Opinion
No. 13–3818.
07-20-2015
Thomas SCHAEFER, Plaintiff, v. James COHEN, Brice Kasper and Brice Kasper d/b/a Bakman Builders, Defendants.
Lawrence D. Lissauer, Esq., Finkelstein & Partners, LLP, Newburgh, for Plaintiff, movant. James Cohen, Penino & Moynihan, LLP, Henry L. Liao, Esq., White Plains, for Co-defendant, movant. Melissa J. Smallacombe, Esq., Brice Kasper and Brice Kasper d/b/a Bakman Builders, Burke Scolamiero, Mortati & Hurd, LLP, Hudson, for Co-defendant.
Lawrence D. Lissauer, Esq., Finkelstein & Partners, LLP, Newburgh, for Plaintiff, movant.
James Cohen, Penino & Moynihan, LLP, Henry L. Liao, Esq., White Plains, for Co-defendant, movant.
Melissa J. Smallacombe, Esq., Brice Kasper and Brice Kasper d/b/a Bakman Builders, Burke Scolamiero, Mortati & Hurd, LLP, Hudson, for Co-defendant.
LISA M. FISHER, J.
Plaintiff commenced this personal injury action arising from an accident that occurred on November 5, 2009, while he was working on a two-story, five bay detached garage located in the Town of Woodstock, Ulster County. Plaintiff was standing on a closed A-frame ladder to nail down the seams of felt paper located on the roof of the garage. Another laborer supported the base of the ladder. The ladder was on top of scaffolding constructed from repurposed concrete pouring forms used to make the foundation. The scaffolding was made out of wood and affixed directly to the side of the building. As Plaintiff was securing the felt paper, the scaffolding he and his co-worker were on shifted, then dipped before collapsing and dropping Plaintiff to the ground. He sustained personal injury which resulted in at least one surgery.
At all relevant times the subject property and building was owned by Defendant James Cohen (hereinafter “Defendant Cohen”) and being worked on by Defendant Brice Kasper, who was d/b/a Bakman Builders (hereinafter collectively “Defendant Kasper”). The building permit submitted to the Town of Woodstock listed the “contractor” as Defendant Kasper. The subject property contained a home which was not Defendant Cohen's primary residence, but would rather be a “summer home and weekend home,” then later in life to possibly live there.
The accident occurred at the detached garage which was being built from scratch. It was being constructed with a second-story “bonus room” above it allegedly for storage. Plaintiff and Defendant Kasper contend that Defendant Cohen represented to them that this “bonus room” would actually be an apartment to lease to tenants. Plaintiff and Defendant Kasper attempt to corroborate this by arguing Defendant Cohen owns multiple properties and leases them to other tenants, and that there were disagreements with the architect over a possible apartment above the garage which was opined to be “illegal.” Defendant Cohen rejects this notion entirely.
This issue of whether the garage was to include an apartment was the impetus for prior two motions seeking to compel the tax records of Defendant Cohen. Plaintiff and Defendant Kasper sought such records to assess whether or not Defendant Cohen intended to use the garage for residential or commercial purposes. Supreme Court (Melkonian, J.) issued two Decisions and Orders denying such requests in their entirety.
Now both Plaintiff and Defendant Cohen move for summary judgment.
The parties mailed their papers on the same day; neither party had the other's motion at the time of serving their own, thus there are no cross-motions or references to each other's motion in the initial papers.
Defendant Cohen's Motion for Summary Judgment
Defendant Cohen moves for summary judgment pursuant to CPLR R. 3212, seeking an Order dismissing all claims and cross claims against him. Specifically, Defendant Cohen argues that he is the owner of a single-family dwelling used for residential purposes only which fits him into the homeowner exemption within Labor Law § 240(1). He further alleges that he did not direct or control any injury producing work, and that he was otherwise not negligent. He points to the prior Decisions and Orders of Supreme Court (Melkonian, J.), which provide that even if the property has some commercial use, it would still fit within the exemption of Labor Law § 240(1).
Both Defendant Kasper and Plaintiff oppose the motion. Defendant Kasper argues that the motion should be denied because 1) there is ample evidence that would support a jury determination that the construction work being performed at the time of the accident was commercial in nature rather than residential, and 2) the testimony of both Plaintiff and Defendant Brice Kasper establish that Defendant Cohen did “direct and control the injury producing work.” Plaintiff's opposition makes the same arguments as Defendant Kasper and also argues that there are questions of fact and credibility which require determination by a jury.
