Joseph Bennett,, Appellant, et al., Plaintiff,v.Michael Hucke, et al., Defendants, Alan Kirk, et al., Respondents.

Brief

N.Y.August 23, 2016

Supreme Court of the State of New York Appellate Division:Second Department BRIEF FOR DEFENDANTS-RESPONDENTS ALAN KIRK and ALAN H. KIRK, INC. DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Supreme Court, Suffolk County, Index No. 10131/07 JOSEPH BENNETT, as Guardian of JAMES BENNETT, an incapacitated person, Plaintiff-Appellant, TRACEY BENNETT, Plaintiff-Respondent, -against- MICHAEL HUCKE, CINDY HUCKE, ALAN KIRK, ALAN H. KIRK, INC., ALAN KIRK CUSTOM HOMES, INC., A&LP CONSTRUCTION CO., INC., and ANDREW PERCOCO, Defendants-Respondents. TO BE ARGUED BY: TIMOTHY F. MAZZARA, ESQ. TIME REQUESTED: 12 MINUTES MAZZARA & SMALL, P.C. Attorney for Defendants-Respondents Alan Kirk and Alan H. Kirk, Inc. 1698 Roosevelt Avenue Bohemia, New York 11716 (631) 360-0600 Appellate Division Case Nos. 2013-06108 2014-02911 2 TABLE OF CONTENTS PRELIMINARY STATEMENT…………………………………………………….4 COUNTER-STATEMENT OF FACTS..………………………………………..….9 COUNTER-STATEMENT OF “JUDICIAL DETERMINATIONS OF FACT AND LAW”.………………………………………………………………………….18 POINT I - JUSTICE LASALLE’S ORDER OF APRIL 1, 2013 IS CONSISTENT WITH HIS ORDERS OF APRIL 5, 2013 AND JANUARY 14, 2014 AND HE PROPERLY DENIED PLAINTIFF’S MOTION TO RENEW AND REVERSE THE GRANT OF SUMMARY JUDGMENT TO THE KIRK DEFENDANTS …………………………………………………………..…19 POINT II - PLAINTIFF’S ARGUMENT REGARDING “LAW OF THE CASE” IS WITHOUT MERIT……………………………………………………..22 POINT III - THE COURT BELOW CORRECTLY RULED THAT THE KIRK DEFENDANTS ESTABLISHED THEIR ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW AND PLAINTIFF’S ASSERTIONS TO THE CONTRARY ARE WITHOUT MERIT……………………………………………………………………………….26 POINT IV - THE COURT BELOW CORRECTLY RULED THAT ALAN H. KIRK, INC. HAD ONLY A LIMITED SUPERVISORY ROLE WHICH DID NOT SUBJECT IT TO LIABILITY FOR THE PLAINTIFF’S ACCIDENT………………………………………………………..29 POINT V - ALAN KIRK ESTABLISHED HIS ENTITLEMENT TO SUMMARY JUDGMENT IN HIS INDIVIDUAL CAPACITY………………...35 POINT VI - APPELLANT’S CONTINUED ARGUMENT THAT HE WAS DENIED “INFERENCES” AND THAT THE COURT BELOW FAILED TO CONSIDER NUMEROUS QUESTIONS OF FACT IS WITHOUT MERIT………………………………………………………………..37 3 POINT VII - THE COURT BELOW PROPERLY CONSIDERED THE EVIDENCE SUBMITTED IN SUPPORT OF AND IN OPPOSITION TO THE MOTION TO SUMMARY JUDGMENT BY THE KIRK DEFENDANTS……………………………………………................37 POINT VIII- THE COURT BELOW CORRECTLY FOUND THAT THE INADVERTANT OMISSION OF AN ANSWER FROM THE UNDERLYING MOTION PROVIDED NO BASIS TO DENY SUMMARY JUDGMENT TO THE KIRK DEFENDANTS……………………………………………….......39 POINT IX- PLAINTIFF’S ARGUMENTS AS TO RESPONDENT ANDREW PERCOCO UNDERSCORES THAT THE KIRK DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT.…………………………..…41 CONCLUSION…………………………………………………………………....42 4 PRELIMINARY STATEMENT This brief is submitted on behalf of defendants-respondents Alan Kirk and Alan H. Kirk, Inc. in opposition to the appeal by the plaintiff-appellant, from 1). the order of the Honorable Hector D. LaSalle dated April 5, 2013 granting summary judgment to Alan Kirk and Alan H. Kirk, Inc., and 2). Judge LaSalle’s order dated January 14, 2014 which denied the plaintiff’s motion to renew and/or reargue the motion for summary judgment by defendants Alan Kirk and Alan H. Kirk, Inc. The appeal is without merit and should be denied in its entirety. The Honorable Hector D. LaSalle was the IAS Judge assigned to this case under index number 07-10131 and to the related case under index number 05-1872. Both actions are against the same defendants and both arise out of the same incident. They involve essentially identical allegations, with the exception that the 2007 action notes that Joseph Bennett had been appointed as guardian for plaintiff James Bennett and it contained an allegation that the various defendants were obligated to procure workers’ compensation coverage for James Bennett. The plaintiff’s accident occurred at the residence of defendants Michael and Cindy Hucke, a single family home in Miller Place, New York. The Huckes undertook an extension and renovation of their home and had more involvement in their project than many homeowners, as evidenced by the fact that they directly hired 5 the tradespeople involved in the project, issued payment from their own checking account for the various trades and paid for the purchase of materials. They sought the assistance of someone who