Hamblin v Corcoran
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Hamblin v Corcoran 2021 NY Slip Op 33255(U) May 20, 2021 Supreme Court, Suffolk County Docket Number: Index No. 616201/2018 Judge: Joseph A. Santorelli 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. INDEX NO. 616201/2018 FILED: SUFFOLK COUNTY CLERK 05/20/2021 04:40 PM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/24/2021 INDEX No. INDEX No. CAL CAL No. 616201/2018 616201/2018 \. . SUPREME COURT COURT - STATE STATE OF NEW NEW YORK YORK SUPREME I.A.S. PART 10 - SUFFOLK LA.S. PART SUFFOLK COUNTY, COUNTY ( PRESENT: PRESENT: Han. ----"·,JOSEPH Hon. J--==O=S=E=-P=H'A. """A-"'SANTORELLI .:...::S=A=N--'-T""'O"'"'RE=L=L=I'---_ Justice of the Supreme Court MOTION DA DATE 11/4/2020 MOTION TE 11/4/2020 SUBMIT DATE 4/22/2021 SUBMIT DATE 4/22/2021 Mot. Seq.# Mot. Seq. # 01 - MG MG -------~-----------~-~-~----------------------------------------X ----------------------------------------------------------------X AL YSSA NICOLE HAMBLIN, Administratrix ALYSSA NICOLE HAMBLIN, Administratrix of the Estate Estate of of STEPHEN STEPHEN HAMBLIN, of HAMBLIN, DECEASED, DECEASED, Plaintiff, Plaintiff, LITK & RUSSELL, RUSSELL,PLLC LITE PLLC Atlys, A ttys. for for Plaintiff Plaintiff 212 HIGBIE LN 212 HIGBIE WEST ISLIP, ISLIP, NY 11795 NY 11795 WEST MARTYN, MARTYN, MARTYN, SMITH SMITH & MURRAY MARTYN, MURRAY Attys, CORCORAN Attys. for for DefendantsDefendants- CORCORAN STE 230 230 102 MOTOR MOTOR PKWY, PKWY, STE HAUPPAUGE, 11788 HAUPPAUGE, NY NY 11788 ~against-againstKEVIN CORCORAN, CORCORAN, SR., PATRICIA PATRICIA KEVIN CORCORAN and ANTHONY PALERMO, ANTHONY PALERMO, CORCORAN Defendants. Defendants. LAW OFFICES OF JAMES BUTLER LAW OFFICES OF JAMES BUTLER & ASSOCIATES ASSOCIATES Attys. A ttys. for for DefendantDefendant- PALERMO PALERMO PO 9040 PO BOX BOX 9040 JERICHO QUADRANGLE, QUADRANGLE, STE STE 260 260 300 JERICHO JERICHO, NY 11753 JERICHO, NY 11753 ----------------------------------------------------------------X ----------------------------------------------------------------X Upon the following papers numbered numbered 1 to 40 read summary judgment; of Motion/ Motion/ Upon following papers read on this motion motion for summary judgment ; Notice Notice of st1ppo1"ting I'al'el papetss__ _ _ , Answering Order to Show Order Show Cause Cause and and supporting supporting papers.1..:.1.§_;'Notiee papers. 1- 26 ;'"!'iotiee ofCrnss of 81oss Motion Motion and stlJ'l'orting Answering Affidavits and supporting supporting papers papers 27 - 33 ; Replying Replying Affidavits Affidavits and supporting supporting papers papers 34 - 40 (al.d afl:e1 aftel 40 ; Othel Othe1 _, _ , (and Affidavits heating eottnsel and opposed motion) it is, healing eotlnsel in snppo1"t Sttl'POl'tand opposed to the \notion) Defendant Anthony Anthony Palermo order dismissing complaint and and all crosscrossDefendant Palermo moves moves for an order dismissing the complaint claims against against him. The The plaintiff plaintiff opposes opposes this application. application. The co-defendants not file claims co-defendants did not opposition to this this application. application. opposition This is an action action to recover recover damages damages for personal allegedly sustained sustained by the This personal injuries injuries allegedly plaintiff, Stephen Stephen Hamblin, Hamblin, on November 2017, as a result result of of an accident accident which occurred plaintiff, November 5, 2017, which occurred while he was attempting attempting to install install a wood wood burning stove in the den of of the single single family while burning stove family home home owned by defendants, Kevin Corcoran Sr. and Patricia Corcoran, located at 7 Yaphank Avenue, owned defendants, Kevin Corcoran Patricia Corcoran, located Y aphank A venue, 'Mastic, New all~ged that time of of the accident, New York. It is all~ged that at the time accident, he was was present present on the roof, ·Mastic, attempting to install install a piece of the chimney pipe-through roof, when "whiplashed" the chimney pipe through the roof, when the the pipe pipe "whiplashed" attempting piece of him by pulling pulling him him forward forward and jerking him