Joseph Bennett,, Appellant, et al., Plaintiff,v.Michael Hucke, et al., Defendants, Alan Kirk, et al., Respondents.BriefN.Y.August 23, 2016 1 GATHMAN & BENNETT LLP 191 New York Avenue, 2nd Floor Huntington, New York 11743 (631) 423-7777 Facsimile (631) 423-7784 Attorneys _ J. Edward Gathman Esq. egathman@gathbenlaw.com John C. Bennett, Esq. jbennett@gathbenlaw.com June 8, 2016 New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Permissive Appeal - Bennett v. Hucke, et al. Court of Appeals APL # 2016-00093 Appellate Division Case No.’s 2013-06108; 2014-02911 Appellant Submission pursuant to Court Rule §500.11 Dear Justices: The undersigned represents the Plaintiff-Appellant in the above-captioned matter and submits this Letter Submission pursuant to New York Rules of Court §500.11. It is respectfully submitted that both at the Trial Court level and in the Appellate Division Second Department that the within Decision represents a substantial departure from accepted precedent in this Honorable Court, from other Appellate Divisions and from Civil Practice Law and Rules. Preliminary Position of the Appellants As will be addressed in greater detail herein, neither the Trial Court nor the Appellate Division Second Department, in initially granting and subsequently affirming the grant of Summary Judgment as to the Defendants Kirk individually and Alan H. Kirk, Inc., granted any inference whatsoever in favor of the non-moving party. Further, the initial granting of Summary Judgment herein and subsequent affirmance by the Appellate Division Second Department was in a matter in which the Defendant-Respondent Kirk failed to submit all of the pleadings. Specifically, the Defendant-Respondents failed to submit their Answer to the Plaintiff’s Complaint. Additionally, 2 as will be addressed in greater detail, the Trial Court below issued contradictory decisions of which the Plaintiff received no beneficial interpretation whatsoever. Both the Trial Court and the Appellate Court ignored factual questions in the Record which warranted the denial of the Summary Judgment Motion by Defendant-Respondent Kirk. The Trial Court did not properly consider evidence submitted as part of the Motion to Renew which was denied by the Court in their Order of January 14, 2014. The Court has jurisdiction over this matter based on party finality. Party finality is present herein as the Order Appealed from fully disposed of all claims including cross claims as to the Defendants Alan Kirk and Alan H. Kirk Inc. Factual Background The Hucke job was a residential construction job conducted at the home of the Hucke’s. Plaintiff- Appellant argues that Alan Kirk individually and Alan Kirk, Inc. was the general contractor on site. The company A&LP Construction, owned by Mr. Percoco provided framing services onsite. It is undisputed that there were no safety devices in use on the job site (Percoco Deposition Record Pages 946-947). Plaintiff’s Expert Affidavit from Peter Pomerance, Professional Engineer, is not in any manner refuted or even addressed (Record Pages 1609 to 1614). Pomeranz addresses in detail the various violations of Sections 240, 241 Industry Standards on the New York State Board of Standards and Appeals. The project herein was a $700,000.00 residential construction project wherein the Kirk Defendants were hired by an oral agreement with the Hucke homeowners and were paid ten percent (10%) of the project fee, specifically of $70,000.00 (Record Pages 616 and 629). In moving for Summary Judgment, the Kirk Defendants submitted an Affidavit and contended that they were never a general contractor on this job, or any job, and that Alan Kirk had no construction experience whatsoever and that they never supervised a construction project (Record Pages 810-815). In essence, the Kirk Defendants allege there was not a General Contractor at all on a job costing $700,000.00. The Plaintiff-Appellant herein is unable to testify in any manner due to the extensive brain damage that he sustained in a fall from the elevated work surface. As has previously been found by the Honorable Melvin Tannenbaum, the Plaintiff was an employee of Bennett Building Corp. on the date of accident. Alan Percoco, the President of A&LP Construction, has testified that his company and Bennett Building Corp. formed a joint venture to perform certain framing work at the premises (Record Pages 884 to 885). The architect on this project was Alfred Sutton who drew the plans for the house and testified in detail as to his prior work experience with Alan Kirk (Record Page 58, 1046 to 1047). The Kirk Defendants produced no paper discovery below. Kirk, Percoco and Sutton had previously worked together on a residential project owned by Mr. Kern (Record 843-844). 