Defendant Cohen's Reply argues that a question of fact has not been raised for a couple of reasons, including that Defendant Kasper submitted an affidavit in support that is unsworn and inadmissible. Defendant Cohen also argues that Defendant Brice Kasper's testimony establishes that he was in control and directing Plaintiff at the time of the accident to use certain safety devices, and that other safety devices were available to Plaintiff. Defendant Cohen also contends that the argument he is a real estate investor that was going to use the subject property for a commercial purpose is unsupported speculation which has already been rejected twice by Supreme Court.
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.” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc., 302 A.D.2d 700 [3d Dept 2003].) Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 [“mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient.”].)
Scaffolding and other devices for use of employees is governed by Labor Law § 240, which provides the following:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or 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.
(Labor Law § 240[1] [emphasis added].)
It is well settled that “the purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves[.]” (Panek v. County of Albany, 99 N.Y.2d 452, 456–57 [2003] ; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500 [1993] [stating the purpose of Section 240(1) is “to impose the responsibility for safety practices on those best suited to bear that responsibility.”].) To that end, Section 240(1) “is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.” (Panek, 99 N.Y.2d at 457, quoting Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559 [1993].)
The Court of Appeals has made it clear that Section 240(1) “impos[es] absolute liability” for a breach which has proximately caused an injury (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991] ; see Bland v. Manocherian, 66 N.Y.2d 452, 459–61 [1985] ), and that such duty is “nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control.” (Rocovich, 78 N.Y.2d at 513 [emphasis omitted]; see Saint v. Syracuse Supply Co., ––– NE3d ––––, 2015 N.Y. Slip Op. 02802 [Court of Appeals, April 2, 2015] ; Cahill v. Triborough Bridge and Tunnel Auth., 4 NY3d 35, 39 [2004] ; Haimes v. New York Telephone Co., 46 N.Y.2d 132, 136–37 [1978] ; Lawyer v. Rotterdam Ventures, Inc., 204 A.D.2d 878, 879 [3d Dept 1994] [citations omitted].) While Section 240(1) is liberally construed (Panek, 99 N.Y.2d at 457, quoting Gordon, 82 N.Y.2d at 559 ), such interpretation should be done with “a commonsense approach to the realities of the workplace at issue” and not in a manner which “would be impractical and contrary to the very work at hand[.]” (Salazar v. Novalex Contracting Corp., 18 NY3d 134, 140 [2011].)
Section 240(1) creates a “homeowner exemption” for the owners of one and two-family dwellings. (See Labor Law § 240[1].) It is axiomatic that owners of commercial properties—rather than residential—do not fit within the homeowner exemption. It has been “well settled that the existence of both residential and commercial usages of a particularly property do[ ] not result in the automatic loss to the dwelling owner of the exemption provided under the Labor Law.” (Johnson v. Fox, 268 A.D.2d 782, 783–84 [3d Dept 2000], citing Cannon v. Putnam, 76 N.Y.2d 644, 650 [1990].) “Instead, whether the exemption is available to an owner in a particular case turns on the site and purpose of the work.” (Cannon, 76 N.Y.2d at 650.) Therefore, “if the main purpose of the construction project is directly related to the owner's residential use of the property, the owner will receive the benefit of the exemption, even though the work may also incidentally benefit the commercial section of the structure.” (Johnson, 268 A.D.2d at 784 ; see Yerdon v. Lyon, 259 A.D.2d 864, 865 [3d Dept 1999] ; see also Bartoo v. Buell, 87 N.Y.2d 362, 368 [1996] ; Cannon, 76 N.Y.2d at 650.)
Here, Defendant Cohen met his initial burden of demonstrating prima facie entitlement to judgment as a matter of law. His testimony provides that this was a one family dwelling and he did not direct or control any of the injury producing work. Thus, the homeowner exemption under Section 240(1) shields Defendant Cohen from liability. Even though the work being performed was not on the residential home but rather on the garage, this is still considered an extension of the dwelling since the garage served a “substantial residential purpose” because it included five (5) vehicle bays and a “bonus room” to be used for storage. (See Bartoo, 87 N.Y.2d at 369 [holding that work on a barn used for storage of commercial goods was a “substantial residential purpose [ ]” which is “akin to a garage and should be considered an extension of the dwelling within the scope of the homeowner exemption.”].) Defendant Cohen also testified that he did not intend to use the “bonus room” as an apartment and it was not constructed for that purpose. Thus, the main purpose of the construction project was directly related to the owner's residential use of the property. (See Johnson, 268 A.D.2d at 784 ; see also Cannon, 76 N.Y.2d at 650.) Even assuming arguendo that Defendant Cohen was placing an apartment above the garage, he would still be protected under the homeowner exemption because that would merely add a second family to the dwelling which is also protected by Labor Law § 240(1). (See Labor Law § 240[1] [“except owners of one and two-family dwellings ”] [emphasis added].)
Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 [“mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient.”].) “[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination.” (Swartout v. Consolidated Rail Corp., 294 A.D.2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ; Greco v. Boyce, 262 A.D.2d 734, 734 [3d Dept 1999] [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.”].)
Here, both Plaintiff and Defendant Kasper have raised questions of fact sufficient to defeat Defendant Cohen's motion for summary judgment. First, the Court disagrees entirely with both Plaintiff and Defendant Kasper's argument that there is ample evidence to support a jury determination that the construction work being performed was commercial in nature rather than residential. There is no credible or admissible factual evidence to support these claims (see Zuckerman, 49 N.Y.2d at 562 [“mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient.”] ), and even if there were such factual evidence, the aforementioned law is clear and supportive of Defendant Cohen's position. (See Labor Law § 240[1] ; Johnson, 268 A.D.2d at 784 ; Yerdon, 259 A.D.2d at 865 ; see also Bartoo, 87 N.Y.2d at 368 ; Cannon, 76 N.Y.2d at 650.)
The Court also notes that the affidavit of Michelle Conley is unsworn and there is no evidence that the “witness,” Frank Margan, is an oath bearer. The affidavit also contains multiple errors, including the basic first name of the witness, which was changed in handwriting but again not sworn to by the deponent. Mr. Margan's affidavit does not save Ms. Conley's affidavit, as Mr. Margan's affidavit 1) does not state where it was sworn to (state and county) and the Court cannot identify whether it was properly notarized, and 2) the affidavit merely swears to hearsay, which presents a double hearsay issue rendering Ms. Conley's affidavit still deficient. As such, the Court has ignored Ms. Conley's affidavit in its entirety as it is incompetent to prove the truth of the matter asserted.
However, the Court does agree with Plaintiff and Defendant Kasper that there is a question of fact as to whether Defendant Cohen directed or controlled the construction work. Section 240(1) only shields an owner if he “do[es] not direct or control the work[.]” It is important to note that “[t]he phrase direct or control' as used in [the statute] is construed strictly and refers to the situation where the owner supervises the method and manner of work [.]' “ (Pascarell v. Klubenspies, 56 AD3d 742, 742 [3d Dept 2008], quoting McGlone v. Johnson, 27 AD3d 702, 702 [2d Dept 2006].) Said differently, the relevant inquiry “in ascertaining whether a particular homeowner's actions amount to direction and control of a project ... is the degree to which the homeowner supervised the method and manner of the actual work being performed by the [injured] party.” (Bombard v. Pruiksma, 110 AD3d 1304, 1305 [3d Dept 2013] [internal quotation marks and citations omitted].) “That is, the owner must significantly participate in the project before he or she will be deemed to have crossed the line from being a legitimately concerned homeowner to a de facto supervisor' who is not entitled to the exemption.” (Peck v. Szwarcberg, 122 AD3d 1216, 1218 [3d Dept 2014], quoting Rosenblatt v. Wagman, 56 AD3d 1103, 1104 [3d Dept 2008] [internal quotation marks and citation omitted].)