backward. backward. Defendant, Palermo, who who is the jerking him Defendant, Anthony Anthony Palermo, him son-in-law of of the defendant defendant owners, owners, was inside the house, house, in the den den at the time, time, assisting assisting the son-in-law was inside plaintiff. It is undisputed undisputed that that while while assisting plaintiff, defendant defendant Palermo's Palermo's foot slipped after after assisting the plaintiff, foot slipped plaintiff. taking a step higher higher on the ladder ladder and the pipe pipe fell toward second attempt toward him. A second attempt was was made made at taking [* 1] 1 of 5 FILED: SUFFOLK COUNTY CLERK 05/20/2021 04:40 PM NYSCEF DOC. NO. 39 INDEX NO. 616201/2018 RECEIVED NYSCEF: 05/24/2021 Hamblin v Corcoran, Corcoran, et al. Hamblin Index # 616201/2018 616201/2018 Index# Page 2 which time the plaintiff plaintiff was able to successfully successfully install chimney pipe pipe in the Defendant which install the chimney the roof. Defendant Palermo does does not reside reside at the home time was Palermo home but but at the time was visiting visiting the premises premises with with his wife and child. asserts causes causes of of action action against against the moving defendant for common moving defendant common law The plaintiff plaintiff asserts negligence, as well as under under Labor SS 200,240 200, 240 and 241(b). 241(b). The defendant defendant claims claims that that "the "the negligence, Labor Law Law§§ undisputed evidence evidence on the record record establishes establishes that: (a) defendant, defendant, Anthony own, undisputed Anthony Palermo, Palermo, did not own, control, manage manage or occupy occupy the premises premises upon upon which which the accident accident took took place; accident control, place; (b) the accident occurred due to plaintiffs own negligence; negligence; and (c) the moving defendant did not supervise, occurred plaintiff's own moving defendant not supervise, direct or control control the work work being plaintiff for the direct being performed performed by the plaintiff, plaintiff, nor nor did he pay the plaintiff work." In opposition, opposition, the plaintiff argues that that "while "while it is true that that Defendant not Defendant Palermo Palermo may not work." plaintiff argues under the Labor Laws, and that homeowner, he nonetheless nonetheless is liable liable for be liable under Labor Laws, that he was not the homeowner, injuries caused caused when when he volunteered volunteered to assist assist Plaintiff, negligent the injuries Plaintiff, and then then did so in a negligent fashion." fashion." deposition, Stephen Stephen Hamblin 2017, at approximately approximately At his deposition, Hamblin testified testified that that on November November 5, 2017, involved in the accident accident at the premises owned by Kevin Corcoran Sr. and 6:00 pm, he was involved premises owned Kevin Corcoran Patricia Corcoran Corcoran located located at 7 Yaphank testified that that he met Patricia Yaphank Road, Road, Mastic Mastic Beach, Beach, NY. He further further testified Kevin Corcoran Corcoran through through his friend, who is the Corcorans' Corcorans' son-in-law. son-in-law. He was Kevin friend, Anthony Anthony Palermo, Palermo, who hired by the Corcorans Corcorans to install install a wood burning stove room and to connect connect a vent hired wood burning stove in the living living room vent chimney. Hamblin Hamblin indicated indicated that that Kevin Corcoran Sr. supplied supplied everything everything for the job, line chimney. Kevin Corcoran job, including the stove stove and ladder ladder he used access the roof. He also stated stated that Corcoran Sr. including used to access that he and Corcoran Home Depot additional supplies supplies for the installation installation and Corcoran Sr. paid had to go to Home Depot to get additional and that that Corcoran supplies. On the date of of the accident, accident, Hamblin Corcoran Sr. picked picked him Hamblin testified testified that that Corcoran for all the supplies. Corcoran Sr.'s Sr.'s mother's mother's house house to do some some work work there drove him there and then then drove him to up, drove him to Corcoran Corcoran Sr.'s