could give them input by providing names of contractors that they could choose from “to help us build our house”. They entered into a verbal agreement with Alan H. Kirk, Inc. for that purpose. Alan Kirk is the president of Alan H. Kirk, Inc. The plaintiff was injured on December 19, 2004 doing framing work. It is undisputed that Michael Hucke directly entered into a written contract with A&LP Construction Co. to be the framing contractor for the project. A&LP entered into an agreement with the plaintiff to share in that work. The plaintiff owned and operated Bennett Building Inc. The accident occurred when the plaintiff and others were in the process of constructing a scaffold. The scaffold had not yet been completed. OSHA investigated the accident the same day and determined that there was no violation with regard to the scaffold or fall protection. These lawsuits followed. After completion of discovery defendants Michael Hucke and Cindy Hucke moved for summary judgment. Defendants-respondents Alan Kirk and Alan H. Kirk, Inc. separately moved for summary judgment. Defendants-respondents Andrew Percoco and A&LP Construction Co. also moved for summary judgment. The plaintiff moved for partial summary judgment against Mr. and Mrs. Hucke. The 6 plaintiff later moved for partial summary judgment against defendant-respondent A&LP on the issue of liability. The plaintiff never moved for summary judgment against Alan Kirk or Alan H. Kirk, Inc. Additionally, the plaintiff made a motion seeking to disqualify and remove defense counsel for the Huckes. The various motions resulted in three orders by the Honorable Hector D. LaSalle dated, respectively, April 1, 2013, April 5, 2013 and January 14, 2014. The order of April 1, 2013 granted summary judgment to defendants Michael Hucke and Cindy Hucke dismissing the claims against them. The plaintiffs are not appealing from that decision. However, they repeatedly make reference to it in this appeal. The April 5, 2013 order granted summary judgment to the Kirk defendants. The January 14, 2014 order denied the plaintiffs’ motion to renew and reargue the Kirks’ motion for summary judgment, denied the plaintiffs’ motion against defendants Percoco/A&LP and denied summary judgment to defendant A&LP, holding that A&LP was the prime contractor for framing. The orders of April 1, 2013, April 5, 2013 and January 14, 2014 should be read in conjunction with one another. Although plaintiff-appellant asserts that there is a contradiction in the April 1, 2013 order regarding the Huckes relying upon the Kirks to supervise, in truth there is none. The Court’s comment that the Huckes relied upon the Kirks to “supervise”, did not include any finding whatsoever that the Kirk 7 defendants directed or controlled means or methods of the work of the plaintiff or of A&LP or that Kirk had any authority over that work. The Court appropriately elected to address the Kirk defendants in his April 5, 2013 order. Justice LaSalle noted therein that the evidence established that Alan Kirk’s role was solely as the president of Alan H. Kirk Inc. and that there is no basis for liability against him individually. He noted that the supervision provided by Alan H. Kirk Inc. was general only. The evidence established that Alan H. Kirk Inc. did not have authority and control over the work which caused the plaintiff’s accident, that its supervisory role was limited to coordinating work schedules, performing administrative tasks and liaising between the homeowners and the trades people, and that Alan H. Kirk Inc. never assumed any control over the manner, details or results of the work performed by the plaintiff, A&LP or the other trades. In his order dated January 14, 2014 Judge LaSalle held that the Huckes directly hired A&LP “as the prime contractor for the framing of the residence”. When read together, the 3 decisions are consistent with one another and soundly based upon the record. Accordingly, Judge LaSalle’s order of April 5, 2013 granting summary judgment to Alan Kirk and Alan H. Kirk Inc. should be affirmed in its entirety. As well, Justice LaSalle’s order of January 14, 2014 denying the plaintiffs’ motion to renew and reargue should be affirmed. He correctly ruled that the plaintiffs’ 8 did not present any new evidence which was unavailable to them at the time of the original motions, that the motion was therefore an attempt at re-argument and that they failed to show that the court had overlooked, misunderstood or