3 POINT I RELATIVE TO A SUMMARY JUDGMENT MOTION, THE COURTS ROLE IS ISSUE FINDING NOT ISSUE DETERMINATION AND THE FACTS MUST BE VIEWED IN THE LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY AND EVERY INFERENCE DRAWN IN PLAINTIFF’S FAVOR This Court has long held that relative to a Summary Judgment Motion, the facts must be viewed in the light most favorable to the Plaintiff and every available inference must be drawn in the Plaintiff’s favor. See, Ferrante v. American Lung Association, 90 NY2nd 623, 665 NYS2nd 25 (Court of Appeals 1997); De Lourdes Torres v. City of New York, 267 NY3rd 742, 27 NYS3rd 468 (Court of Appeals, 2016); see also, Alvarez v. Prospect Hospital, 68 NY2nd 320, 508 NYS2nd 923 (Court of Appeals, 1986). In Ferrante, supra, as has been the result in many cases when the Trial Court or the Appellate Division has granted Summary Judgment and the Plaintiff has not been afforded the benefit of available inferences, this Court has shown no hesitancy in reversing those Decisions. Under the Summary Judgment standard, even if the jury at trial could, or likely would, decline to draw inferences favorable to the Plaintiff, the Court, on Summary Judgment Motions, must indulge all available inferences in favor of the non-moving party. The Courts have long noted that at trial, a jury remains free to infer whatever conclusions may be appropriate under the circumstances, but it is not for the Court to do in the context of a Summary Judgment Motion. The Court has long noted that where there is conflicting evidence from which reasonable persons may draw different inferences, the question is one for the Jury. See, Stein v. City of New York, 22 Misc3rd 1124, 880 NYS2nd 876 (Supreme Court, Bronx County 2009); see also, Johnson v. Tschiember, 7 AD2nd 1029, 184 NYS2nd 787 (Appellate Division, Second Department, 1959). It has long been the rule of this Court that it is the jury, not the Court, which is to draw the inference and determine the ultimate effect of a presumption. See, Foltis v. New York, 287 NY 108, 38 N.E.2nd 455 (Court of Appeals, 1941). As will become apparent herein, both the Trial Court and the Appellate Court, in their affirmance, clearly weighed and relied upon the credibility of Alan Kirk in his deposition testimony and in his Affidavit, despite numerous contradictory factual issues and factual questions. As this Court has repeatedly held, the Court’s function on a Summary Judgment Motion is to determine whether material factual questions exist, not resolve these issues nor rule on questions of credibility. See, Sillman v. Twentieth Century Fox Film Corp., 3 NY2nd 395, 165 NYS2nd 498 (Court of Appeals, 1957); see also, Andre v. Pomeroy, 35 NY2nd 361, 362 NYS2nd 131 (Court of Appeals, 1974); see also, Donoto v. Elrac, 18 AD3rd 696, 795 NYS2nd 348 (Appellate Division, Second 4 Department 2015); see also, Asaaf v. Ropag Cab Corp., 153 AD2nd 520, 544 NYS2nd 834 (First Department, Appellate Division 1989). The Defendant-Respondent Kirk essentially argues that neither he nor his corporation supervised any projects at the Hucke residence nor at any other previous job. It is noteworthy that the Defendant-Respondent Kirk has absolutely no written contract whatsoever with the Defendant homeowner Hucke and he has supplied no paper discovery whatsoever during the course of the litigation. Accordingly, the Trial Court, and indeed the Appellate Court, had nothing to rely on from the Kirk submission apart from his sworn testimony and his affidavit. THE LITANY OF FACTUAL ISSUES AND INFERENCES WHICH WERE NOT AFFORDED CONSIDERATION BY THE COURT The extensive nature of both inferences that were not afforded to the non-moving party and outright factual questions which should have been left to the jury to resolve, are as follows: 1. The architect on the project, Alfred Sutton, testified that he considered Alan Kirk to be the general contractor on both the Kern job and Hucke job and on other jobs (Record Page 58). The current job was another residential construction project of large scope which, it is alleged, Mr. Kirk was managing the entire job. 2. Kirk claims that he has never previously supervised a construction job. This testimony by Kirk is directly refuted by virtue of his filing of his own sworn Mechanic’s Lien on the Kern job wherein Kirk alleges that he personally supervised Kern’s residential construction project. (Record Pages 1592-1601) 3. Kirk seeks to deny any awareness of what was going on at the site on a daily basis or any awareness to site conditions. Alan Percoco, the President of A&LP Construction, however, has testified that Alan Kirk was on site on a daily basis and aware of site conditions. (Record Pages 854-855). More peculiar is the issue of the use and erection of the “H” scaffold Percoco testified that the same was previously in use on the other side of the home before the accident and was created in the same manner as the “H” scaffold used on the side of the house where Plaintiff sustained his injury (Percoco Record Page 920). Percoco did not recall who erected the scaffold or installed the planks on the scaffold (Percoco Record Pages 942-943). Percoco clearly testified that Alan Kirk was present when these scaffolds were being created (Percoco Record Page 984). Accordingly, the Trial Courts determination that Kirk had no notice of the creation of the defective scaffolding is clearly in error. Further, Percoco in a Sworn Statement to the Police, set forth “myself and five others were building some additional scaffolding” (Record Pages 132). 