As to what constitutes direction or control, there is a plethora of case law, particularly in the Third Department, which governs this inquiry. This case law demonstrates that the direction or control exception is not met by providing site plans, purchasing material, hiring contractors, or visiting the worksite (Lane v. Karian, 210 A.D.2d 549, 550 [3d Dept 1994] ), or with general instructions as to size and orientation of project, “sporadic [ ]” visits to check progress, hiring contractors, arranging for use of equipment, or purchasing materials (Van Hoesen v. Dolen, 94 AD3d 1264, 1265 [3d Dept 2012] ), or in “basic planning and coordination of the renovation project,” hiring the general contractor, paying subcontractors and keeping track of their hours worked, completing the building permit applications, and drafting sketches of the work they wanted done (Chapman v. Town of Copake, 67 AD3d 1174, 1175–76 [3d Dept 2009] ), or by visiting the construction site at least five times per week, reviewing plans with the architect, hiring some subcontractors, and making general decisions (Siconolfi v. Crisci, 11 AD3d 600, 601 [2d Dept 2004] ), or by “presenting ideas and suggestions, making observations and inquiries, and inspecting work” while maintaining general supervisory authority (Stephens v. Tucker, 184 A.D.2d 828, 829 [3d Dept 1992] ), in inspecting the construction site and making complaints (Jerkins v. Jones, 255 A.D.2d 805, 806 [3d Dept 1998] ), or even when the homeowner lists himself as the general contractor on the building permit application, arranging for the building inspector's visit to inspect the construction, hiring all subcontractors and laborers, ordered and paying for materials, and even participating in the excavation and preparation of the building's foundation (Snyder v. Gnall, 57 AD3d 1289, 1290 [3d Dept 2008] ).
The Court conducted this extensive research, largely on its own accord as only two of the above-referenced cases were cited in Defendant Cohen's moving papers. While the Court is mindful that these cases exculpated the homeowner who performs a rather wide range of acts aforementioned—many of which Plaintiff and Defendant Kasper allege Defendant Cohen performed such as hiring, firing, negotiating wages, and paying contractors, subcontractors, and laborers, purchasing supplies, going on shopping trips for materials, offering to pay some of Plaintiff's medical bills after the subject accident, directing Plaintiff and Defendant Kasper to use the leftover wood as scaffolding instead of buying metal scaffolding, allegedly making Defendant Kasper redo an entire sink setup because it was just off the specifications he requested, allegedly criticizing how Defendant Kasper used tools, such as a screwdriver—the Court still finds those cases and this one sufficiently different enough to create a question of fact. Specifically, the cited cases did not involve the direction and control over the manner of work being performed which proximately caused the injury. Said differently, none of the aforementioned cases dealt with the scenario where the defendant directed the laborers to use something that ultimately failed and caused the subject injury.
Here, both Plaintiff and Defendant Kasper have testified that Defendant Cohen directed the leftover wood from the concrete foundation pour forms to be repurposed into scaffolding. Neither Plaintiff nor Defendant Kasper could change Defendant Cohen's mind regarding his choice to do this despite protest. Defendant Kasper requested metal scaffolding, but Defendant Cohen would not agree to it and said to just use the wood. Both Plaintiff and Defendant Kasper allegedly told Defendant Cohen they felt uncomfortable with the wood scaffolding. Plaintiff reported to Defendant Kasper that he did not think the makeshift wood scaffolding was safe—he even called it a “contraption.” It was the wood scaffolding that Defendant Cohen directed Plaintiff and Defendant Kasper to use which failed, and Defendant Cohen refused to let Defendant Kasper use the metal scaffolding despite requests out of safety concerns. In addition, Defendant Kasper testified that Defendant Cohen “would insist on going shopping with [him] if he had any doubt that I wasn't going to pick out what he had wanted.” Defendant Kasper further testified that Defendant Cohen was “the most controlling person I ever worked for.”
This case is not like the aforementioned cases, where homeowners would hire subcontractors, pay laborers, draft sketches, or supply tools, because those acts were not injury producing—such acts were not necessarily controlling the actual work being performed. However, Defendant Cohen's direction to use the wood forms for scaffolds and to not use the metal scaffolding was injury producing—he has directed and controlled the method and manner of the actual work being performed which resulted in Plaintiff's injuries. (See Bombard, 110 AD3d at 1305.) Even though Defendant Cohen averred in his deposition that he did not exercise any such control over the work being completed, the depositions of both Plaintiff and Defendant Brice Kasper painted a very different picture which creates a question of fact sufficient to defeat Defendant Cohen's motion for summary judgment.
For these reasons, Defendant Cohen's motion is also insufficient to extinguish Plaintiff's Labor Law § 200 claim as there is a question of fact as to whether Defendant Cohen had “the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition.” (Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317 [1981] ; see also Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 353 [1998] [noting that, where the evidence “would have permitted the jury to rationally conclude that defendant possessed the requisite supervisory control over that portion of the work activity bringing about the injury to enable it to prevent the creation of the unsafe condition or plaintiff's exposure to it.”].) Given that Defendant Cohen received complaints from Plaintiff and Defendant Kasper that the scaffolding was unsafe in their opinion and that they felt uncomfortable using it, in a light viewed most favorable to the non-movants, the Court finds a favorable inference arises which defeats the summary judgment motion. At the very least, a question of fact has been risen.
