Opinion
508161/14
01-05-2017
Roman Shchleglyuk, Plaintiff, v. Esther Feldman Trust, ESTHER FELDMAN TRUSTEE, ESTHER FELDMAN and LEON FELDMAN, Defendants.
Attorney for Plaintiff Ronemus & Vilensky 112 Madison Avenue — 2nd Floor New York, New York 10016 (212) 779-7070 Attorney for Defendants Anthony E. DeLuca, Esq. 26 Court Street -Suite 1700 Brooklyn, New York 11242 (718) 855-5684
Attorney for Plaintiff Ronemus & Vilensky 112 Madison Avenue — 2nd Floor New York, New York 10016 (212) 779-7070 Attorney for Defendants Anthony E. DeLuca, Esq. 26 Court Street -Suite 1700 Brooklyn, New York 11242 (718) 855-5684 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of the defendants Esther Feldman Trust, Esther Feldman as Trustee, Esther Feldman and Leon Feldman, filed on September 26, 2016, under motion sequence number three, for an order pursuant to CPLR 3212, granting summary judgment on liability as to the Labor Law §§ 200 and 240 (1) claims and dismissing the plaintiff's complaint. Plaintiff has opposed the motion. Notice of Motion Affirmation in Support Exhibits A-H Affirmation in Opposition Exhibit A Affirmation in Reply Exhibit A-B
By order dated November 18, 2016, the defendants motion for summary judgment was granted as to the causes of action pursuant to Labor Law §§ 200 and 241 (6). Accordingly, the decision and order will be limited to the claims pursuant to Labor Law § 240 (1).
BACKGROUND
On September 5, 2014, Roman Shchleglyuk (hereinafter Shchleglyuk) commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. On November 10, 2014, the defendants Esther Feldman Trust, Esther Feldman as Trustee, Esther Feldman and Leon Feldman joined issue by jointly filing an answer. On December 19, 2014, Esther Feldman Trust, Esther Feldman as Trustee and Leon Feldman interposed a joint answer.
The complaint contains thirty-two allegations of fact in support of four causes of action. The first cause of action alleges general negligence. The second cause of action alleges negligence under Labor Law § 200. The third cause of action alleges violations of Labor Law § 240. The fourth cause of action alleges violations of Labor Law § 241 (6).
The complaint, bill of particulars and deposition testimony allege the following salient facts: plaintiff was employed as a laborer by Rel Corporation. Rel Corporation was owned by the defendant Leon Feldman. Ana, the manager from Rel Corporation informed plaintiff that he would be picked up by a co-worker and brought to the job site. On September 27, 2011, he was picked up by his co-worker Mechislav Trushkovsky (hereinafter Trushkovsky) and brought to 23 Midwood Drive, Plainview, New York (hereinafter the subject premises). Leon Feldman and Esther Feldman reside in the subject premises. Plaintiff was told to wash the windows located on the roof, adjust one of the sky light windows because it was not properly working and fix a leaking pipe. The accident occurred when he was ascending the ladder with a bucket in one arm when the ladder fell causing plaintiff to fall and sustain personal injuries.
LAW APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]). Labor Law § 240 (1)
Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]). To recover, the plaintiff must have been engaged in a covered activity "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240 (1) ; see Panek v County of Albany, 99 NY2d 452, 457 [2003]) and must have suffered an injury as "the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). To impose liability pursuant to Labor Law § 240 (1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff's injuries (Corchado v 5030 Broadway Properties, LLC, 103 AD3d 768 [2nd Dept 2013]). Where there is no statutory violation, or where the plaintiff is the sole proximate cause of his or her own injuries, there can be no recovery under Labor Law § 240 (1) ( Id.).
In addition to owners and general contractors, their agents may be held responsible under Labor Law § 240 (1). To hold a party liable as an agent of a general contractor, for violations of the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for workers engaged in construction, demolition, and excavation work, there must be a showing that it had the authority to supervise and control the work. The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right (Bakhtadze v Riddle, 56 AD3d 589 [2nd Dept 2008]).
Not all elevation related accidents fall within the ambit of the statutes protections. Relevant to the instant action, an activity cannot be considered cleaning under the statute if it: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project (Torres v St. Francis Coll., 129 AD3d 1058, 1060 [2nd Dept 2015] citing Soto v J. Crew Inc., 21 NY3d at 568 [2013]; Collymore v 1895 WWA, LLC, 113 AD3d 720 [2nd Dept 2014]). The factors are to be considered as a whole, and the presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other (Torres, 129 AD3d 1058 [2nd Dept 2015] citing Pena v Varet & Bogart, LLC, 119 AD3d 916, 917 [2nd Dept 2014] quoting Soto v J. Crew Inc., 21 NY3d at 568 569 [2013]).
In the instant action, the defendants submit the testimony of the plaintiff and of Esther Feldman in support of their motion seeking summary judgment. The defendants assert that Shchleglyuk's testimony that he was to clean the windows located on the roof supports a finding that his work was not the type meant to be protected by Labor Law § 240 (1). Defendants further assert that Esther Feldman's testimony that she did not supervise, control, direct or even know of the scope of plaintiff's work entitle the defendants to summary judgment.