misapprehended any of the relevant facts or misapplied any principles of law. 9 COUNTER-STATEMENT OF FACTS Defendants Michael Hucke and Cindy Hucke embarked on a project to enlarge and renovate their home in Miller Place, New York. Mr. Hucke was a successful businessman. They sought to have more involvement in their project than many homeowners. They hired an expeditor, Sal Malguanara, to get a building permit for them from the Town of Brookhaven. (A. 654, 670 and 724). They retained an architect, Al Sutton, to prepare architectural plans for their project. (A.707). Their expeditor obtained the building permit for them. (A. 670-671). They then sought input from someone who could provide them with names of tradespeople “to help us build our house”. (A.710). They met with Alan Kirk of Alan H. Kirk Inc. They entered into a verbal agreement with Alan H. Kirk, Inc. There was no written agreement. (A.629). In describing their relationship, Michael Hucke testified that Kirk would provide them with the names of contractors to consider, but told them that “you’re free to get your own. And if you don’t like the estimates, you could get your own”. (A. 630). Kirk’s role with regard to supervision was to make sure that people were showing up and working before Mr. Hucke paid them. (A. 631). Mr. Hucke did not discuss with Kirk any issues regarding safety at the site. (A. 631). As to whether Kirk had the authority to terminate a contractor, Mr. Hucke testified “I don’t believe so”. (A. 631-632). When asked to describe Kirk’s role with regard to supervising the 10 trades, Mr. Hucke testified “I don’t know if it was supervisory or more about coordination of all of the different trades rather than supervising”. (A. 633). All payments made during the course of the project came from the Huckes’ bank account. (A. 634). Mr. Hucke entered into a written contract directly with A&LP Construction Co. (A. 1493). He identified his signature on the contract. (A. 643-644). Above his signature it states “you are authorized to do the work as specified in given proposal”. A&LP was to be responsible for the framing. (A. 644). In posing his questions, counsel for plaintiffs-appellants confirmed that when he made reference to Mr. Kirk he actually meant Alan H. Kirk, Inc., stating “for purposes of the record I mean the company”. (A. 645). The Huckes hired some contractors without any recommendation at all from Kirk, such as their neighbor who was in the kitchen business. (A. 660). Mr. Hucke signed the contract with A&LP. (A. 671). Thereafter, he authorized A&LP to work at the house. (A. 672). Payments for labor and materials were issued from their personal bank account. (A. 673). Kirk did not have a checkbook to pay contractors for the project. (A. 674-675). Mr. Hucke was introduced to the plaintiff-appellant by Mr. Percoco but he was not familiar with the arrangement between A&LP and Bennett. (A. 675-676). Mr. Hucke made payments to A&LP. (A. 676). It was Mr. Hucke’s understanding that each of the different contractors they hired were responsible for their own work. (A. 677). He is not aware 11 of Alan Kirk or Alan H. Kirk Inc. ever instructing the plaintiff-appellant on how to do his work, nor does he know of Kirk ever instructing Percoco how to do its work. (A. 677). He does not know of Kirk instructing any of the tradespeople on how to do their work. (A. 677-678). Defendant Cindy Hucke testified that her husband handled the payment of bills for the project. (A. 706-707). At some point during the process, they got in touch in Alan H. Kirk Inc. and met with Alan Kirk. (A. 709). They did not have a written agreement with Kirk. (A. 710). Kirk proposed to provide the Huckes with names of contractors that they could choose from for their project. (A. 710). When asked if Kirk was going to provide any other services, she testified that at that point they were already tearing down their house and that “Kirk’s function would be organizational”, testifying that “he said, who do you want? He would give us a choice and “what do you think? How do you want to go with that?” He would get bids for them and “then we would – my husband and I would talk about which one we wanted to use and which one was economical”. (A. 711). In deciding upon which trades the Huckes chose to hire, such as plumbers, electricians or framers, she stated “—my husband would say, “I think that’s a good guy”. And I would say “that’s fantastic”. (A. 717). Kirk’s “supervisory” role was to make sure that the work was progressing and to provide Mr. and Mrs. Hucke with periodic status reports as to the progress. (A. 718). 