Therefore, Defendant Cohen's motion for summary judgment is denied in its entirety.
Plaintiff's Motion for Summary Judgment
Plaintiff also moves for summary judgment premised on a violation of Labor Law § 240(1) against Defendant Kasper only. He alleges that Defendant Kasper failed to adhere to the non-delegable duties as set forth by Labor Law § 240(1) and such failure proximately caused the injuries sustained by Plaintiff. He specifically points out the dangerous nature of the scaffolding and that it failed.
Plaintiff's moving papers noted he only moved as to Defendant Kasper based on the other two Decisions and Orders, but if the Court decided that Defendant Cohen was liable, to also award summary judgment against Defendant Cohen or allow Plaintiff to make another motion for such relief. First, the Court cannot issue such relief awarding Plaintiff summary judgment against a party it did not move against, nor against a party that did not oppose its motion. Second, for procedural reasons mentioned below, infra, Plaintiff is not permitted to make another motion and should have moved for relief as to Defendant Cohen if he wanted such relief given that the time to make dispositive motions has been extended beyond the original scheduling order, the CPLR, and now beyond this Court's extension.
Defendant Kasper opposes the motion, arguing that summary judgment is not appropriate for thefollowing two reasons: 1) Plaintiff was a “recalcitrant worker” in that he was injured as a direct result of his refusal to keep himself tied off with the readily available rope, despite being repeatedly told to tie off while working on the subject scaffold, including a direct order that he do so within minutes of his fall, as well as an order to not have two people standing on the same scaffolding brace at the same time; and 2) because Defendant Kasper was not Plaintiff's employer, general contractor, nor Defendant Cohen's agent for the work being performed at the time of Plaintiff's fall, but rather they were separate co-independent contractors hired by Defendant Cohen.
Plaintiff's Reply argues that the instructions given to Plaintiff and the other laborers were “general instructions” which are insufficient to establish that Plaintiff was a recalcitrant worker. He also notes that there is no affidavit of Defendant Kasper with a specific recollection of giving Plaintiff such instructions on the day of the accident. Plaintiff also states that he and the other laborer were not standing on the same brace when it collapsed, but on adjacent ones. Plaintiff points out that Defendant Kasper's opposition essentially admitted that ropes provided to them were not proper safety devices, that the scaffolds were insufficient and dangerous, and that no harnesses were even available on the jobsite. Plaintiff cites to multiple cases in support of their position, however none from the Third Department.
As aforementioned, the Court of Appeals has made it clear that Labor Law § 240(1) imposes a “nondelegable” duty that an owner, contractor, or its agent has “absolute liability” for a breach or violation of this section which has proximately caused an injury. (See Rocovich, 78 N.Y.2d at 513 ; Bland, 66 N.Y.2d at 459–61 Saint, ––– NE3d ––––, 2015 N.Y. Slip Op. 02802 ; Cahill, 4 NY3d at 39 ; Haimes., 46 N.Y.2d at 136–37 ; Lawyer, 204 A.D.2d at 879.) This section is to be liberally constructed. (Panek, 99 N.Y.2d at 457, quoting Gordon, 82 N.Y.2d at 559.)
A violation under Labor Law § 240 “requires a showing that safety devices like those enumerated in the statute were absent, inadequate or defect, and that this was a proximate cause of” the accident. (Jock v. Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071 [3d Dept 2009] ; see Ross, 81 N.Y.2d at 500–01 [providing the legislative intent, that “Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. ”] [emphasis preserved from original].) Thus, “[t]he critical inquiry in determining coverage under the statute is what type of work the plaintiff was performing at the time of injury.' “ (Panek, 99 N.Y.2d at 457, quoting Joblon v. Solow, 91 N.Y.2d 457, 465 [1998].) Section 240(1) does not apply unless “the plaintiff's injuries result from the elevation-related risk and the inadequacy of the safety device.” (Nicometi v. Vineyards of Fredonia, LLC, ––– NE3d ––––, 2015 N.Y. Slip Op. 02801 [Court of Appeals, April 2, 2015] ; see also Fabrizi v. 1095 Ave. of Americas, L.L.C., 22 NY3d 658 [2014] ; Runner v. New York Stock Exchange, Inc., 13 NY3d 599, 603 [2009] ; Cohen v. Memorial Sloan–Kettering Cancer Ctr., 11 NY3d 823 [2008].)
