Opinion
Index No. 605229/2020 Mot. Seq. No. 01 - MG
03-01-2021
TEOFILO VALENCIA, LORENA RANGEL and ANDRES ALVARRACIN, Plaintiffs, v. SEAN GLINSKI, TERESA CHENG, "JOHN DOE" CONTRACTOR and "JOHN DOE" CONSTRUCTION MANAGER, Defendants.
PRONER & PRONER Attys. for Plaintiffs 60 EAST 42ND ST, STE 1503 NEW YORK, NY 10165 SHEARER PC Attys, for Defendants- GL1NCKI &CHENG 90 FOREST AVE LOCUST VALLEY, NY 11560
Unpublished Opinion
MOTION DATE 11/20/2020
SUBMIT DATE 1/14/2021
PRONER & PRONER
Attys. for Plaintiffs 60 EAST 42ND ST, STE 1503 NEW YORK, NY 10165
SHEARER PC
Attys, for Defendants- GL1NCKI &CHENG 90 FOREST AVE LOCUST VALLEY, NY 11560
PRESENT Hon. JOSEPH A. SANTORELLI Justice of the Supreme Court
SHORT FORM ORDER
HON. JOSEPH A. SANTORELLI J.S.C.
Upon the following papers numbered 1 to 34 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 8; Notice of Gross Motion and supporting papers ____Answering Affidavits and supporting papers 9 - 20; Replying Affidavits and supporting papers 21-34; Other ___(and after hearing counsel in support-and opposed to the motion) it is, ORDERED that the motion by defendants Sean Glinski and Teresa Cheng for summary judgment dismissing the complaint is granted.
This action was commenced by plaintiffs Teofila Valencia and Andres Alvarracin to recover damages for injuries they allegedly sustained on April 12, 2017, when they were performing work on the premises located at 44 Woodpink Drive, East Hampton and fell from a "makeshift scaffold" while replacing shingles. The plaintiffs allege that they were injured during the course of their employment on property owned by defendants Glinski and Cheng and assert claims against the defendants for violations of the Labor Law and for common law negligence. Plaintiff Lorena Rangel is the wife of plaintiff Valencia and asserts a derivative claim.
Defendants Glincki and Cheng now move for summary judgment in their favor, arguing that they hired the plaintiffs employer, Chris Behan Construction Company LTD, and did not control or supervise the plaintiffs' work. They argue that the plaintiffs' claims under Labor Law §§ 200, 240, and 241 are barred by the single-family homeowner exemption.
The defendants state that they purchased the house in East Hampton on May 27, 2016 and hired the plaintiffs' employer to perform renovations and construction work on the property. They further state that they originally lived at the premises full time then only lived there on weekends until they sold the premises on September 21, 2018. Prior to purchasing this residence, the defendants lived with defendant Cheng's sister in Port Washington. During the renovations the defendants stayed at the Port Washington house. The defendants claim that they did not control or supervise the work being performed by the plaintiffs. In opposition, plaintiff Teofilo Valencia claims in his affidavit that
The scaffold we would work on mounted on the rungs of two extension ladders that were extended and leaned against the front of the house. One of the ladders was new and made of metal, the other was old and made of fiberglass. It was this ladder, the one made of fiberglass, which buckled under the weight, causing the scaffold to collapse. At the time of the accident I was working as a laborer for Chris Behan Construction renovating the exterior of a house located at 44 Woodpink Road, in East Hampton, New York. We began working on the renovation in late March of 2017 and expected it to take a few months to complete. My boss, Chris Behan, told my co-worker and 1 that the owners of the house were fixing it up in order to sell it and that our job was to make the home attractive to prospective buyers. We were instructed not to get distracted with fixing up things that wouldn't immediately be visible to people coming to buy the house.
Valencia also alleges that "I never saw any sign that anyone was living at the house" and "the entire place was covered in dust and did not appear to have been cleaned or occupied for months or maybe years." The plaintiffs' allege that the defendants continued to use the Port Washington address during the entire time that they owned the house in East Hampton and their children continued to attend school in Port Washington. The plaintiffs' claim that these facts show that the defendants purchased the East Hampton house as an investment property and are therefore not entitled to claim the homeowners' exception under the Labor Law.
In reply, the defendants submitted photographs of the house and an affidavit of Chris Behan, the plaintiffs' employer, which states that
I have read Mr. Valencia's affidavit and am compelled to submit this affidavit as many of the statements he makes are completely untrue... Mr. Valencia states that at the beginning of the project, I told him that the owners were fixing up the house in order to sell it, and that I said to only make the home attractive to prospective buyers and not worry about things that could not be seen by the buyers. This is an outright lie. I take great pride in my company's work and reputation and would
never allow my employees to perform sub-standard work, as that is not how I do business. In fact, on the siding replacement part of this project, Mr. Glinski and Ms. Cheng chose white cedar shingles, which in the end is more expansive than many other types of siding as it takes many more man hours to install... If Mr. Glinski and Ms. Cheng were only interested in having the work done for short-term appearance in order to sell the house, they certainly could have cut many comers and saved a lot of time and money, but they did not do that as they planned on living in the house and enjoying it for many years... Mr. Valencia says that when he went into the house, it was covered in dust and did not appear that it had been occupied for months or years... This is also completely untrue. The house was not only clean, but was fully furnished and had active utilities, like electric and cable. Mr. Glinski and Ms. Cheng, and their twins, were living at the house on weekends while the work was being performed. I met them there on many weekends to discuss the work, issues that had arisen and other things... This was a home that was clean and occupied by Mr. Glinski and Ms. Cheng and their children, not a vacant unused house waiting to be sold.