In the instant matter it is undisputed that plaintiff was employed as a laborer for Leon Feldman and was directed by his supervisor to appear at the subject premises to work for the day. Plaintiff's testimony clearly establishes that he was at the subject premises to perform any tasks that he was directed to by his supervisors. He had no independent knowledge of what tasks where to be performed.
However, plaintiff's knowledge of the scope of the work is not crucial to determining whether the work falls under the ambit of Labor Law § 240 (1). Rather the supervisors' knowledge of the scope of work is determinative of what work was to be performed. In support of the motion the defendants have submitted Esther Feldman's testimony in which she both claims to have no knowledge of the scope of work to be done and then limits the work to only cleaning the windows. Esther Feldman's testimony contains conflicting accounts of the scope of work to be performed. Even crediting her testimony summary judgment cannot be granted. The defendants have not established that the work that plaintiff was to perform at the subject premises is not work contemplated by the statute. In light of the failure of the defendants' to meet their prima facie burden the motion is denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Homeowners exemption
The movants also assert that the complaint should be dismissed because the homeowners exemption contained in Labor Law § 240 (1) applies to the instant action. In order to satisfy the prima facie burden on the basis of the "homeowners' exemption," the defendant is required to demonstrate not only that his house was a single-or two-family residence, but also, that he did not "direct or control" the work being performed (see Arama v Fruchter, 39 AD3d 678, 679 [2nd Dept 2007]; Miller v Shah, 3 AD3d 521, 522 [2nd Dept 2004]; Saverino v Reiter, 1 AD3d 427 [2d Dept 2003]; Stejskal v Simons, 309 AD2d 853, 854 [2nd Dept 2003], affd 3 NY3d 628 [2004]). The fact that title to an otherwise qualifying one- or two-family dwelling is held by a corporation rather than an individual homeowner does not, in and of itself, preclude application of the exemption (Assevero v Hamilton & Church Properties, LLC, 131 AD3d 553, 556 (2nd Dept 2015) citing Parise v Green Chimneys Children's Services, Inc., 106 AD3d 970, 971 [2nd Dept2013]; Castellanos v United Cerebral Palsy Assn. of Greater Suffolk, Inc., 77 AD3d 879, 880 [2nd Dept 2010]; Uddin v Three Bros. Const. Corp., 33 AD3d 691, 692 [2nd Dept 2006]; Baez v Cow Bay Const., 303 AD2d 528, 529 [2nd Dept 2003]).
The statutory phrase "direct or control" is construed strictly and refers to situations where the owner supervises the method and manner of the work (see Boccio v Bozik, 41 AD3d 754, 755 [2nd Dept 2007]; Arama v Fruchter, 39 AD3d 678 at 679 [2nd Dept 2007]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 849 [2nd Dept 2006]; Siconolfi v Crisci, 11 AD3d 600, 601 [2nd Dept 2004]; Miller v Shah, 3 AD3d 521 at 522 [2nd Dept 2004]).
It is well established that in order for the homeowners exemption not to apply a defendant must have engaged in some activity above general supervision. A homeowner that monitors the progress of the work by approving the aesthetics of the work and oversees the work's general quality reflects typical homeowner interest in the ongoing progress of the work and does not constitute the kind of direction or control necessary to overcome the homeowner's exemption from liability (Chowdhury v Rodriguez, 57 AD3d 121, 127 [2nd Dept 2008]). Furthermore, loaning equipment to a worker, such as, a ladder is not equivalent to directing or controlling the work and should not serve as a predicate for liability outside of the homeowner's exemption (see Stone v Altarac, 305 AD2d 849, 850 [3rd Dept 2003]; Miller v Trudeau, 270 AD2d 683 [3rd Dept 2000]).
However, it is also noted that the homeowner's exemption was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability. If the plaintiff is employed by the defendant in a laborer capacity but is injured at the defendant's home then the issue of control is complicated and may be a triable issue of fact (Pavon v Koral, 113 AD3d 830, 831 [2d Dept 2014][internal citations omitted]).
In the instant matter the movants assert that the defendants are entitled to the homeowners exemption. In support of the motion the movants submit what appears to be a print out of a Nassau County property record. The document contains a picture of a property and bears the address of the subject premises. There is no sworn allegation of fact in the moving papers asserting that the property contained on that document is the subject premises.
The movants also annex Esther Feldman's deposition testimony in support of this branch of the motion. Esther Feldman testified that she and her husband are the owners of the property. However, during the deposition her counsel stated that the property is owned by the Esther Feldman Trust. The movants do not submit a deed to the property. The movants have failed to establish who owns the property.
Accordingly, the Court need not reach the issue of whether there was supervision and control. The homeowners exemption only applies to the owners of the property and without establishing ownership the Court need not continue the analysis. In light of the failure of the defendants' to meet their prima facie burden the motion is denied without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
CONCLUSION
The motion of the defendants Esther Feldman Trust, Esther Feldman as Trustee, Esther Feldman and Leon Feldman for an order pursuant to CPLR 3212, granting summary judgment on liability as to the Labor Law § 240 (1) claims and dismissing the plaintiff's complaint is denied.
The foregoing constitutes the decision and order of this Court. Enter: J.S.C.