Fahey v Worship House & Outreach Ministries, Inc.

[*1] Fahey v Worship House & Outreach Ministries, Inc. 2022 NY Slip Op 50829(U) Decided on August 23, 2022 Supreme Court, Kings County Mallafre Melendez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 23, 2022
Supreme Court, Kings County

Edward J. Fahey, Plaintiff,

against

The Worship House & Outreach Ministries, Inc., Martin Joseph, City of New York Department of Housing Preservation and Development, New York City Department of Buildings, City of New York, Liberty Temple Church of God in Christ, Inc., Tymel Thompson, individually and d/b/a Liberty Temple Church of God in Christ, Inc., Harrison Hale, Individually and d/b/a Liberty Temple Church of God in Christ, Inc., and Willie Gilmore, Individually and d/b/a Liberty Temple Church of God in Christ, Inc., Defendants.



The City of New York, Third-Party Plaintiff,

against

Shoe Box City, Inc., d/b/a Ivory Solutions, Third-Party Defendants.



Index No. 505373/2018

Attorney for Plaintiff:
Ronald W. Gill, Esq., Fortunato & Fortunato, PLLC, 26 Court Street, Suite 1302, Brooklyn, New York 11242

Attorneys for Defendants:
Andrey Strutinskiy, Esq., New York City Law Dept., 100 Church Street, New York, New York 10007

Dov Medinets, Esq., Guttman Weiss, PC, 2276 Sixty-Fifth St., 2nd Floor, Brooklyn, New York 11204 Eric Howard, Esq., The Howard Law Firm, P.C., 244 5th Avenue, Suite C-137, New York, New York 10001

John C. DiGiovanna, Esq., John. C. DiGiovanna, P.O. Box 639, St. James, New York 11780
Consuelo Mallafre Melendez, J.

Recitation, as required by CPLR § 2219 [a], of the papers considered in the review:

NYSCEF #s:

Seq. #5: 92-103; 140-150; 153-161
Seq. #6: 116-130; 163; 164
Seq. #7: 131- 137; 152; 162; 165; 166-168; 169; 170-176
Seq. #8: 139-150; 153-161; 177

Plaintiff moves for summary judgment (Sequence # 5) against The City of New York, City of New York Department of Preservation and Development and New York City Department of Buildings City (City defendants) based upon Labor Law sections 200 and 241(6). The City defendants cross move (Sequence #8) for an order granting summary judgment in their favor dismissing plaintiff's complaint and submit opposition to plaintiff's motion for summary judgment. Plaintiff moves (Sequence #6) to dismiss the Third-Party complaint and/or to sever it from the main action. Third party defendant Shoe Box, Inc. d/b/a Ivory Solutions moves (Sequence #7) to dismiss the Third-Party complaint.

Sequence 5 and 8 Motions for Summary Judgment

This is an action for personal injuries wherein Plaintiff claims that on or about May 9, 2017 he was injured while using a power saw during a demolition project at premises owned by defendant The Worship House & Outreach Ministries, Inc (Worship). At some point after Plaintiff's accident, Worship transferred ownership of the premises to a third party. Plaintiff was employed by Third Party defendant Shoe Box, the company performing the demolition. By notice dated August 29, 2016, the City defendants issued an Emergency Declaration stating that the subject property required complete demolition as the building was structurally compromised and risked further collapse. By letter dated August 30, 2016, the New York City Department of Buildings gave notice to the property owner, Worship, that Housing Preservation and Development (HPD) would engage a contractor to cure the emergency condition at the premises by demolishing the building unless they obtained a demolition company themselves. The City further notified that the cost of curing the condition would be billed to the owner. These notices were re-issued on or about September 16, 2016. Thereafter, the City solicited bids from vendors and based on the lowest bid price, engaged Shoe Box on behalf of the property owner to perform the demolition. By email dated July 20, 2017, notice was given to the City defendants that the demolition work would be paid to Shoe Box by an entity purporting to be the new owner of the premises. Documentation of payment by the "new owner" and receipt of such payment was acknowledged by Shoe Box on July 13, 2017. (Seq.#5, Exhibit 14).

Plaintiff seeks summary judgment as to his Labor Law 241(6) and 200 claims. With regards to Labor Law 241(6) claims, plaintiff's Bill of Particulars asserts a violation of Industrial Code (12 NYCRR) § 23-1.12(c)(1), which states: "Every portable, power-driven, hand-operated [*2]saw which is not provided with a saw table, except chain saws and circular brush saws, shall be equipped with a fixed guard above the base plate which will completely protect the operator from contact with the saw blade when the saw is operating and with a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut." Id. Plaintiff also claims a violation of Industrial Code (12 NYCRR) § 23- 1.5(c)(3), which states: "All safety devices, safeguards and equipment in use shall be kept sound and operable and shall be immediately repaired or restored or immediately removed from the job site if damaged." Id.

