Opinion
7778/2006.
Decided April 12, 2010.
Eric M. Baum Esq., Simon Eisenberg Baum, LLP, New York, NY, for Plaintiff.
Maria Sestito Esq., Law Office of Thomas K. Moore, White Plains, NY, for Defendant.
I. BACKGROUND
Plaintiff sues to recover for personal injuries he sustained January 31, 2005, when he fell from a fiberglass A-frame ladder while cutting straps from ceiling pipes in a warehouse owned by defendant. Plaintiff and defendant each now moves to reargue defendant's motion for summary judgment, which this court granted in part and denied in part in an order dated September 21, 2009. For the reasons explained below, the court denies both motions for reargument.
II. STANDARDS FOR REARGUMENT
Motions for reargument must be based on facts or law that the prior decision overlooked or misapprehended. C.P.L.R. § 2221(d)(2); People v. D'Alessandro , 13 NY3d 216 , 219 (2009); Belrose Fire Suppression, Inc. v. Stack McWilliams, LLC , 51 AD3d 485 (1st Dep't 2008); Mendez v. Queens Plumbing Supply, Inc. , 39 AD3d 260 (1st Dep't 2007); Jones v. Budhwa , 23 AD3d 154 (1st Dep't 2005). Reargument may be permitted as long as it is neither a rehash of arguments previously raised nor a vehicle for new arguments that could have been, but were not raised in the initial motion. People v. D'Alessandro, 13 NY3d at 219; Tounkara v. Fernicola , 63 AD3d 648 , 649 (1st Dep't 2009). See Lee v. Consolidated Edison Co. of New York , 40 AD3d 481 , 482 (1st Dep't 2007); Pryor v. Commonwealth Land Tit. Ins. Co. , 17 AD3d 434 , 435-36 (2d Dep't 2005).
III. PLAINTIFF'S MOTION TO REARGUE
Plaintiff moves to reargue defendant's motion for summary judgment insofar as the court granted the motion and dismissed plaintiff's claims under New York Labor Law §§ 200, 240(1), and 241(6). Although plaintiff's motion refers to renewal and reargument, the substance of his motion refers only to reargument, and plaintiff does not present any new evidence. C.P.L.R. § 2221(e)(2). Plaintiff claims the court overlooked his deposition testimony that Barry Montgomery hired plaintiff to work at defendant's building and the affidavit of plaintiff's sister that controverted the deposition testimony of Montgomery and Angelo Koutsavlis, a principal of defendant corporation.
Contrary to the obsolete standard defendant persists in applying, despite repeated corrections in the court's previous decision and at prior and subsequent oral arguments, defendant must establish that neither it nor its agent or tenant hired plaintiff, even if defendant was unaware of the hiring or the work for which he was employed. See Abbatiello v. Lancaster Studio Assoc. , 3 NY3d 46 , 50-51 (2004); Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573, 576-77 (1990). Defendant's unawareness of the employment does not preclude its liability for a violation of Labor Law §§ 200, 240(1), and 241(6). Stringer v. Musacchia , 11 NY3d 212 , 215 (2008); Morales v. D A Food Serv. , 10 NY3d 911 , 913 (2008); Sanatass v. Consolidated Inv. Co., Inc. , 10 NY3d 333 , 341-42 (2008).
Applying the correct standard, however, and construing all evidence in plaintiff's favor, Cahill v. Triborough Bridge Tunnel Auth. , 4 NY3d 35 , 37 (2004), defendant satisfied its burden to produce evidence, C.P.L.R. § 3212(b); Smalls v. AJI Indus., Inc. , 10 NY3d 733 , 735 (2008); JMD Holding Corp. v. Congress Fin. Corp. , 4 NY3d 373 , 384 (2005), that plaintiff was not employed by defendant or its agent or tenant. Stringer v. Musacchia, 11 NY3d at 216-17; Abbatiello v. Lancaster Studio Assoc., 3 NY3d at 51-52. See Ferluckaj v. Goldman Sachs Co., 12 NY3d 316, 319-20 (2009). Defendant presented both Montgomery's testimony, that neither defendant nor its agent or tenant hired Montgomery and that he did not hire plaintiff, and Koutsavlis's testimony, that defendant did not hire Montgomery or plaintiff. Koutsavlis further testified that his inspections would have informed him of any work at the premises that might have entailed the work plaintiff was engaged in when he was injured, as he described it, but defendant's personnel were unaware of any such work.