12 She and her husband hired an expeditor, Mr. Malguanara. They attended some meetings with the Town of Brookhaven along with their expeditor with regard to their project. (A. 720-721). She does not believe that Kirk attended any of their meetings with the Town. (A. 721-722). The various tradespeople that the Huckes contracted with were to direct their own work and the services which they were hired to perform. (A. 725). A&LP Construction Co. did the framing of the house. (A. 729). The framers were building the scaffold. (A. 741). She never heard Kirk tell the framers how to do their work. She never saw Kirk direct or instruct anybody at the job on how to do their work or the means or methods by which it was to be performed. (A. 741). Alan Kirk is the president of Alan H. Kirk Inc. His involvement with the Hucke project was through his corporation, Alan H. Kirk, Inc. (A. 246-247). He is the only officer of Alan H. Kirk Inc. There is no entity known as Alan Kirk Custom Homes Inc. (A. 781). He told Mr. Hucke that he would help them find contractors and try to get bids for them. (A. 786). He did not have any authority to terminate any of the trades working at the Huckes’ project. (A. 779). A&LP Construction was the framing contractor. When A&LP periodically needed a check Kirk would tell Mr. Hucke. (A. 790). Kirk did not pay A&LP, although Kirk would sometimes hand the check from Mr. Hucke to A&LP. (A. 790). After Mike [Hucke] selected the tradesman to use, 13 Kirk would check to see if they were working, so that he could report back to Mr. Hucke. (A. 793-794). His role was to help the Huckes find tradespeople and to make sure that they showed up. Kirk’s services did not include observing the work practices of the tradesman with regard to safety issues. (A. 795). He never directed any tradespeople on the manner in which they did their work. (A. 796). He never had any discussion with Mr. Hucke regarding his [Kirk’s] title. (A. 803). Alan H. Kirk Inc. did not provide general contracting services. It did not own or supply materials, tools or trucks. It did not supervise tradespeople. (A. 804). Kirk did not provide any materials or equipment for the Hucke project. (A. 64). The plaintiff became involved in the project by A&LP. (A. 814-815). Kirk never discussed the issue of the plaintiff’s compensation with either Percoco [A&LP] or the Huckes. (A. 816). Kirk would get involved in scheduling the trades once it was worked out with Mike Hucke. (A. 824). Kirk did not provide any supervision to the plaintiff, to his company J. Bennett Building Inc., or to A&LP Construction or Andrew Percoco. (A. 826-827). Defendant-respondent Andrew Percoco testified that he owns and operates A&LP Construction Co, Inc. The business does carpentry, construction and some general contracting work. (A. 839). He learned of the job for Mr. and Mrs. Hucke through Kirk. (A. 842). He was provided with a set of plans and submitted a bid. (A. 14 842). He had a meeting with Mr. and Mrs. Hucke about the job. (A. 850). Mr. Kirk was present but he does not recall him saying anything at the meeting. A&LP won the bid and he signed a contract with the Huckes. (A. 852). Plaintiff-appellant Jim Bennett helped him with the bid and also started the work with A&LP. (A. 854). When asked to describe Kirk’s involvement, Percoco testified that Kirk would be around in case Mr. Percoco had any questions about the plans. If so, Kirk would go to the architect and get feedback. (A. 855). He also had discussions with Mr. Kirk about scheduling, such when it would be ready for the next person to come in. (A. 856). Kirk did not question the work done by A&LP. He had no knowledge of Kirk inspecting A&LP’s work. (A. 858). He has no knowledge of what agreement there may have been between Kirk and Mr. & Mrs. Hucke. (A. 858). Kirk never had A&LP perform any corrective work, either on matters performed by A&LP or by any other trades. (A. 858). With regard to Kirk’s involvement with other trades, it was pretty much the same – he scheduled them in, scheduled the trades so nobody was in each others way. He did not observe Kirk inspecting work performed by the other trades. (A. 861-862). The homeowner, Mr. Hucke, was around a lot, every day or every other day, to see in general how it was going. (A. 862). Mr. Percoco identified the contract between A&LP Construction Co. and the Huckes. (A. 863-864). Mr. Hucke provided all of the dumpsters and the materials. 