5 4. Kirk seeks to take the position that he provided no direction or control to any subcontractors on site. In this regard, Mr. Percoco testified that he saw Kirk providing direction to other subcontractors on site as to the manner in which work should have been performed. The Percoco testimony confirms Kirk was on site and gave direction to all trades (Record Pages 860- 861). 5. Mr. Percoco testified that when OSHA personnel visited the site after Plaintiff’s accident and found that workers were still working on the roof with absolutely no scaffold protection whatsoever, Percoco testified that he was asked by OSHA personnel to advise the person managing the site for the need for scaffolding. Percoco testified that he conveyed this directive to Mr. Kirk (Record Page 956). 6. Work on the roof beam on the other side of the house had been progressing for a period of time before the Plaintiff’s accident using the same defective scaffolding and no safety protection in use whatsoever. Percoco testified as to Kirk’s daily attendance on site. Clearly, Kirk had knowledge, or should have known, of the lack of any safety devices whatsoever on the site despite work involving an elevated hazard (Record Pages 854-855, 984). Percoco testified Kirk was there when this scaffold was built (Record 984). 7. Despite the fact that Mr. Kirk takes the position that he was not a General Contractor on the project, the record contains numerous checks written by Mr. or Mrs. Hucke to Alan Kirk individually referring to Mr. Kirk as either “GC” or “General Contractor” for the project. Both the Trial Court and the Appellate Court completely ignored this evidence (Record Pages 1161- 1309). 8. Kirk testified as to his utter lack of any construction experience whatsoever. This testimony is clearly refuted by the highly detailed testimony of the architect on the project, Mr. Alfred Sutton, who was also the architect on the Kern project wherein he had testified to Mr. Kirk’s extensive construction background (Records Page 1087). 9. Further, Mr. Sutton had submitted an Affidavit in litigation captioned as Rankin v. Kern for injuries that had occurred on that job site and set forth under oath that Mr. and Mrs. Kern retained his firm as architect to prepare construction plans for the home and Alan H. Kirk, Inc. as the General Contractor (Record Pages 644-647). 10. Cindy Hucke testified it was her expectation that Kirk would make sure work was progressing properly (Record Page 718). These specific issues, it is submitted, not only create inferences but outright factual contradictions of the claims of Alan Kirk as to his role at the Hucke premises. Both the factual questions and any permissible inferences were not considered or referenced in the decisions of the Courts below. 6 POINT II THE DETERMINATION OF THE COURTS BELOW THAT THE KIRK DEFENDANTS DID NOT CREATE OR HAVE ACTUAL CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED THE INJURY TO THE PLAINTIFF IS NOT SUPPORTED BY THE RECORD The Trial Court, in its Order and the Appellate Court by affirmance, essentially determined that the Kirk Defendants did not create or have actual constructive notice of the condition which allegedly caused the injury of the injured plaintiff, and further that Alan Kirk or Alan Kirk, Inc. was found to be a construction manager who essentially had no responsibilities for site supervision (Record Pages 9-15). The unrefuted testimony of Mr. Percoco, the Principal of A&LP Construction confirms that as the framing contractor, they were erecting a ridge beam microlam at the premises on one side of the house and that on the other side of the house they had previously built the same scaffold to install the ridge beam (Record Page 903). Percoco further testified that the scaffold being utilized and the roof ridge previously erected on the other side of the house was utilizing the same method of construction at the time of the accident (Record Page 914). Further, Percoco clearly testified that Alan Kirk was present when the scaffolding was being created (Record Page 984). Accordingly, Alan Kirk individually and Alan Kirk, Inc., despite the determination of the Court below, clearly had both actual and constructive notice of the condition which allegedly caused the injury to the Plaintiff. This in and of itself is a clear factual question which should have warranted the denial of Summary Judgment. Additionally, the defects in the scaffold creation and the failure to anchor planks on the scaffold were set forth