In rebuttal, plaintiff raises no factual issue, Hyman v. Queens County Bancorp, Inc. , 3 NY3d 743, 744 (2004), that he was employed by defendant or its agent or tenant, even in the evidence plaintiff claims the court overlooked. Stringer v. Musacchia, 11 NY3d at 216-17; Abbatiello v. Lancaster Studio Assoc., 3 NY3d at 51-52. See Ferluckaj v. Goldman Sachs Co., 12 NY3d at 320; Sanatass v. Consolidated Inv. Co., Inc., 10 NY3d at 341-42. At most, the evidence connects plaintiff to Montgomery, but it does not connect plaintiff to defendant or Montgomery to defendant.
IV. DEFENDANT'S MOTION TO REARGUE
Defendant moves to reargue its motion for summary judgment insofar as the court denied summary judgment dismissing plaintiff's claim of defendant's ordinary negligence, Gibson v. Worthington Div. of McGraw-Edison Co., 78 NY2d 1108, 1110 (1991), based on defendant's duty to maintain its premises free of hazards to a foreseeable occupant. Peralta v. Henriquez, 100 NY2d 139, 144 (2003); Kellman v. 45 Tiemann Assocs., 87 NY2d 871, 872 (1995); Branham v. Loews Orpheum Cinemas, Inc. , 31 AD3d 319 , 322 (1st Dep't 2006), aff'd, 8 NY3d 931 (2007). Defendant bore the initial burden to establish a prima facie defense to this claim. C.P.L.R. § 3212(b); Legon v. Petaks , 70 AD3d 457 (1st Dep't 2010); Garcia v. Best Value Discount Corp. , 67 AD3d 480 (1st Dep't 2009); Caicedo v. Cheven Keeley Hatzis . 59 AD3d 363 (1st Dep't 2009). See Smalls v. AJI Indus., Inc., 10 NY3d at 735; JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d at 384. If defendant fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in plaintiff's opposition. Roman v. Hudson Tel. Assoc. , 15 AD3d 227 , 228 (1st Dep't 2005); Potter v. NYC Partnership Hous. Dev. Fund Co., Inc. , 13 AD3d 83 , 85 (1st Dep't 2004).
Defendant has not presented conclusive evidence that in January 2005 defendant maintained its premises free of hazards to a foreseeable occupant or that defendant was relieved of that duty. Koutsavlis testified only that the premises were not under construction, not that they were safe. Although he testified that the premises were rented to three tenants, including an automobile repair shop, defendant produced no leases, nor other evidence, showing that defendant was out of possession of the area where plaintiff was injured and that the tenant there undertook the duty to maintain the leased area. Mancuso v. J Velco Co., L.P. , 58 AD3d 577, 578 (1st Dep't 2009); Woods v. Daniella Realty Corp , 15 AD3d 231 (1st Dep't 2005); Thompson v. Corbett , 13 AD3d 1060 , 1061-62 (1st Dep't 2004); Obie v. Catsimatidis , 10 AD3d 569 (1st Dep't 2004).
In fact, Koutsavlis's testimony that he inspected the premises' occupied areas regularly at least once per month and whenever an occupant notified him of "a problem" suggests that defendant landlord may have retained a duty to repair those occupied areas. Aff. of Maria Sestito (Nov. 19, 2009), Ex. E at 16. While he admitted that defendant did not in fact perform maintenance, he never referred to any lease or testified to any oral rental agreement that transferred that duty. E.g., Vasquez v. RVA Garage, 238 AD2d 407, 408 (2d Dep't 1997).
Finally, although the testimony of Montgomery and Koutsavlis may indicate plaintiff was not working at defendant's premises when he was injured and incurred his injury elsewhere, plaintiff's deposition testimony rebuts this prima facie defense. Plaintiff testified that he was injured inside defendant's building, which he could recognize and describe even though he did not recall the precise address. He further testified that the premises were littered with obstacles, specifically automobile parts strewn on the floor, suggesting the automobile repair shop, which prevented an erected ladder from standing stable and which injured him when he fell on top of them. This testimony raises factual questions not only that the equipment, materials, or debris on the floor caused his injuries, but also that it was a persistent unsafe condition apparent to Koutsavlis when he inspected. E.g., Obie v. Catsimatidis , 10 AD3d 569 . In fact, while Koutsavlis testified he was unaware of construction or renovation at the premises, he never indicated he was unaware of unsafe equipment, materials, or debris on the floors.
V. CONCLUSION
For the foregoing reasons, the court denies both plaintiff's and defendant's motions to reargue defendant's prior motion for summary judgment and adheres to the decision dated September 21, 2009. This decision constitutes the court's order.