15 (A. 866-867). A&LP was paid for its work by the homeowner. A&LP and the plaintiff-appellant were partners for the Hucke project, entering into a joint venture for it. (A. 883-884). Both A&LP and Bennett were working as contractors doing the framing to build the house. (A. 885-886). When A&LP got a check from Michael Hucke, Mr. Percoco would give half of it to the plaintiff and each would pay half of their payroll. (A. 886-887). On the day of the accident, they were in the process of erecting a scaffold to do some framing. (A. 900). They had not yet finished construction of the scaffold. (A. 907-908). He does not believe that Alan [Kirk] was present. (A. 916). OSHA responded to the accident and conducted an investigation. A&LP received only a single citation, relating to the lack of a guardrail around an opening in the first floor. It had nothing at all to do with the plaintiff’s accident. (A. 963). OSHA advised A&LP that there was no violation with regard to the scaffolding. (A. 964). [See also A. 1633] - “the compliance officer has determined that no violation will be issued for erecting of the scaffold or fall protection”]. The plaintiff-appellant was brought onto the job by A&LP and was paid through A&LP. (A. 965). Bennett was an experienced contractor with his own business. He provided tools and equipment for their work at the project. He was in charge of the building of the scaffold and was instructing others. (A. 967-969). 16 Kirk never controlled the way in which they did their work and never told them how to do it. Kirk would schedule and coordinate. (A. 976). A&LP had a set of construction plans which they followed. If on occasion there were questions about the plans, they would ask Kirk and Kirk would then go to the homeowner or to the architect to discuss it. (A. 977). A&LP and Bennett Construction provided their own tools and equipment. (A. 977). Architect Al Sutton was hired by the Huckes to prepare the architectural plans for their project. Regarding his architectural plans, he stated “this is how they constructed the project”. (A.1043). His services to the Huckes included “any interpretive construction questions”. However, changes to the plans would be an additional charge. (A.1051). He admitted that he tends to speculate as his conversational style and that he did so in his responses to questioning by plaintiffs’ counsel. He would also “best guess” some things. (A. 1110-1111). After being asked not to speculate or guess, he confirmed that once the architectural plans had been finalized, his involvement with the project largely ended. He did not go to the site on any regular or scheduled basis. (A. 1113). He does not know what happened at the project on a day to day basis after his plans were finalized. (A. 1113-1114). He was not involved in any discussions between the Huckes and Kirk regarding their 17 relationship for the project. He did not participate in any negotiations as to what role Kirk would play. (A. 1116). He admits that he does not know any of the details of the relationship between the Huckes and Kirk for the project. He would defer to the testimony of the Huckes and Kirk about the nature of their relationship. (A. 1117). He has no reason to second guess what the Huckes and Kirk testified to regarding the nature of their relationship. (A. 1117-1118). He has no idea as to what relationship if any, may have existed between Kirk and Percoco and A&LP for the project. (A. 1127-1128). In the course of the various motions, plaintiff-appellant’s counsel submitted the affidavit of his purported expert, Peter Pomerantz. (A. 1609-1614). Pomerantz claims to have reviewed every deposition transcript, the OSHA records, the construction plans, the pleadings and the Hucke-A&LP contract. His affidavit makes no reference at all to Alan Kirk or Alan H. Kirk Inc. He confirms that Hucke hired A&LP. He states at paragraph 4 that “The framing was to be performed in accordance with the Hucke construction plans drawn by the architect A.M. Sutton”. At paragraph 5 he states “The plans in question, directed Mr. Percoco and A&LP as to how to construct the structure” and that they built the structure “in accordance with the architectural and construction plans prepared by Mr. Sutton". 