in detail as safety violations which were a proximate cause of this injury in the affidavit of Mr. Pomerance, the only expert who submitted an Affidavit herein (Record Pages 1609-1614). The Record also contains the Trial Courts prior determination in the matter of the Summary Judgment Motion made on behalf of the homeowners wherein the homeowners submitted evidence in admissible form that they relied upon the Kirk defendant(s) to supervise the work of the subcontractors (Record Pages 187-194). Further, the homeowner Cindy Hucke, during the course of her deposition, testified that she relied upon Alan Kirk to make sure that work was progressing properly (Record Page 718). Additionally, when questioned by OSHA personnel concerning the need to advise whomever was running the job and the need for scaffolding, it was Mr. Kirk that Mr. Percoco chose to advise of this fact. The Architect, Alfred Sutton, had testified as to the need on a complicated project to 7 hire a qualified General Contractor (Record Pages 1058-1059) and that he viewed Kirk as the general contractor on this site. The Record is set forth in the preceding section is replete with checks issued to Alan Kirk individually, not his corporation, wherein either the words “General Contractor” or “GC” is referenced in the memo portion of the check (Record Pages 1161-1309). It is submitted that the Decision from the Appellate Division, Second Department is also in conflict with other Second Department precedent on this point. More particularly, in the matter Guanopatin v. Flushing Acquisition Holdings, LLC, 127 AD3rd 812, 7 NYS3rd 322 (Appellate Division, Second Department 2015), the Court noted that a parties status as a contractor under Labor Law §240(1) is dependent upon whether it had the authority to exercise control over the work, not whether it actually exercised that right. The Court noted that a party who has the authority to enforce safety standards and choose responsible subcontractors is considered a contractor under Labor Law §240. Herein Percoco testified that Kirk advised him he had gotten the Hucke job (Record Pages 841-843). Clearly herein, Kirk had the authority to exercise control over the work, even though by Mr. Kirk’s own contention, he apparently exercised none. An analogous case from the Second Department is also in conflict with the holding in the within matter in Myles v. Craig Claxton, 115AD3rd 654, 981 NYS2nd 447 (Appellate Division, Second Department 2014). In Myles, supra, the homeowner had contracted with the Defendant, Vintage Projects, Inc., for Vintage to act as a construction manager of the project. As part of the record in the Myles holding, Vintage’s contract with Claxton provided that “Vintage would not have control over, or charge of, and shall not be responsible for construction means, methods, techniques, sequences or procedures of the contractors on the projects”. See also, Walls v. Turner Construction, 4 NY3rd 861, 798 NYS2nd 351 (Court of Appeals, 2005). Here there is no such Contract and indeed no such testimony apart from Kirk’s Affidavit. The Courts have long since noted that the core inquiry is whether the Defendant had the authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct unsafe conditions. See, Delahaye v. St. Ann’s School, 40AD3rd 679, 836 NYS2nd 233 (2007). Herein, it is clear that at the very least, Kirk had the authority to control and supervise on site. In point of fact, this was the very determination made by the Trial Court after ruling on the homeowners Motion for Summary Judgment under the Homeowners Exemption Record Pages 187-194). In the Decision of April 1, 2013 (Record 187-194). The expectation of Mrs. Hucke that Kirk would make sure work was being progressing properly (Record Page 718). Despite Kirk’s protestations to the contrary that he never supervised a construction job site previously, Kirk’s assertion on the Kern job, which both the architect Sutton and Percoco participated on a residential project shortly before the Hucke job, are proven untrue by Kirk’s sworn Affidavit in support of his Mechanic’s Lien to the effect of job site supervision. Whether or not a jury ultimately determines Kirk to have been the General Contractor or a Construction Manager with supervisory authority is not the issue at this juncture. The issue at this juncture is, respectfully, that it should have been the jury that makes that determination and 8 not the Court. To this end, even if the duties, which are non-delegable under §§240 and 241 of the Labor Law are delegated, then that third party obtains concomitant authority to supervise and control the work and becomes a statutory agent of the owner or general contractor. While that is not argued herein, even if there were a delegation argument made, it does not relieve Kirk of his job site responsibilities (see, Russin v. Lewis & Picciano & Son, 54 NY2nd 311, 445 NYS2nd 127 [Court of Appeals, 1981]). POINT III