Opinion
46334/01.
Decided July 12, 2005.
In this negligence case several key facts are undisputed. First, a construction accident occurred at about 1:30 P.M. on September 13, 2000, at a single family home, 117-48 125th Street, Ozone Park, New York. Second, plaintiff and defendant are brother and sister. Third, the premises are owned by defendant and her father-in-law. Despite two owners, only Ms. Deopaul was named as a defendant. Defendant moves, pursuant to CPLR 3212, for summary judgment and dismissal of plaintiff's complaint. Plaintiff opposes defendant's motion for summary judgment and dismissal, and cross-moves, pursuant to CPLR 3025 (b), to amend the complaint and bill of particulars to add violations of Labor Law 240 and 241. Both defendant's motion and plaintiff's cross-motion are denied.
Background of case
At the time of the accident, according to the complaint [exhibit A of motion], verified bill of particulars [exhibit C of motion] and plaintiff's examination before trial [exhibit E of motion], plaintiff was standing on a makeshift scaffold he had built [plaintiff's EBT, p. 31]. The scaffold broke and plaintiff suffered various fractures after falling to the ground [exhibit C, para. 9 and exhibit E, p. 45].
Plaintiff, in his complaint, claims negligence by defendant, with defendant's failure to provide plaintiff with a safe place to work "under his said contract of hiring" and failing to notify him of dangers and perils at the work site [para.10 of complaint]. Further, plaintiff alleges that "scaffolding furnished and provided by the Defendant gave way [para. 11 of complaint]. Nowhere in the complaint does plaintiff claim any violations of Labor Law 240, the "scaffold law," or Labor Law 241, dealing with safety at construction sites.
Defendant was renovating her one family house and adding a second floor [defendant's EBT, exhibit D of motion, p. 6]. Defendant, at p. 6 of her EBT, denied hiring a contractor, and testified that the work was to be performed by her husband, her two brothers (including plaintiff) and several friends [defendant's EBT, pp. 6-7]. She testified that plaintiff, her brother, directed the work [defendant's EBT, pp. 12 and 22]. She also testified that her brother and his friends were not paid for their work [defendant's EBT, pp. 24-25].
Plaintiff admitted at p. 15 of his EBT that defendant's house was a single family house
and that he didn't have a contract with his sister for the work at her house. Further, plaintiff claimed he was supervising the job, after talking each day with defendant's husband, his brother-in-law [plaintiff's EBT, pp. 16-17]. Plaintiff admitted, at p. 56 of his EBT, that he was never paid for his work at the accident site.
Defendant's motion for summary judgment
Defendant's motion for summary judgment suffers from a fatal flaw. In the instant case, the note of issue was filed on August 17, 2004 and defendant's motion for summary judgment was filed 122 days later on December 17, 2004. CPLR 3212 (a) permits the filing of a summary judgment motion in the 30 to 120-day period after the note of issue is filed, "if no such date is set by the court," and the 120-day time limit cannot be extended "except with leave of [the] court on good cause shown." Kings County Supreme Court Civil Term has shortened the CPLR 3212 (a) clock in Rule 13 of its Uniform Civil Term Rules, providing that "no motion for summary judgment may be made more than 60 days after filing a Note of Issue . . . except with leave of the Court on good cause shown. See, CPLR 3212 (a)."
Defendant's counsel asserts, in his reply affirmation, as an excuse for his late filing a variation on the "law office failure" theme. He claims that he made an erroneous diary entry for the summary judgment deadline. Further, in para. 4 of his reply affirmation, he requests "that the Court exercise its discretion and entertain this motion on the merits . . ."
The Court cannot entertain a late summary judgment motion only on its merits. Defense counsel needs to be reminded of Brill v. City of New York, 2 NY3d 648 (2004), and its progeny. In Brill, defendant City of New York filed a summary judgment motion almost one year after the note of issue was filed, without any reason for the delay and without leave of the court. Despite the City's meritorious claim, the Court of Appeals reversed the Kings County Supreme Court's holding for the City, and the Appellate Division, Second Department's affirming opinion. The Court instructed, at 652, that:
"good cause" in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute — only the movant can show good cause — as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be "good cause." Brill came upon the heels of Kihl v. Pfeffer, 94 NY2d 118 (1999), in which the Court upheld the dismissal of a complaint for continued failure of a plaintiff to respond to interrogatories. The Court held, at 123, that, "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity."
In Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725 (2004), the Court was faced with a summary judgment motion granted for plaintiff more than 120 days after the filing of a note of issue. No excuse was given for the lateness and plaintiff only argued that she had a meritorious claim. The Court reversed, emphasizing its Brill holding, at 726-727, that:
As we made clear in Brill, and underscore here, statutory time frames — like court-ordered time frames ( see Kihl v. Pfeffer, 94 NY2d 118 [1999] — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored.
In First Union Auto Finance, Inc. v. Donat, 16 AD3d 372 (March 7, 2005) the Appellate Division, Second Department had to deal with Brill, Miceli and Kings County Supreme Court's Uniform Civil Trial Rule 13. The Court strictly construed the Kings County Supreme Court Uniform Civil Trial Rule 13, holding, at 597, "the merits of the motion [for summary judgment more than 60 days post note of issue] should not have been considered unless good cause was shown for the delay." Further, at 597, citing both Brill and Miceli, the Court held, "[s]ince no good cause for the delay was shown, the Supreme Court erred in considering the motion and cross motion on the merits . . ."
Recent Second Department decisions continue to hold movant's to the CPLR 3212 (a) time limits, or shorter periods if set by the courts. Just as in the instant case, in Breiding v. Giladi, 15 AD3d 435 (February 14, 2005), defendant movant claimed "law office failure" as good cause for delay. The Court held:
the defendants' perfunctory claims of unspecified clerical inadvertence and reassignment of counsel were insufficient to constitute good cause for the delay ( see Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v. City of New York, supra; . . .
In Dettman v. Page, 18 AD3d 422 (May 2, 2005), citing Brill, the Court held that there must be a showing of a satisfactory explanation for delay in filing a CPLR 3212 (a) motion. "In the absence of such a showing, a late summary judgment motion may not be considered, even if it appears to have merit and the delay has not prejudiced the adversary . . ." See Bejarano v. City of New York, 18 AD3d 681 (May 23, 2005); Rivera v. Toruno, ___ AD3d ___, 2005 NY Slip Op 05048 (June 13, 2005).
Therefore, in the absence of a showing of good cause by defendant, despite any meritorious claims, defendant's late motion for summary judgment must be denied.
Plaintiff's cross-motion to amend pleadings
With respect to plaintiff's cross-motion to amend the pleadings, to allow claims that Labor Law 240 and 241 were violated, the Court is mindful of CPLR 3025 (b), which states that a party may amend its pleadings by leave of the court, and that "[l]eave shall be freely given upon such terms as may be just including the granting of costs and continuances." In Zabas by Zabas v. Kard, 194 AD2d 784 (2nd Dept 1993), the Court held that:
While it is true that motions for leave to amend pleadings are to be liberally granted in the absence of prejudice or surprise ( see McCaskey, Davies Assocs. v. New York City Health Hosps. Corp., 59 NY2d 755, 757; CPLR 3025[b]) it is equally true that the court should examine the merits of the proposed amendment when considering such motions ( see, Sharapanta v. Town of Islip, 82 AD2d 350, 362, affd 56 NY2d 332).
Where, as here, the proposed amendments are totally devoid of merit and are legally insufficient, leave to amend should be denied ( see, Matter of Consolidated Edision Co. [Neptune Associates], 143 AD2d 1012; Fiesel v. Nanuet Props. Corp., 125 AD2d 292).See Heller v. Provenzano, 303 AD3d 20 (1st Dept 2003); AYW Networks, Inc. v. Teleport Communications Group, Inc., 309 AD2d 724; Ruddock v. Boland Rentals, Inc., 5 AD3d 368 (2004).
In the instant case, plaintiff's EBT admissions demonstrate that his claims of Labor Law
240 and 241 violations are "totally devoid of merit and are legally insufficient." Plaintiff, at p. 15, lines 12-15 of his EBT, responded as follows to a question:
Q. Did you have a contract with your sister or anybody for the work that you would perform at this place [defendant's house]?