A showing of potential comparative negligence by the injured worker is not enough to avoid summary judgment. (Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003] ; see Portes v. New York State Thruway Auth., 112 AD3d 1049, 1050 [3d Dept 2013].) However, “where a plaintiff's own actions are the sole proximate cause of the accident, there can be no liability.” (Cahill, 4 NY3d at 39 ; Blake, 1 NY3d at 29–91; Robinson v.. East Med. Ctr., LP, 6 NY3d 550, 554 [2006] ; Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 959–60 [1998].)
Here, Plaintiff met his initial burden of demonstrating prima facie entitlement to judgment as a matter of law. Each party's testimony established that the scaffolding Plaintiff was standing on collapsed, which renders such scaffolding defective and inadequate to provide Plaintiff “proper protection”; this was the proximate cause of Plaintiff's injuries. (See Jock, 62 AD3d at 1071 ; Ross, 81 N.Y.2d at 500–01.) Even though Plaintiff was standing on an A-frame ladder which was improperly closed when it should have been open before he climbed it, this ladder did not slip, move, or otherwise contribute to his fall; the scaffolding is what shifted, dipped down, then dropped Plaintiff to the ground. Nor is there any evidence that the closed A-frame ladder caused the scaffolding to collapse. Further, the rubber feet on the legs of the ladder was in contact with the ground and Plaintiff's co-worker was standing at the base of the ladder securing it by keeping it steady. Thus, any claim that the ladder had anything to do with the fall is without merit. There is also no credible testimony that Plaintiff's actions contributed to his fall, such as that he slipped, fell, misstepped, or the like. Notwithstanding, even assuming arguendo that Plaintiff did contribute to the fall, this was not the sole proximate cause of the accident as it is clear the scaffolding he was standing on failed. (See Cahill, 4 NY3d at 39 ; Blake, 1 NY3d at 29–91; Robinson, 6 NY3d at 554 ; Weininger, 91 N.Y.2d at 959–60.)
Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 ; Swartout, 294 A.D.2d at 786 ; see also Oritz, 18 NY3d at 339 ; Greco, 262 A.D.2d at 734 [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.”].)
First, Defendant Kasper argues that summary judgment is not appropriate because Plaintiff was a recalcitrant worker since he failed to tie himself off with rope even though he was directly told to so do multiple times. Defendant Kasper also claims that Plaintiff and the other laborers were repeatedly warned to not stand on the same brace of the scaffolding, which is what Defendant Kasper claims they were doing when the scaffolding collapsed. Lastly, Defendant Kasper claims that Plaintiff was the sole proximate cause of his accident, to which the Court rejected above as it is clear that the scaffolding collapsed which makes Plaintiff not the sole cause.
While Labor Law § 240(1) “imposes absolute liability on employers who fail to provide their employees with proper safety devices, the statutory protection does not extend to workers who have adequate and safe equipment available to them but refuse to use it.' “ (Tennant v. Curcio, 237 A.D.2d 733, 734 [3d Dept 1997], quoting Smith v. Hooker Chems. & Plastics Corp., 89 A.D.2d 361, 366 [4th Dept 1982], appeal dismissed 58 N.Y.2d 824 [1983] [internal citations omitted]; see also Gordon, 82 N.Y.2d at 563 [noting that it is “well settled that an injured worker's contributory negligence is not a defense to a Labor Law § 240(1) claim, [but] the recalcitrant worker' defense may allow a defendant to escape liability”].)
The recalcitrant worker defense “requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employee.” (Tennant, 237 A.D.2d at 734 ; see also Gordon, 82 N.Y.2d at 563 ; Hagins v. State, 81 N.Y.2d 921, 922–23 [1993].) However, “the mere presence of safety devices at the worksite does not diminish [a] defendant's liability.” (Hall v. Cornell Univ., 205 A.D.2d 872, 873 [3d Dept 1994] [citation and quotation omitted]; accord St. Peter's Hosp. of the City of Albany, 223 A.D.2d 903, 904 [3d Dept 1996] [finding safety devices “mere presence” on the work site does not satisfy the doctrine].) The “safety device must be visible at the worker's immediate work site.” (Kaffke v. New York State Elec. & Gas Corp., 257 A.D.2d 840, 841 [3d Dept 1999].) Further, general safety instructions are insufficient. (See Tennant, 237 A.D.2d at 734–35.) Nor is “an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices[.]” (Stolt v. Gen. Foods Corp., 81 N.Y.2d 918, 920 [1993] ; see Morin v. Machnick Builders, Ltd., 4 AD3d 668, 671 [3d Dept 2004] [“Merely failing to follow [a] coworkers' advice did not render plaintiff recalcitrant.' “].)
