plaintiff fails to present the construction 7 [* 7] 7 of 10 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 INDEX NO. 2017-51118 RECEIVED NYSCEF: 01/23/2019 of the construction involved in the There that Defendant Defendant HOA HOA was was involved construction of Court that this Court before this evidence before There is no evidence members identified The mere mere fact that that there there were were 2014 2014 board board members identified as premises at issue. The the premises HOA was "builder/representatives" demonstrates that that Defendant Defendant HOA was involved involved in the atives" in no way demonstrates "builder/represent required oversight of of the construction construction of of the premises which Plaintiff Plaintiff was injured injured to the the level level required premises on which oversight Labor Law. by the Labor minutes of with copies Notably, appears that was provided copies of of minutes of the the Defendant Defendant provided with Plaintiff was that Plaintiff Notably, it appears months after HOA Board three (3) months months prior three (3) months after the date date of of the accident. accident. prior to and three Board for three Affirmation. Presumably, See Response Response to Plaintiffs Plaintiffs Post Post EBT EBT Demands, Demands, Exhibit Smiley Affirmation. Presumably, if if Exhibit 3, Smiley the Board Board was involved involved in the the construction construction of of the premises necessary to be held held liable liable premises at the level necessary minutes. under the Labor Labor Law, Law, there there would would have have been some mention mention of of the construction construction in those those minutes. been some under made of mention is made that no mention inferred that As Plaintiff reference or attach attach said minutes, of minutes, it can be inferred Plaintiff fails to reference construction therein. therein. the construction that Defendant appears that that the crux crux of of Plaintiffs Plaintiffs argument argument is that Defendant HOA HOA is required required to It appears that is not However, that premises at issue. However, disprove involvement in the construction of the premises not the construction of disprove its involvement makes clear burden of proof required of of Defendant HOA. The Labor Law makes clear that that in order order for Labor Law Defendant HOA. burden ofproofrequired Defendant HOA HOA to be liable liable for Plaintiffs Plaintiffs injuries injuries as a general general contractor contractor or agent agent of of the the owner owner Defendant or general general contractor, contractor, said said defendant defendant must supervision of of Plaintiffs Plaintiffs involved in the supervision been involved have been must have that he only work. only evidence evidence in the record issue is Plaintiffs Plaintiffs own own testimony testimony that only record on this issue work. The only took direction direction from from individuals individuals who were employed by his employer. employer. It is beyond beyond cavil. cavil that that were employed 44 The cases ·.The contracting. Defendant HOA is not of construction construction or general general contracting cases on business of not in the business Defendant HOA Plaintiff does does not contest contest the stated stated nature nature of of Defendant Defendant HOA BOA as listed listed in its December December 31, 3 I, 2014 2014 financial financial In fact, Plaintiff the common of the preservation of statement - "The "The Association Association is responsible the operation, maintenance and and preservation common operation, maintenance for the responsible for statementwas responsible HOA was Defendant BOA property." Nothing in this this description, description, nor stated financials, financials, indicates indicates that that Defendant responsible nor in the stated property." Nothing construction. their overseeing for responsible for the construction of of the individual units, was in any way responsible overseeing their construction. way any was or units, individual the of any of for the construction 8 4 [* 8] 8 of 10 INDEX NO. 2017-51118 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 01/23/2019 which opposition are insufficient of fact. Plaintiff cites which Plaintiff Plaintiff relies relies in opposition insufficient to raises raises triable triable issues issues of Plaintiff cites to these definition of "contractor" or "cons"truction "construction manager" within the meaning these cases cases for their their definition of a "contractor" manager" within meaning of the Labor Labor Law argues that issues of offact whether Defendant general of Law and argues that issues fact exist exist as to whether Defendant HOA HOA is the general contractor and/or managing agent. However, However, in order there must contractor and/or managing agent. order for there there to be be issues issues of of fact, there must be some evidence evidence to show show that that Defendant agent. Defendant HOA HOA did in fact act as a general general contractor contractor or agent. As demonstrated demonstrated above, above, the record devoid of of such such evidence Plaintiff does not offer offer any record is devoid evidence and Plaintiff support this this argument. argument. 55 Having admissible evidence evidence which facts to support Having provided provided no admissible which raises raises an issue of fact, Defendant Defendant HOA HOA is entitled entitled to summary summary judgment of Plaintiffs action. of judgment on all of Plaintiffs causes causes of of action. Court has considered considered the additional additional contentions contentions of of the parties specifically The Court parties not not specifically addressed herein finds them either party party addressed herein and finds them unavailing. unavailing. To the extent extent any relief relief requested requested by either was not addressed hereby denied. denied. Accordingly, Accordingly, it is hereby hereby addressed by the Court, Court, it is hereby ORDERED Defendant HOA's ORDERED that that Defendant HOA's motion motion for summary summary judgment judgment is GRANTED GRANTED in its entirety and the Complaint Complaint and all cross cross claims claims asserted asserted against against it are dismissed; dismissed; and it is further further entirety ORDERED that that an inquest inquest on Plaintiffs Plaintiffs ciaim against Defendant Inwood Lake ORDERED claim against Defendant Inwood Lake is scheduled for scheduled &-Iy, *"7 Ol~ ~, 'il', 2019at '&..¼~ •7 2019. at 4' .;l ~ 0 0'"-o a-:m./p.m.' &.ffl.!p.m. · The foregoing constitutes Order of of the Court. Court. The foregoing constitutes the Decision Decision and Order Dated: Dated: Poughkeepsie, Poughkeepsie, 1'{ewYork New York January 1''1 :.~. 201'£\ January 23, 20 HON. CHRIWJ. ACKER, J.S.C. 5, As cited "entity is a contractor contractor within within the meaning meaning of of Labor g240 (I) (I) and §241 g24l (6) if had the cited by Plaintiff, Plaintiff, an "entity Labor Law §240 if it had power safety standards standards and choose subcontractors." Mulcaire Structural Steel Steel power to enforce enforce safety choose responsible responsible subcontractors." Mulcaire v. Buffalo Structural Corp., 45 AD3d 1426, 1428 [2d Dept. Dept. 2007]. offers no evidence that that would would allow this Court Court to Const. Corp., AD3d 1426, 2007]. Plaintiff Plaintiff offers no evidence allow this conclude that HOA had any power safety standards standards or choose responsible subcontractors for conclude that Defendant Defendant HOA power to enforce enforce safety or choose responsible subcontractors the subject subject premises. premises. 9 [* 9] 9 of 10 FILED: DUTCHESS COUNTY CLERK 01/24/2019 11:24 AM NYSCEF DOC. NO. 91 To: RECEIVED NYSCEF: 01/23/2019 All parties ECF parties via via ECF Inwood Lake, Lake, LLC Inwood LLC Sunrise Highway Highway 600 Sunrise Patchogue, New Patchogue, New York York 11772 10 [* 10] INDEX NO. 2017-51118 10 of 10

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