THE KIRK DEFENDANTS FAILED TO INCLUDE THE PLEADINGS, INCLUDING THEIR OWN ANSWER, IN CONTRAVENTION OF THE RULES OF THE CPLR AND CONTROLLING CASE LAW OF THIS COURT AND ALL APPELLATE DIVISIONS The Appellate Court herein respectfully undermined the precedent of CPLR §3212(b) and its own precedent in the matter of Zellner v. Tarnell, 54 AD2nd 329, 861 NYS2nd 598 (Second Department, Appellate Division 2008) when affirming the decision of the Trial Court with granting of Summary Judgment to the moving party who did not attach all of the pleadings, and which pleadings were not part of any record, namely their Answer. Pursuant to the prior Order of the Honorable Melvin Tannenbaum, the Kirk Defendants were permitted to interpose an Answer to Plaintiff’s Summons and Complaint filed in 2007 (Record Pages 195-208). It is, however, conceded, that the Answer was never submitted before the Trial Court or the Appellate Court relative to the Summary Judgment Motion. CPLR §3212(b) requires that a complete set of the pleadings be attached to a Summary Judgment Motion and that the failure to append a complete set of pleadings (Motion for Summary Judgment) requires denial of the motion. See, Zellner v. Tarnell, supra. It is noted this is not discretionary on the part of the Court, the Motion must be denied. Further, the Second Department in this matter did not follow its own precedent which was fully briefed during the course of the Appeal. In that regard, the Second Department has previously noted the failure to include all pleadings is a fatal flaw to the Motion. See, Wieder v. Heller, 24 AD3rd 433, 805 NYS2nd 130 (Second Department, 2005). Further, the Appellate Division herein has not followed their own precedent as set forth in Hamilton v. City of New York, 262 Ad2nd 283, 691 NYS2nd 108 (Appellate Division, Second Department 2009). Therein, the Appellate Division, Second Department further noted that in the event of a failure to include pleadings, there is no prima facie entitlement to Summary Judgment as a matter of law and the Court does not need to reach the question of sufficiency of the evidence presented in opposition to the Motion as the Court erroneously did herein. The holding affirming herein is one that creates entirely new precedent in granting Summary Judgment to a party who has failed to enclose the pleadings on their Summary Judgment Motion. 9 POINT IV THE APPELLATE DIVISION SECOND DEPARTMENT, BY VIRTUE OF THIS HOLDING, IS NOW IN CONFLICT WITH THE THIRD DEPARTMENT ON THE ISSUE OF THE EFFECT TO BE GIVEN CONTRADICTORY COURT DECISIONS It is respectfully submitted that there is now a dispute between the Third Department and the Second Department on this issue. In considering the matter of Serafini v. Stento, 262 AD 590, 31 NYS2nd 20 (Appellate Division, Third Department 1941) wherein the Appellate Division, Third Department held that the Appellant is entitled to have the Court consider the most favorable of two inconsistent findings. In this regard, the Trial Court, in its Decision of April 1, 2013, granted the Summary Judgment Motion to the homeowners Michael and Cindy Hucke, and dismissed all claims asserted against them under the Homeowners Exemption to Labor Law §240 and specifically made a finding that “the Hucke’s submitted evidence that they relied upon the Kirk Defendants to supervise the work of subcontractors” (Record Page 191). Subsequently, in a separate Decision issued on April 5, 2013, some four days later, the same Trial Court dismissed all claims asserted against Alan Kirk individually and Alan H. Kirk, Inc. and determined that “the Kirk Defendants submitted evidence that they supervised no person on the job site” (Record Pages 9-15). It is respectfully submitted that these are inherently contradictory conclusions reached by the Court and that the Plaintiff should have been granted a reading as to the more favorable decision issued in the Hucke Summary Judgment Motion. No party has filed an Appeal of the Order of April 1, 2013 (Record Pages 187-194) concerning the Trial Court’s finding of supervision by the Kirk Defendants, and accordingly, that finding is now law of the case. The lower Court is obligated by the holding of this Court to follow the determinations it previously made in the April 1, 2013 Decision, Martin v. Cohoes, 37 NY2d NY2d 162, 371 NYS2d 687 (Ct. Appeals 1975). It is also respectfully submitted that this determination by the Court reached in the Order of April 1, 2013 formed a basis for the Plaintiff’s Motion seeking Renewal and Reargument of the Court’s prior Decision relative to the Summary Judgment Motion made by the Kirk Defendants which was subsequently denied by the Trial Court in the Decision of January 14, 2014. It is further respectfully submitted that this is evidence that could not have been submitted in an earlier point in time as it did not exist at the time the Kirk Summary Judgment Motion was opposed by virtue of the fact that the determination had not yet been made by the Court. 