18 COUNTER-STATEMENT OF “JUDICIAL DETERMINATIONS OF FACT AND LAW” A. Although in his order of April 1, 2013 Justice LaSalle noted that the Huckes relied on Kirk to “supervise”, he did not make any findings therein as to the nature or scope of that supervision. In his order of April 5, 2013 he specifically addressed the issue of supervision by Alan H. Kirk, Inc. and found that it was limited to coordination of scheduling, administrative tasks and liaising with the homeowners and tradespeople. In his order dated January 14, 2014 Judge LaSalle, the Hucke’s hired A&LP directly and found that A&LP was the “prime contractor” for framing. Accordingly, when read together, the orders with regard to the Kirk defendants- respondents are consistent, logical and have a sound foundation in the record. B. The affidavit of the plaintiff’s expert is completely silent as to the Kirk defendants. The Kirk defendants did not submit any expert affidavits because there was no need for them to do so. The plaintiff’s expert exculpates the Kirk defendants by definitively stating that A&LP performed its work in accordance with the architectural plans and that it took its instruction directly from the architectural plans. 19 POINT I JUSTICE LASALLE’S ORDER OF APRIL 1, 2013 IS CONSISTENT WITH HIS ORDERS OF APRIL 5, 2013 AND JANUARY 14, 2014 AND HE PROPERLY DENIED PLAINTIFF’S MOTION TO RENEW AND REVERSE THE GRANT OF SUMMARY JUDGMENT TO THE KIRK DEFENDANTS Justice LaSalle’s comment in his order of April 1, 2013 that the Huckes relied upon the Kirk to supervise does not entitle the plaintiff to either renewal of the motions or to a reversal of his order granting summary judgment to the Kirk defendants. That order was confined to the issues pertinent to the Hucke’s motion for summary judgment and to the plaintiff’s opposition thereto. It is apparent that the Court was aware that separate motions had been subsequently submitted by the other defendants and that the Court would address those motions separately, each on its merits and in the order presented. In that regard, although Justice LaSalle noted in his order of April 1, 2013 that the Huckes relied upon Kirk to “supervise”, he did not further elaborate therein regarding the nature and extent of any supervision provided by Kirk. It is important to note that in his order of April 1, 2013, Justice LaSalle does not find that the Kirk defendants had authority to direct or control the work of A&LP or the plaintiff, or the means or methods by which it was performed. 20 In his order of April 5, 2013 Justice LaSalle addresses the issues specific to the Kirk defendants. His ruling that Alan Kirk is entitled to summary judgment in his individual capacity is directly supported by the record. (A. 246-247, 645). As to any supervisory role played by Alan H. Kirk, Inc., Justice LaSalle noted that it was limited to the coordination of work schedules, performing administrative tasks and acting as a liason between the homeowners and the people that the homeowners hired to do the work. Alan H. Kirk, Inc. was not vested with control and authority over the manner, details and results of the work being performed, nor did it ever assume such control. Kirk had no decision-making authority. That is directly supported by the sworn testimony of Mr. Hucke, Mrs. Hucke, Andrew Percoco and Alan Kirk. It is undisputed that the Hucke’s hired and paid the various tradespeople for their project and that they hired A&LP Construction Company, Inc. as the framing contractor. The Kirk defendants were never vested with authority to hire or to terminate any of the contractors, to control the manner or method by which they performed their work or to control site safety. The supervision which the Huckes relied on Alan H. Kirk, Inc. to provide was limited to coordination of the trades and keeping the Huckes informed as to the progress of their project. As such, there is no inconsistency whatsoever in Justice LaSalle’s orders of April 1, 2013 and April 5, 2013. 