In this motion, Plaintiff claims that the City is liable under the aforementioned Labor Law sections, arguing that the City was the owner of the subject property or was an agent of the owner. He claims that the City acquired ownership of the property through condemnation and, as owner, contracted for the demolition work on the premises. Plaintiff's arguments are set forth fully in his papers and memoranda of law. Plaintiff also submits various exhibits and affidavit of an expert which are filed on NYSCEF, in support of his motion and in opposition to the City's cross motion.

The City defendants cross move for summary judgment dismissing Plaintiff's complaint arguing that the City is not an owner, contractor or agent -which is necessary to give rise to liability under the claimed Labor Law sections. They also claim that the City defendants acted in its governmental capacity and performed a governmental function, thereby claiming the protections of governmental immunity. They also argue that plaintiff did not plead a special duty in this action and had he done so, Plaintiff is unable to prove it.

Among the exhibits submitted are deposition transcripts of Plaintiff and of a witness for the City defendants. In his deposition, Plaintiff testified that he was employed by Third-Party Defendant Shoe Box. (Seq. #5 Exhibit 4, p.31:6). His boss was Joe Najar, the owner of Shoe Box ((Seq. #5 Exhibit 4, p.29:19-20 and p.30:3-6). All the workers at the construction site were employees of Shoe Box (Seq. #5 Exhibit 4, p.31:3-4). There were no other contractors or subcontractors on the job site (Seq. #5 Exhibit 4, p.30:20-22). Joe Najar handed Plaintiff the Stihl demo saw that is claimed to have caused Plaintiff's injury (Seq. #5 Exhibit 4, p.31:6-9). Plaintiff testified that Joe Najar handed him the saw while it was running (Seq. #5 Exhibit 4, p.36:14-18). In addition to four other workers, a City inspector was present at the job site (Seq. #5 Exhibit 4, p.44:24-25 and p. 45:1-2). Plaintiff had worked only one day prior to his accident (Seq. #5 Exhibit 4, p.106: 2-5).

The City produced Joshua Cucchiaro, Assistant Commissioner of Operations and Support Services for deposition. His duties included overseeing the demolition unit for HPD. Mr. Cucchiaro testified that the city inspector at this job site was HPD employee, George Larkins (Seq. #8 Exhibit G, p.18:21-25). Inspector Larkins was not required to be on the job site on a daily basis (Seq. #8 Exhibit G, p.42: 2-4). Inspectors are given routes daily. Supervisors assign inspectors to work sites based upon the "volume of work" (Seq. #8 Exhibit G, p.42: 4-9). Inspector Larkins monitored the progress of the demolition project and kept "running reports" (Seq. #8 Exhibit G, p.42:10-17). The inspectors have the ability to stop work if they observed an unsafe working condition; generally, they would confer with the HBD supervisors if there's an issue, and together they would stop work if a condition required it (Seq. #8 Exhibit G, p.18-25). That could include either unsafe working condition for a worker or an unsafe condition with respect to the project (Seq. #8 Exhibit G, p.42:25 and 43:2-5). Inspector Larkin did not participate in any of the demolition activities at the job site (Seq. #8 Exhibit G, p.67:6-16). He [*3]also was not required to inspect equipment used at the demolition site (Exhibit G, p. 69, 19-23). The City did not take ownership of the property at any time during the demolition (Seq. #8 Exhibit G, p.68:14-18). The demolition was paid for by the property owner (Seq. #8 Exhibit G, p.68: 23-25). Pursuant to Dept of Buildings Code, demolition inspectors are not required to be on the job site (Seq. #8 Exhibit G, p.69: 10-18). Inspectors do not inspect the equipment used during demolition (Seq. #8 Exhibit G, p.69: 19-23).

NY Labor Law § 241(6) imposes a non-delegable duty upon owners, general contractors, and their agents, to ensure worksite compliance with the New York Industrial Code. See, Morris v. Pavarini Constr., 22 NY3d 668, 673 (2014); Rizzuto v. L.A. Wenger Constr. Co., 91 NY2d 343, 348 (1998). In the recently decided case, Kavouras v Steel-More Contr. Corp., the Second Department reiterated that:

"Labor Law § 241(6) places on owners, contractors, and their agents a nondelegable duty to keep areas in which construction work is being performed safe for those employed at such places" Everitt v. Nozkowski, 285 AD2d 442, 443 [2d Dept 2002]. A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured. Linkowski v. City of New York, 33 AD3d 971, 974-975 [2d Dept 2006]; see Russin v. Louis N. Picciano & Son, 54 NY2d 311, 317-318 [1981]; Samaroo v. Patmos Fifth Real Estate, Inc., 102 AD3d 944, 946 [2d Dept 2013]; Williams v. Dover Home Improvement, Inc., 276 AD2d 626 [2d Dept 2000]. To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. Linkowski v. City of New York, 33 AD3d at 975; see, Delahaye v. Saint Anns School, 40 AD3d 679, 683 [2d Dept 2007]; Damiani v. Federated Dept. Stores, Inc., 23 AD3d 329, 332 [2d Dept 2005]. The determinative factor is whether the defendant had 'the right to exercise control over the work, not whether it actually exercised that right' (Williams v. Dover Home Improvement, Inc., 276 AD2d at 626; see Johnsen v. City of New York, 149 AD3d 822 [2d Dept 2017]; Samaroo v. Patmos Fifth Real Estate, Inc., 102 AD3d at 946)." Kavouras v Steel-More Contr. Corp., 192 AD3d 782, 784 [2d Dept 2021].

Section 200 of the Labor Law is a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work. Lombardi v Stout, 80 NY2d 290, 294 [1992]; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Doto v. Astoria Energy II, LLC, 129 AD3d 660, 663 [2d Dept 2015]; Annicaro v Corporate Suites, Inc., 98 AD3d 542, 544 [2d Dept 2012]; Guclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d 592, 593 [2d Dept 2011]. "It is well settled that an implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition." Rizzuto v L.A. Wenger Contr. Co., 91 NY2d at 352. A defendant has the authority to control the work for the purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed. See, Ortega v Puccia, 57 AD3d 54 [2008]); see also, Navarra v. Hannon, 197 AD3d 474, 476 [2d Dept 2021]. In this regard "[t]he retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the [authority to] supervise and control necessary to impose liability on an owner or general contractor pursuant to Labor Law § 200. (Dennis v City of New York, 304 AD2d 611, 612 [2003]; see, Warnitz v Liro Group, 254 AD2d 411, 411-412 [1998])." Cambizaca v New [*4]York City Tr. Auth., 57 AD3d 701, 702 [2d Dept 2008].

Indeed, as to both Labor Law §241(6) and §200, a party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured. See, Labor Law §§ 200, 241[6]; Russin v. Picciano & Son, 54 NY2d 311, 318 [1981]; Southerton v City of New York, 203 AD3d 977 [2d Dept 2022]. To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. See, Damiani v. Federated Dept. Stores, 23 AD3d 329, 331—332 [2d Dept 2005]; Southerton v City of New York, 203 AD3d 977 [2d Dept 2022]. It is not a defendant's title that is determinative, but the amount of control or supervision exercised. See generally, Aranda v. Park E. Constr., 4 AD3d 315, 316 [2d Dept 2004]. Linkowski v City of New York, 33 AD3d 971, 974 [2d Dept 2006]; Southerton v City of New York, 203 AD3d 977 [2d Dept 2022].

The record indicates that the City's inspector's role at the demolition site was merely one of general supervision, which is insufficient to impose liability under Labor Law § 241(6) or §200. There is no evidence that the City inspector supervised, directed, or controlled the manner of the demolition. No evidence was submitted to demonstrate that the City had any control or supervisory role over the work of the demolition company, the demolition project or plaintiff's job so as to enable it to prevent or correct any unsafe conditions. The parties' deposition testimony also demonstrated that the defendants did not have control or a supervisory role over the plaintiff's day-to-day work and that the City did not assume responsibility for the manner in which that work was conducted. Further, the evidence fails to support the claim that Inspector Larkins directed or controlled plaintiff's duties or responsibilities or that of the demolition project.

Contrary to Plaintiff's argument, the City witness' testimony regarding Inspector Larkins' ability to stop work if there is an unsafe condition does not rise to the level of control necessary to deem the City an owner, contractor or agent under the Labor Law sections at issue herein. The inspector's duties and responsibilities in overseeing the progress of the demolition are insufficient to trigger liability. "'[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law §200 or for common-law negligence.'" Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605, 608 [2013], quoting Austin v Consolidated Edison, Inc., 79 AD3d 682, 684 [2010]; see, Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 958 [2013]; Cambizaca v New York City Tr. Auth., 57 AD3d 701, 702 [2008]). In Austin v Consolidated Edison, Inc. the deposition testimony of the defendants' chief construction inspector demonstrated that the defendants' authority was limited only to ensuring compliance with safety regulations and contract specifications. Supra at 684. Likewise, liability cannot be imposed here under 241(6) as the City "did not have authority over the work being done where plaintiff is injured." See, Fucci v Plotke, 124 AD3d 835, 836 [2d Dept 2015]; see also, Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]. General supervisory authority over the work is insufficient to impose liability under the Labor Law. Fucci v Plotke at 837.