A party moving for summary judgment 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 (Nomura Asset Capital Corp, v Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 19 N.Y.S.3d 488 [2015]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Nomura, supra', see also Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (Daliendo v Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 [2d Dept 1989]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra', see also Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,487 N.Y.S.2d 316 [1985]).
The Court in Perri v Gilbert Johnson Enters., Ltd., 14 A.D.3d 681, 683 [2nd Dept 2005], held that
To establish liability for common-law negligence or violation of Labor Law § 200, the plaintiff must establish that the defendant in issue had "authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Picciano &Son, 54 N.Y.2d 311, 317, 429N.E.2d 805, 445 N.Y.S.2d 127
[1981]; see Rizzuto v Wenger Contr. Co., 91 N.Y.2d 343, 352, 693 N.E.2d 1068, 670 N.Y.S.2d 816 [1998]; Singleton v Citnalta Constr. Corp., 291 A.D.2d 393, 394, 737 N.Y.S.2d 630 [2002]). "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law § 200" (Dos Santos v STV Engrs., Inc., 8 A.D.3d 223, 224, 778 N.Y.S.2d 48 [2004], Iv denied, 4 N.Y.3d 702, 824 N.E.2d 49, 790 N.Y.S.2d 648 [2004]). Further, the authority to review safety at the site is insufficient if there is no evidence that the defendant actually controlled the manner in which the work was performed (see Loiacono v Lehrer McGovern Bovis, 270 A.D.2d 464, 465, 704 N.Y.S.2d 658 [2000]).
In order to find liability for common-law negligence or under Labor Law 200 the owner of the premises must have "supervisory control over the injury-producing activity". (Balbuena v NY Stock Exch., Inc., 49 A.D.3d 374, 376 [1st Dept 2008]. In Perri v Gilbert Johnson Enters., Ltd., supra, the evidence "established that Gilbert visited the site '[s]ometimes once or twice a week, sometimes once every two weeks' to talk to customers and review the progress of the work... There is no evidence in the record that the owner supervised the manner in which the work was performed" and therefore summary judgment was granted dismissing the common-law negligence and Labor Law 200 violations.
Labor Law § 200 is a codification of the common-law duty imposed upon an owner, contractor, or their agent, to provide construction site workers with a safe place to work (see Conies v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168 [1993]; Haider v Davis, 35 A.D.3d 363, 827 N.Y.S.2d 179 [2d Dept 2006]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Messina v City of New York, 46 N.Y.S.3d 174, 2017 NY Slip Op 00640 [2017], quoting Ortega v Puccia, 57 A.D.3d 54, 61, 866 N.Y.S.2d 323 [2d Dept 2008]). When the methods or materials of the work are at issue, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged "had the authority to supervise or control the performance of the work" (id.). General supervisory authority at a work site is not enough; rather, a defendant must have had the responsibility for the manner in which the plaintiff s work is performed (see Messina v City of New York, supra).
Labor Law §§ 240 and 241 apply to "[a] 11 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, when constructing or demolishing buildings or doing any excavating in connection therewith." To establish entitlement to the protection of the homeowner's exemption, a defendant must demonstrate that his house was a single- or two-family residence and that he did not "direct or control" the work being performed (Ortega v Puccia, supra at 58). "The statutory phrase 'direct or control' is construed strictly and refers to situations where the owner supervises the method and manner of the work" (id. at 59).
The owner or possessor of real property also has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606 [1980]; Milewski v Washington Mut., Inc., 88 A.D.3d 853, 931 N.Y.S.2d 336 [2d Dept 2011]). Thus, "[w]here a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" (Ortega v Puccia, supra at 61; see Pacheco v Smith, 128 A.D.3d 926, 9 N.Y.S.3d 377 [2d Dept 2015]; Chowdhury v Rodriguez, 57 A.D.3d 121, 867 N.Y.S.2d 123 [2d Dept 2008]).
The defendants have established prima facie entitlement to summary judgment in that the property was a single family residence and the defendants did not control the manner in which the plaintiffs' work was performed or supervise the plaintiffs during the replacement of the shingles. Here, it is undisputed that the subject premises is a single family dwelling owned by the defendants. Further, there is nothing in the record to indicate that the defendants "directed or controlled" the work being performed by the plaintiffs. Significantly, plaintiff Valencia claims that the house was vacant and the defendants were absent during the shingle replacement process. The plaintiffs have failed to show that discovery is needed for their claim that the property was solely purchased as an investment property. Thus, the defendants are entitled to the benefit of the homeowner's exemption. Having established prima facie entitlement to summary judgment, the burden shifted to the nonmoving parties to raise a triable issue.
The plaintiffs oppose the defendants' motion, but fail to raise a triable issue. In opposition to the motion, plaintiff Valencia claims that they were told by their boss that the house was being renovated to sell and that it was unoccupied. This argument is unavailing. The defendants submitted an affidavit by the plaintiffs' boss wherein he denies all of the claims of the plaintiffs. In addition, the photos submitted by the defendants in reply show that the house was not vacant or covered in dust during the entire time that the renovations were being performed. Accordingly, the motion for summary judgment dismissing the complaint is granted.
The foregoing constitutes the decision and Order of this Court.