Here, the Court agrees that there is a question of fact as to whether Plaintiff was a recalcitrant worker in failing to use allegedly available ropes and/or tie-off lines. Plaintiff testified that there were no tie-off lines anywhere on the side of the building where he was working when he fell. (Plaintiff's Deposition, at pg. 145). Defendant Kasper testified to the contrary, stating that not only were there tie-off lines and ropes available directly where Plaintiff was working, but that Defendant Kasper would also “adamantly insist[ ] every morning when we got stated” that Plaintiff must be tied-off. (Defendant Kasper's Deposition, at pg. 241). Defendant Kasper also testified that he would see Plaintiff without a rope on and he would direct him to put it on immediately. Defendant Kasper further testified that he and Plaintiff “hemmed and hawed and went back and forth over him even tying himself off.” (Defendant Kasper's Deposition, at pg. 133.) While it is not clear to the Court whether the rope was an adequate safety device, particularly given that there were no harnesses provided and Plaintiff testified he was not wearing a tool belt at the time of his fall so as to tie a rope to it, the Court does find a pure question of fact as to whether 1) the rope was even provided, and 2) whether Plaintiff refused to utilize an available safety device (the rope) despite direct instructions to do so.
The Court rejects Defendant Kasper's argument that Plaintiff and his co-worker were repeatedly instructed to stay off the same brace of the scaffolding which is another attempted avenue for the recalcitrant worker defense used by Defendant Kasper. First, Plaintiff testified they were standing on adjacent braces and Defendant Kasper was on the other side of the building thus he did not witness the accident or where the laborers were standing. Second, instructions by an employer or owner to avoid engaging in unsafe practices does not invoke the recalcitrant worker doctrine. (See Stolt v. Gen. Foods Corp., 81 N.Y.2d at 920 ; Morin, 4 AD3d at 671.)
Therefore, Plaintiff's motion for summary judgment must be denied as Defendant Kasper has raised a triable issue of fact as to whether Plaintiff was a recalcitrant worker.
The Court notes that Defendant Kasper's final argument, that he was not the general contractor, is unavailing. Although it may appear that there is a question of fact because Plaintiff did not know who he was working for, Defendant Cohen testified he believed Defendant Kasper was the general contractor, and Defendant Kasper testified he thought Defendant Cohen was in charge, this is superfluous. While Defendant Cohen was responsible for paying Defendant Kasper and the other laborers—he would give the earned piles of cash to Defendant Kasper to hand out most paydays—Defendant Kasper clearly exercised a supervisory role over the construction site by holding safety meetings, directing what was to be completed on any given day, instructing the laborers how to complete tasks (i.e., building the scaffolds at Defendant Cohen's direction), purchasing supplies, providing tools, and correcting laborers who were not utilizing safety devices (i.e., arguing with Plaintiff over being tied off, or warning the laborers to not stand on the same bracket of scaffolding at once). While Defendant Cohen did a lot of the hiring as to other subcontractors and laborers, Defendant Kasper did hire the masonry subcontractor to pour the cement per Defendant Cohen's alleged instructions. This is a pure, crystal-clear example of the agency relationship between Defendant Cohen and Defendant Kasper. Moreover, Defendant Kasper was also listed as the general contractor on the building permit. While he cites to Utica Mut. Ins. Co. v. Style Management Assocs., Corp., 125 AD3d 759 (2d Dept 2015), for the proposition that this alone is insufficient as to whether he was the general contractor absent proof that he acted as a general contractor by hiring, supervising, and paying contractors, as aforementioned he did perform those tasks.
Defendant Kasper testified that Defendant Cohen allegedly instructed him to find someone who he could work with.
Even though Defendant Kasper initially argues there is a triable issue of fact as to whether he is the general contractor, here Defendant Kasper actually argues by paraphrasing the cited case that such argument is insufficient to raise a triable issue of fact. Since Defendant Kasper is tasked with raising a triable issue of fact to successfully defend this motion, and based on a fair reading of the cited case's decision, the Court infers that this was a typo by counsel.