Sr.' s house house where where he began began to do the work. work. He stated stated that worked alone alone for a few Corcoran that he worked hours before involved in the accident. accident. At the time ofthe accident, Hamblin the accident, Hamblin was was on the hours before he was was involved time of roof by himself, himself, Corcoran Corcoran Sr. was extension ladder onto the roof roof was on an extension ladder looking looking onto roof and Palermo Palermo was inside the house. house. Hamblin claims that he was kneeling kneeling on the roof roof attempting attempting to "balance "balance the inside Hamblin claims pipe, screw screw it into the flashing flashing that through to get through roof' when when palermo saw he through the roof' Palermo saw that is goes through struggling a bit and "yelled "yelled up and said he would me". He was struggling would grab the pipe pipe to hold hold it for me". testified that that Palermo Palermo "said "said he had it and I went didn't let go reach for the drill and and he let go ... I didn't testified went to reach continued to hold hold onto onto it and it pulled snapped my chest chest and my and I continued pulled me and jerked jerked me so fast it snapped back one straight straight whip." whip." The plaintiff plaintiff indicated indicated that that Palermo Palermo was standing on the was like one was standing back ... it was ladder in the living living room, provided by the plaintiff, inside the house. house. When When plaintiff, and fell inside ladder room, which which was provided questioned about about how how he knew knew Palermo stated that that questioned Palermo fell, he stated I heard didn't let go of of the pipe. I was yelling yelling down down to him, him, grab heard him. I didn't the pipe, grab the pipe, cause I was in so much pain holding it through pipe, grab pipe, cause much pain holding through hand and you could could actually actually see my head through the ceiling ceiling my left hand head through saw the ladder ladder was down down and he got up and grabbed grabbed the pipe. and I saw pipe. Took it out out of of my hands. hands. Took [* 2] 2 of 5 INDEX NO. 616201/2018 FILED: SUFFOLK COUNTY CLERK 05/20/2021 04:40 PM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/24/2021 Hamblin v Corcoran, Corcoran, et al. Hamblin Index # 616201/2018 616201/2018 Index# Page 3 Hamblin testified testified that that Palermo Palermo did not give him any instructions instructions on how stove and Hamblin how to install install the stove after finishing finishing the job family for dinner. dinner. job he joined joined the family that after Palermo testified testified that own the premises accident occurred occurred and was Palermo that he did not own premises where where this this accident there visiting visiting his in-laws in-laws with daughter. He indicated indicated that that he had had known there with his wife wife and daughter. known the plaintiff approximately five years years and they had previously worked at construction construction sites plaintiff for approximately previously worked together. He is an electrician of the accident had installed installed two new light together. electrician and on the date of accident had two new light fixtures fixtures Corcorans' garage. garage. Palermo Palermo testified that at the time of the accident accident he was was in the living living in the Corcorans' testified that time of room and the plaintiff plaintiff asked asked if anyone could could hand him a piece of the chimney chimney pipe. pipe. He indicated indicated room if anyone hand him piece of house was able to hand pipe, so he grabbed grabbed it, walked walked up the that no one else in the house hand him him the pipe, ladder but his right right foot slipped slipped and then then he and the pipe ladder pipe fell. Kevin Corcoran Corcoran Sr. and PatriCia Corcoran testified testified that they were owners of of the Kevin Patricia Corcoran that they were the owners premises on the date of of the accident. accident. Corcoran Corcoran Sr. indicated spoke to the plaintiff premises indicated that that he spoke plaintiff a day or accident about about having stove in his living living room. two before before