21 Plaintiff’s subsequent motion for leave to renew and reargue was properly denied. Motions for leave to renew or to reargue are not intended to provide the losing party with an opportunity to rehash claims and arguments previously asserted. Simon v. Granite Building II, LLC, 2012 N.Y. Misc. Lexis (2012). A motion to reargue is not to serve as a vehicle for the unsuccessful party to again argue the very questions which were previously decided. Mangine v. Keller, 182 N.Y.S.2d 476 (1st Dept. 1992); Fosdick v. Town of Hempstead, 126 N.Y. 651 (1891). The movant must show that the court overlooked or misapprehended the facts or law to mistakenly arrive at its earlier decision. See Barnett v. Smith, 64 A.D.3d 669 (2d Dept. 2009). On his motion to renew and reargue, plaintiff herein failed to show that the court below erred in its evaluation of the facts or of the law. The denial of the plaintiff’s motion to renew and reargue is correct and should be affirmed. The court below correctly noted that a motion to renew must be supported by new evidence unavailable at the time of the original motions and that none was produced here. It is clear from the record that the plaintiff did not submit any new evidence. The court correctly concluded that the plaintiff’s motion was in fact an attempt to reargue. The plaintiff failed to demonstrate that Justice LaSalle overlooked or misapprehended any relevant facts, or that he improperly applied any controlling principle of law. The record supports the Court’s conclusion. On appeal, 22 plaintiff-appellant fails to provide any basis to warrant reversal. Lastly, Justice LaSalle’s finding in his order of January 14, 2014, that A&LP Construction Co., Inc. was the prime contractor for framing and responsible for its own work is entirely consistent with the evidence and with his two prior orders. The orders of April 5, 2013 and January 14, 2014 should be affirmed. POINT II PLAINTIFF’S ARGUMENT REGARDING “LAW OF THE CASE” IS WITHOUT MERIT Plaintiff-appellant’s assertion that the order of April 1, 2013 constituted “law of the case” and that it is somehow in conflict with the order of April 5, 2013 is without merit. Only the order of April 5, 2013 specifically addresses the scope of the “supervisory” role of Alan H. Kirk, Inc. It correctly found that it was a very limited, confined to scheduling, administrative tasks and liaising between the trades and the homeowners. There is nothing in the order of April 1, 2013 which is inconsistent with that. The appellant’s assertion that the mere fact that the accident involved a fall from a height should equate to liability against the Kirk defendants under the Labor Law ignores well-established law and the facts of this case. Not every worker who falls at a construction site is entitled to the extraordinary protections of Labor Law 23 §240(1). Ross v. Curtis-Palmer Hydro Electric Co., 81 N.Y.2d. 494; Narducci v. Manhasset Bay Associates, 96 N.Y.2d. 259 (2001). OSHA responded to the scene on the day of the accident and inspected the scaffold. OSHA determined that there was no violation either for the scaffold or for fall protection. (A. 1015). Nonetheless, it is fundamental that a party will not bear liability under the Labor Law if they do not owe a duty of care. Where a defendant is neither an owner nor a general contractor, no liability attaches to them under §240, §241 or §200 of the Labor Law where they were not vested with authority to control the work. See, D’Amico v. New York Racing Association, 203 A.D.2d. 509 (2nd Dept. 1994). As this court noted in its decision in D’Amico, the term “control” is to be strictly construed and must relate to control over the actual means and methods of the work. It must be something more than mere general supervision. The Kirk defendants were not agents of the owners. It is well settled that the term “agent” has been limited to those who have been delegated authority and control over the work which results in the injury. Russin v. Picciano & Son, 54 N.Y.2d 311 (1981). The Kirks were never delegated such authority or control. The Court below correctly noted in the order of April 5, 2013 that it is not a party’s title that it is determinative, but the degree of control or supervision which they exercised over the work, citing Walls v. Turner Construction Company, 4 24 N.Y.3d. 861 (2005) and Delahaye v. St. Ann’s School, 40 A.D.3d. 679 (2nd Dept. 2007). In Duda v. John W. Rouse Construction Corp., 32 N.Y.2d. 405 (1973) the Court of Appeals held that the term “directed” means supervision over the actual method and manner in which the work is performed, and that those words are to be strictly construed. A similar case, Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d. 280 (2003), is germane. In Blake, defendant NHS was hired by the property owner to assess the scope of work on a home renovation project, prepare an estimate of costs and provide a list of potential contractors from which the homeowner could choose when to hire. That is remarkably similar to the relationship between Alan H. Kirk Inc. and the Huckes in the