Defendant Kasper also cites to one of Plaintiff's medical records which recorded he was performing “self-employed construction” when the accident occurred. This is hearsay and clearly inadmissible as it is not germane to treatment. (CPLR R. 4518 ; see Williams v. Alexander, 309 N.Y. 282 [1955]; see also Cuevas v. Alexander's, Inc., 23 AD3d 428, 429 [2d Dept 2005].)
Thus, the record is clear that Defendant Kasper had at least concurrent power over the overall project, and almost an exclusive supervisory role over the construction site. As such, his argument fails as the record demonstrates evidence he is an agent of the property owner and may still be held liable by a trier of fact under Labor Law § 240(1). (See Labor Law § 240[1] [imposing liability as to “[a]ll contractors and owners and their agents ....“]; Walls v. Turner Constr. Co., 4 NY3d 861, 863–64 [2005] [“Although a construction manager of a work site is generally not responsible for injuries under Labor Law § 240(1), one may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury.”]; Russin, 54 N.Y.2d at 318 [“When the work giving rise to [the nondelegable duties of Labor Law §§ 240 and 241 ] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory agent' of the owner or general contractor.”].)
Conclusion
As an ancillary note, the Court also finds that both Plaintiff and Defendant Cohen's motions for summary judgment are late and also procedurally denied as time-barred. Neither motion was filed on March 25, 2015 as required by this Court, but rather served on such date. This date was an extension from Supreme Court's (Melkonian, J .) scheduling order which required dispositive motions within sixty (60) days after the filing of the note of issue, which was September 2, 2014. Even CPLR R. 3212(a) only permits dispositive motions to be made no later than one hundred twenty (120) days after the filing of the note of issue—which these motions are beyond. But with leave as permitted under CPLR R. 3212(a), this Court further extended the time for dispositive motions beyond the original scheduling order and time allotted in the CPLR. This resulted in delay of the trial date for the almost six-year-old accident which injured Plaintiff.
Furthermore, Plaintiff's papers also requested reservation for a future motion against Defendant Cohen if the Court finds he may be liable, which just demonstrates a complete lack of reverence to the set deadlines for dispositive motions issued by two different Supreme Courts, which is also beyond the CPLR. It should be evident in this Court's decision that this case is replete with questions of fact for jury resolution, and the injured Plaintiff should not be further delayed his day in Court by more motion practice which is unlikely to be successful.
As such, each motion is also denied in its entirety for failing to comply with the Court's disclosure request, which it has broad discretion to oversee disclosure, including pursuant to CPLR § 3126 for failing to comply with the Court's disclosure Order and CPLR R. 3212(a) for failing to make the respective motion within the afforded time by leave of court.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Plaintiff's motion is DENIED, and all other relief requested therein is denied in its entirety; and it is further
ORDERED that Defendant Cohen's motion is DENIED, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
Papers Considered:
Notice of motion of Plaintiff, Lawrence D. Lissauer, Esq., dated March 24, 2015; Affirmation of Lawrence D. Lissauer, Esq., with annexed exhibits, dated March 24, 2015;
Notice of motion for summary judgment of Co-defendant, James Cohen, dated March 24, 2015; Affirmation in support of motion for summary judgment of Henry L. Liao, Esq., with annexed exhibits, dated March 24, 2015;
Attorney affirmation in opposition to summary judgment motion of Plaintiff of Melissa J. Smallacombe, Esq., with annexed exhibits, dated April 13, 2015; Memorandum of Law in opposition to Plaintiff's motion for summary judgment of Lia B. Mitchell, Esq., dated April 14, 2015;
Attorney affirmation in opposition to summary judgment motion of Defendant James Cohen of Melissa J. Smallacombe, Esq., dated April 14, 2015; Memorandum of law in opposition to Defendant Cohen's motion for summary judgment of Lia B. Mitchell, Esq., dated April 14, 2015;
Affirmation in opposition to Cohen's motion for summary judgment of Lawrence D. Lissauer, Esq., with annexed exhibits, dated April 24, 2015;
Reply affirmation of Henry L. Liao, Esq., dated May 14, 2015; and
Reply affirmation in support of Plaintiff's motion for summary judgment of Lawrence D. Lissauer, Esq., dated May 15, 2015.