the accident having him install install a wood wood burning burning stove Corcoran Sr. testified testified that that the plaintiff used an extension extension ladder was in his yard Corcoran plaintiff used ladder that that was yard to gain access to the roof. access A party party moving moving for summary summary judgment showing of of entitlement entitlement judgment must must make make a prima prima facie showing matter of of law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the absence of any absence of to judgment judgment as a matter material issues issues of of fact (Nomura (Nomura Asset Capital Corp. v Cadwalader, Cadwalader, Wickersham Wickersham & Taft Taft LLP, material Asset Capital LLP, NYS3d 488 [2015]; Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d NY2d 320, NYS2d 923 26 NY3d NY3d 40, 19 NYS3d [2015]; Alvarez 320, 508 NYS2d moving party party produces requisite evidence, evidence, the burden shifts to the [[1986]). 1986]). If the moving produces the requisite burden then then shifts nonmoving party establish the existence of material material issues issues of of fact which of the which require require a trial of nonmoving party to establish existence of action (Nomura, (Nomura, supra; Constr. Corp., 18 NY3d 499, 942 NYS2d action supra; see also Vega v Restani Restani Cons tr. Corp., NY3d 499, NYS2d 13 Mere conclusions conclusions or unsubstantiated unsubstantiated allegations allegations are insufficient raise a triable [2012]). Mere insufficient to raise triable issue (Daliendo v Johnson, 1477 AD2d AD2d 312, 543 NYS2d 1989]). In deciding deciding the motion, (Daliendo Johnson, 14 NYS2d 987 [2d Dept Dept 1989]). motion, Court must must view view all evidence evidence in the light light most favorable to the nonmoving (Nomura, the Court most favorable nonmoving party party (Nomura, supra; see also Ortiz Ortiz v Varsity Varsity Holdings, 339, 937 NYS2d [2011]). Holdings, LLC, LLC, 18 NY3d NY3d 335, 335,339,937 NYS2d 157 [2011]). failure to make make such prima facie showing showing requires denial of of the motion motion regardless regardless of of The failure such a prima requires the denial sufficiency of opposing papers papers (see Winegrad Winegrad v New York Univ. Med. the sufficiency of the opposing New York Med. Ctr., 64 NY2d NY2d [1985]). 851, 487 NYS2d NYS2d 316 [1985]). Court in Perri Gilbert Johnson 681, 683 [2nd Dept 2005], The Court Perri v Gilbert Johnson Enters., Enters., Ltd., Ltd., 14 AD3d AD3d 681,683 Dept 2005], held that [* 3] establish liability liability for common-law common-law negligence negligence or To establish Law§S 200, the plaintiff violation violation of of Labor Labor Law plaintiff must must establish establish that defendant in issue "authority to control control the that the defendant issue had "authority activity bringing about the injury enable it to avoid avoid or activity bringing about injury to enable Son, 54 correct Picciano & Son, correct an unsafe unsafe condition" condition" (Russin (Russin v Picciano N.Y.2d 311, 317, 429 N.E.2d 805,445 N.Y.S.2d N.Y.2d 311,317,429 N.E.2d 805,445 N.Y.S.2d 127 3 ofContr. 5 Co., 91 N.Y.2d N. Y.2d 343, [1981 Rizzuto v Wenger [1981];]; see Rizzuto Wenger Contr. 343, INDEX NO. 616201/2018 FILED: SUFFOLK COUNTY CLERK 05/20/2021 04:40 PM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/24/2021 Hamblin Hamblin v Corcoran Corcoran,, et al. Index# Index # 616201/2 616201/2018 018 Page4 Page 4 352,693 670 N.Y.S.2d N.Y.S.2d 816 [1998]; 352,693 N.E.2d N.E.2d 1068, 1068,670 [1998]; Singleton Singleton v Citnalta Citnalta Constr. Constr. Corp., Corp., 291 A.D.2d A.D.2d 393, 393,394, 394, 737 N.Y.S.2d N.Y.S.2d 630 [2002]). [2002]). In law negligenc In order order to find liability liability for commoncommon-law negligencee or under under Labor Labor Law Law 200 200 the the owner owner of the premises must have "supervis ory control of the premises must have "supervisory control over over the injury-pro injury-producing activity". (Balbuen (Balbuenaa vv ducing activity". NY Stock Exch., Inc., Inc., 49 AD3d 376 [1st Dept Dept 2008]. NY Stock Exch., AD3d 374, 374,376 2008]. In Perri v Gilbert Johnson Perri Gilbert Johnson Enters., Enters., Ltd., supra, the evidence ed