A. I had no contract.
At p. 55 of his EBT, plaintiff admitted that he was never paid for his work at the accident site. Plaintiff testified, as follows, at p. 56, lines 8-18:
Q. Were you providing these services for your sister and brother-in-law, were you volunteering your services to them?
A. Yeah
Q. And you had a specific agreement with your brother-in-law to be paid?
A. Not specific, we talk about it, yeah.
Q. Did you have an agreement with your sister to be paid?
A. No.
Labor Law 240 (1) exempts the owners of "one and two-family dwellings who contract for but do not direct or control the work" from providing scaffolding and similar devices for workers who are elevated "as to give proper protection to a person so employed." Labor Law 241, dealing with construction site safety for employees, also exempts the owners of "one and two-family dwellings who contract for but do not direct or control the work." It is undisputed that the construction site in question is a one family house and defendant "did not direct or control the work." See Duarte v. East Hills Construction Corp., 274 AD2d 493 (2nd Dept 2000); Duncan v. Perry, 307 AD2d (2nd Dept 2003); Curatolo v. Postiglione, 2 AD3d 480 (2003); Siconolfi v. Crisci, 11 AD3d 600 (2nd Dept 2004).
Plaintiff admitted in his EBT that didn't have a contract to perform the work and that he never had an agreement with his defendant sister to be paid. An "employee" is defined in Labor Law 2 (5) as "a mechanic, workingman, or laborer working for another for hire." In Benamati v. McSkimming, 8 AD3d 815 (3rd Dept 2004), plaintiff, a mason, was injured after falling off an extension ladder while inspecting the chimney of a church's youth center. The Court held, at 816, that:
In our view, regardless of whether Benamati expected to be paid for any repair work he ultimately performed, the record makes plain that as of the time of the accident, he had not in fact been hired to perform any such repairs. Hence, defendants' motion for partial summary judgment was properly granted.
The Court of Appeals explained in Lombardi v. Stout, 80 NY2d 290, 296 (1992) that Labor Law 240 "is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents." In the instant case, plaintiff admits to supervising the job and constructing the scaffold from which he fell.
In the case at bar, plaintiff volunteered to help his sister with the construction. Plaintiff admits to not being paid and not having any agreement for payment for services rendered. The Court of Appeals, in Whelen v. Warwick Valley Civic and Social Club, 47 NY2d 970, 971 (1979), held that:
To come within the special class for whose benefit absolute liability is imposed upon contractors, owners and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent. A volunteer who offers his services gratuitously cannot claim the protection afforded by the "flat and unvarying duty" flowing to this special class contained in section 240. ( Yearke v. Zarcone, 57 AD2d 457, 459, mot. for lv. to app. den. 43 NY2d 643).See Abbatiello v. Lancaster Studio Associates, 3 NY3d 46 (2004); Peritore v. Don-Alban
Associates, Inc., 18 AD3d 846 (2nd Dept 2005). Further, in Alver v. Duarte, 80 AD2d 182, 183
(3rd Dept 1981), the Court explained, expanding upon the Whelen holding that volunteers are not covered by either Labor Law 240 or 241. "We need but add that had the Legislature intended to expand the class of individuals to be covered by [Labor Law] section 241 it would have done so expressly." In Lee v. Jones, 230 AD2d 435 (3rd Dept 1997), plaintiff, an acquaintance of a contractor was injured after falling from a ladder while assisting the contractor. The Court held, at 437, that plaintiff could not assert Labor Law 240 and 241 claims as a volunteer "with no agreement or reasonable expectation concerning payment."
In the instant case, there is no proof that defendant was involved in any manner, shape or form with directing or controlling the construction project. Plaintiff admitted to acting as a volunteer, assisting his sister and brother-in-law, and was actively involved in the supervision of the project. Further, he admitted to constructing the scaffold from which he ultimately fell and was injured. It is crystal clear that Labor Law 240 and 241 does not apply to this case. Therefore, in its discretion, this Court cannot permit the pleadings to be amended to assert legally insufficient violations of Labor Law 240 and 241.
Conclusion
Defendant's motion for summary judgment and dismissal of plaintiff's complaint, pursuant to CPLR 3212, is untimely and therefore denied.
Plaintiff's motion to amend the complaint and bill of particulars to plead violations of Labor Law 240 and 241 is devoid of merit, legally insufficient, and therefore denied.
This constitutes the decision and order of the court.