Plaintiff's claim that the City was an owner of the subject property is unsubstantiated in law and fact. "[M]unicipal demolition of an imminently dangerous structure in order to protect the public is an exercise of the police power and does not constitute a 'taking.'" Idlewild 94-100 Clark, LLC v. City of NY, 27 Misc 3d 1006 [Sup. Ct. Kings County 2010]. See also, Wantanabe Realty Corp. v. City of NY, 315 F. Supp. 2d 375, 401 (S.D.NY 2003). Furthermore, contrary to [*5]Plaintiff's claim, there is no evidence that the property was condemned by the City.

The City defendants also seek summary judgment as to plaintiff's claims based upon Labor Law §240(1). It is noted that Plaintiff's complaint also asserts claims pursuant to Labor Law 240(1). As the instant case does not involve a gravity—or elevation-related hazard, the City defendants established, prima facie, that they were not liable to the plaintiffs pursuant to Labor Law § 240(1); see, Nicometi v. Vineyards of Fredonia, LLC, 25 NY3d 90, 99 [2015]; Striegel v. Hillcrest Heights Dev. Corp., 100 NY2d 974, 977 [2003]; Torres v City of New York, 127 AD3d 1163 [2d Dept 2015]. No issue of fact is raised in opposition. See, Zuckerman v. City of New York, 427 N.Y.S.2d (1980).

The City defendants also argue that summary judgment is warranted because the demolition project was a discretionary act and as such, governmental immunity applies. Indeed, the Second Department in Starik v. New York, 68 AD2d 936 [2d Dept.1979] held that the City of New York, through its police power, has the authority to take summary action to order the demolition of a building in emergency situations, i.e., when a building is in imminent danger of collapse and an immediate peril to the public health and safety. Id. at 936. The determination that the situation constitutes an emergency condition either under Administrative Code § 28-215.1 or § 28-215.4, is a discretionary act immune from liability. California Suites, Inc. v Russo Demolition Inc., 98 AD3d 144 [1st Dept 2012]. Furthermore, inspection of premises and identification of safety violations in enforcement of a code are fundamental governmental functions. See, O'Connor v. New York, 58 NY2d 184, 189 [1983] (no liability for alleged negligent inspection of gas valve). No liability may be imposed on a municipality for failure to inspect, or inadequate inspection, or enforcement of a statute or regulation intended for the safety of the general public. Pelaez v. Seide, 2 NY3d 186 [2004]; Quinn v. Nadler Bros, 59 NY2d 914 [1983]; McCarthy v. City, 118 AD3d 963 [2d Dept 2014]; Kelleher v. Town of Southampton, 306 AD2d 247 [2d Dept 200]).

Furthermore, a special duty is not pled in the complaint. The existence of a special duty is a requisite element of a negligence claim that a plaintiff must plead and establish to proceed with a case challenging governmental action as negligent. Valdez v City of New York, 18 NY3d 69, 77.

Regarding Plaintiff's motion for summary judgment in his favor against the City, Plaintiff does not meet his prima facie burden. Neither Plaintiff's expert nor his submissions in support of his motion establish his prima facie burden for summary judgment in his favor under the claimed sections of the Labor Law. It is noted that the affidavit from the expert presumes that the City defendants were "owners" giving rise to possible liability. As mentioned above, the evidence does not support this claim.

In conclusion, the City met its prima facie burden that it was not an owner, supervisor, agent as required by provisions of Labor Law §241(6) or §200 thereby establishing their prima facie showing warranting summary judgment based on Labor Law §241(6) and §200. The City also established its prima facie establishment for dismissal of claims pursuant to Labor Law §240(1). As Plaintiff has not raised an issue of fact to withstand the City's cross motion for summary judgment, all claims pursuant to Labor Law §241(6), §200 and §240(1) are dismissed. Notwithstanding the above, the City also established its defense of governmental immunity as previously discussed which warrants dismissal on this basis as well.

In accordance with the above, Plaintiff's motion for summary judgment (Sequence #5) against the City defendants is Denied, as plaintiff fails to meet his prima facie burden for [*6]summary judgment. The City defendants' cross motion for summary judgment (Sequence #8) is Granted and the complaint is dismissed in its entirety as against the City defendants. The motion of Plaintiff seeking to dismiss the Third-Party complaint (Sequence #6) and the motion of the Third-Party Defendant Shoe Box to dismiss the Third-party complaint (Sequence #7) are each Granted, as academic. That potion of the motion seeking to sever is moot.

This constitutes the decision and order of the court.

Dated: August 23, 2022
ENTER.
Hon. Consuelo Mallafre Melendez
J. S. C.