that Ltd., supra, evidence "establish "established that Gilbert Gilbert visited visited the site site' ' [[s]ometimes once or or twice twice aa s]ometimes once week, sometime two weeks' weeks' to talk to customer week, sometimess once once every every two customerss and review of the review the progress progress of the work ... There is no evidence that the owner work ... There evidence in the record record that supervisedd the manner which the owner supervise manner in in which the work performed" and therefore judgment was granted work was was performed" therefore summary summary judgment granted dismissin dismissingg the common-law common-law negligence and Labor negligence Labor Law Law 200 violations. violations. Labor on of Labor Law Law § 9 200 is a codificati codification of the commoncommon-law duty imposed law duty imposed upon upon an owner, owner, contracto provide construct contractor,r, or their their agent, agent, to provide construction to work (see ion site workers workers with with a safe place place to work (see Comes v New York State Elec. & Gas Corp., Comes v New York State Elec. & Corp., 82 NY2d 876, 609 NYS2d NYS2d 168 [1993]; [1993]; Haider NY2d 876,609 Haider vv Davis, 35 Davis, 35 AD3d AD3d 363, 827 NYS2d NYS2d 179 [2d Dept Dept 2006]). 2006]). "Cases "Cases involving Labor Law Law § 9 200 involving Labor 200 fall fall into two broad categorie s: namely, those where workers into two broad categories: namely, those where injured as a result result of of dangerou dangerouss or or workers are injured defective premises defective premises condition conditionss at a work work site, and those those involving involving the manner manner in which the work work is is which the performe d" (Messina v City of New York, 46 performed" (Messina of New York, NYS3d 174, 174,2017 NY Slip Op 00640 00640 [2017], [2017], NYS3d 2017 NY quoting Puccia, 57 AD3d AD3d 54, 61, 866 NYS2d quoting Ortega Ortega v Puccia, Dept 2008]). 2008]). When When the the methods methods NYS2d 323 [2d Dept or materials of recovery against or materials of the work work are at issue, issue, recovery against the owner owner or general general contracto contractorr cannot cannot be be had charged "had had unless unless it is shown shown that that the party party to be charged "had the authority supervise or control the authority to supervise control the performance of work" (id.). performance of the work" (id.). General General superviso supervisory authority at a work work site is not not enough; enough; ry authority rather, a defendan t must have had the responsibility responsibility for the manner rather, a defendant must have which the plaintiff's manner in which plaintiffs work work is performe Messina v City of performedd (see Messina of New supra). New York, supra). Labor Law§§ Labor Law 99 240 and 241 apply apply to "[a]ll "[a]ll contracto contractorsrs and owners owners and their their agents, agents, except except owners of one and two-fami contract for but do not direct owners of one two-familyly dwellings dwellings who contract direct or control control the the work, work, when ing or demolish ing buildings buildings or doing when construct constructing demolishing doing any excavatin excavatingg in connectio connectionn therewith therewith."." To To establish establish entitleme entitlementnt to the protectio protectionn of of the homeovm homeowner's exemption,n, a defendan defendant t must er's exemptio must demonstr ate that house was a singledemonstrate that his house single- or two-fami two-family that he did not "direct ly residence residence and that not "direct or or control" the work being performe d Puccia, supra control" the work being performed (Ortega (Ortega v Puccia, "The statutory statutory phrase phrase 'direct 'direct supra at 58). "The or or control' control' is construed construed strictly strictly and refers refers to situations situations where owner supervise supervisess the where the owner the method method and manner manner of of the work" work" (id. at 59). The possessor of property also has a duty to maintain The owner owner or possessor of real property in aa maintain the property property in reasonabl reasonablyy safe condition condition so as to prevent prevent the occurrenc occurrencee of foreseeablele injuries injuries (see (see Na/Ian Nallan vv of foreseeab Helmsley-Spear, Inc., Inc., 50 NY2d NY2d 507,429 Helmsley-Spear, 507, 429 NYS2d [1980]; Milewski Washington NYS2d 606 [1980]; Milewski vv Washing ton Mut., Mut., Inc., 88 AD3d Inc., 88 AD3d 853,931 853, 931 NYS2d NYS2d 336 [2d Dept Dept 2011]). 