10 Further, the homeowner, Cindy Hucke herein, testified that it was her understanding that Kirk would supervise the work of the subcontractors to make sure that the work was progressing properly (Record Page 718). It is respectfully submitted that the Trial Court also ignored the testimony of Mr. Percoco in this regard that relative to the Kern project on which Kirk, Sutton and Percoco all worked, that Mr. Kirk had Percoco perform corrective work on framing that another contractor had improperly installed and that this correction was done at Kirk’s direction (Record Pages 848-849). To this end, Percoco testified that he would go to Kirk and say “Alan, this is messed up. How do you want us to address it”? and in response, Alan Kirk would give Percoco the go ahead to perform corrective work (Record Pages 850, 898). Architect Alfred Sutton testified in detail as to Kirk’s service as a General Contractor on a variety of jobs that Sutton had worked with him on (Record Page 1069). To this end, Percoco testified that he personally observed Kirk providing direction to various other subcontractors on site. Most tellingly, when Percoco was approached by OSHA inspectors to advise the person managing the site for the need for safety for continued roofing operations, Percoco conveyed this directive to Mr. Kirk as requested by OSHA personnel (Record Pages 956). Percoco further testified that he observed Kirk giving other trades direction and that he observed him giving direction to masons and various trades and that he would meet with different subs and he observed him interact with electricians and a variety of trades on site (Records Page 860). To the extent that Kirk is attempting to argue that all of the subcontractor trades were self- supervising, this is clearly reputed by the testimony of Mr. Percoco, the Principal of A&LP Construction, which was handling the framing work at the time of the Plaintiff’s accident. OSHA had issued a citation at one point in time for an open floor area on the job site and Percoco testified that he had “come to find out that he wasn’t responsible for it because there were other parties involved in the job site that were managing the positions other than myself, whether the homeowner or Alan Kirk” (Record Page 953-954). This testimony is further enforced when Percoco was questioned by OSHA personnel relative to roofers working on the job. It should be noted herein OSHA did not determine that no citations should be issued regarding the defects in scaffolding, but rather their field person was not issuing any (Record Page 109). To this end, there is a significant disparity now between the First Department and Second Department relative to the affirmance of the granting of Summary Judgment to the Kirk Defendants. In the matter of Kosovrasti v. Epic, 96 AD3rd 695, 948 NYS2nd 260 (Appellate Division, First Department 2012), therein the Court noted that the mere inclusion of the words General Contractor alone on a single building permit was not sufficient to hold a defendant in. However, the testimony contained within the record on Kosovrasti was that the defendant was responsible for obtaining 11 the necessary permits and was to “oversee the coordination of the involved trades on the project” which the First Department determined created a triable issue of fact as to whether or not that defendant was retained to oversee the project, a factor that the Court determined that the Moving Defendant had not demonstrated a clear entitlement to Summary Judgment involving the Labor Law claims. Herein, the testimony establishing both inferential testimony and absolute questions of fact is far broader than contained in the record on Kosovrasti. In this regard, there are numerous checks written to Alan Kirk individually for either “GC Services” or “General Contractor”. The homeowner, Cindy Hucke, has testified to her expectation that Kirk would supervise subcontractors to make sure that work was progressing properly. The Trial Court below determined that the homeowners had submitted evidence that they relied upon Kirk to supervise the work of subcontractors. Mr. Percoco, who was conducting framing operations, testified that he observed Kirk giving direction to other subcontractors on site. He also testified that he observed Kirk, despite Kirk’s denials, to be giving corrective instructions to subcontractors on the Kern job. The record also contains Kirk’s sworn Affidavit as part of his Mechanic’s Lien application to the effect that he supervised construction on the Kern job which clearly refutes Kirk’s contention that he never supervised a construction project. CONCLUSION For all of the foregoing reasons it is respectfully submitted the Decision should be reversed in its entirety and the matter remitted to the Trial Court. Respectfully submitted, ________________________ James Edward Gathman Jr., Esq. JEG:pc