2011]). Thus, Thus, "[w]here "[w]here a premises condition is is at at premises condition issue, held liable liable for a violation issue, property property owners owners may be held Labor Law S 200 if the owner either violation of of Labor Law§ 200 if owner either created created the the dangerou dangerouss condition condition that caused caused the accident accident or had actual actual or construct constructive notice of of ive notice the that caused the dangerou dangerouss condition condition that caused the accident" accident" ((Ortega at 61; see Pacheco Ortega v Puccia, Puccia, supra supra see Pacheco vv [* 4] 4 of 5 INDEX NO. 616201/2018 FILED: SUFFOLK COUNTY CLERK 05/20/2021 04:40 PM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/24/2021 H~blin Hamblin v Corcoran, Corcoran, et al. Index Index # 616201/2018 616201/2018 Page 5 Smith, Smith, 128 AD3d AD3d 926, 926,99 NYS3d NYS3d 377 [2d Dept Dept 2015]; 2015]; Chowdhury Chowdhury v Rodriguez, Rodriguez, 57 AD3d AD3d 121, Dept.2008]). 867 NYS2d NYS2d 123 [2d Dept.2008]). Defendant Defendant Palermo Palermo has established established prima prima facie entitlement entitlement to summary summary judgment judgment in that he was not the owner, owner, agent agent or possessor possessor of of the property property at issue issue and he did not not control control the manner manner in which which the plaintiffs plaintiff s work work was performed performed or supervise supervise the plaintiff plaintiff during during the installation installation of of the woodburning woodbuming stove. stove. Here, it is undisputed undisputed that that the subject subject premises premises is a single single family dwelling dwelling owned owned by the Corcoran Corcoran defendants. defendants. Further, Further, there there is nothing nothing in the record record to indicate indicate that that defendant defendant Palermo Palermo "directed "directed or controlled" controlled" the work work being being performed performed by the plaintiff. Having plaintiff. Having established established prima entitlement to summary summary judgment, shifted to prima facie entitlement judgment, the burden burden shifted the nonmoving nonmoving party raise a triable triable issue. party to raise Plaintiff Plaintiff opposes opposes defendant's defendant's motion, motion, but fails to raise raise a triable triable issue. issue. In opposition opposition to the motion, motion, plaintiff plaintiff argues argues that that "[w]hile "[w]hile it is true that Defendant Defendant Palermo Palermo may may not not be liable liable under under the Labor Labor Laws, Laws, and that that he was was not not the homeowner, homeowner, he nonetheless nonetheless is liable liable for the injuries injuries caused caused when when he volunteered volunteered to assist assist Plaintiff, Plaintiff, and then then did so in a negligent negligent fashion." fashion." This This argument argument is unavailing. unavailing. The The plaintiff plaintiff testified testified that defendant defendant Palermo Palermo fell off off the ladder ladder while while attempting attempting to help help him him hold hold the chimney chimney pipe and did not indicate indicate that Palermo's Palermo's falling falling was anything anything other other than than an accident. accident. Accordingly, Accordingly, the motion motion for summary summary judgment dismissing the judgment dismissing complaint complaint and any cross-claims cross-claims is granted granted as to defendant defendant Anthony Anthony Palermo. Palermo. The foregoing foregoing constitutes constitutes the decision decision and Order Order oft of t ·. Dated: May 20, 2021 A. SANTORELLI SANTORELLI l.S.C. J.S.C. FINAL DISPOSITION DISPOSITION FINAL [* 5] X 5 of 5 NON-FINAL NON-FINAL DISPOSITION DISPOSITION
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