case at bar. In Blake, the Court of Appeals held that an agency relationship between the property owner and a third-party arises only when the work itself is delegated to the third-party, who then obtains the authority and control over the work. However, where responsibility for the work which results in the injury is not delegated to the third-party, no agency relationship arises. The Court of Appeals further held that mere coordination of the work does not constitute control over it, particularly where, as here, the defendant did not involve itself with the details of how the individual contractors performed their jobs. See, Blake v. Neighborhood Housing Services of New York City, Inc., supra. Here, no 25 work at all was delegated to Kirk nor did Kirk exercise any control over it. As this court held in Rodriguez v. JMB Architecture LLC., 82 A.D.3d. 949 (2nd Dept. 2011) mere general supervision, coordination of the trades and providing progress reports to the owner is not sufficient to impose liability upon a defendant, regardless of their title. See also, Armentano v. Broadway Mall Properties, Inc., 30 A.D.3d. 450 (2nd Dept. 2006) [creating work schedules, coordinating different subcontractors and preparing progress reports does not constitute the level of supervision or control sufficient to object a party to liability under the Law Law]. Appellant’s suggestion that the court below should have searched the record and granted “reverse summary judgment” to the plaintiff and against the Kirk defendants is, upon information and belief, an entirely new argument not previously asserted. It should be disregarded in its entirety. Bertalo’s Restaurant, Inc. v. Exchange Ins. Co., 1997 N.Y. Lexis 6496 (2nd Dept. 1997) and Brower v. TRW Title Ins. of New York, 233 A.D.2d. 473 (2nd Dept. 1996). The argument is without merit. Similarly without merit is appellant’s assertion that his “unrefuted expert” somehow warrants judgment against the Kirk defendants. The expert’s affidavit is completely silent as to the Kirk defendants and, indeed, it exculpates them. Appellant now suggests that the Kirk defendants directed the work which the plaintiff was performing. In contrast, his own expert states that the work in which the plaintiff was 26 engaged was directed by the architectural plans, nothing else. (A. 1609-1610, paragraphs 4 and 5). Justice LaSalle’s order granting summary judgment to the Kirk defendants is consistent with prevailing law, soundly supported by the record and should be affirmed. POINT III THE COURT BELOW CORRECTLY RULED THAT THE KIRK DEFENDANTS ESTABLISHED THEIR ENTITLEMENT TO SUMMARY JUDGMENT AS A MATTER OF LAW AND PLAINTIFF’S ASSERTIONS TO THE CONTRARY ARE WITHOUT MERIT The grant of summary judgment to the Kirk defendants is squarely supported by the evidence and is consistent with well-established case law. Justice LaSalle noted the standards applicable to summary judgment, citing Zuckerman v. City of New York, 49 N.Y.2d. 557, 427 N.Y.S.2d. 595 (1980), Winegrad v. New York University Medical Center, 64 N.Y.2d. 851, 487 N.Y.S.2d. 316 (1985). (A. 12). Appellant’s assertion that the court below improperly resolved issues of credibility has no support in the record. Similarly without merit is appellant’s assertion that the court below failed to view the evidence in a light most favorable to him. The plaintiff himself was a movant and sought summary judgment against the Huckes and later against defendants A&LP/Percoco. The court below correctly 27 weighed the evidence and applied the law. Appellant’s assertion that he was somehow entitled to an “inference” which required a denial of summary judgment to the Kirk defendants is meritless. Appellant fails to establish the “inference” he was hoping for, why it was warranted and how it would have required a different outcome. The testimony of the Huckes and Kirk regarding their relationship is clear and it is undisputed. Alan Kirk’s affidavit (A. 246-247) that all of his actions in connection with the project were in his capacity as president of the corporate entity, Alan H. Kirk, Inc., is supported by the record. There are no issues of credibility regarding the limited role of Alan H. Kirk, Inc. in the Hucke project. The speculative musings of architect Alan Sutton do not raise any genuine issues of fact or credibility. As noted by Justice LaSalle, Mr. Sutton testified that in fact he has no knowledge of any of the details of the agreement entered into between the Hucke’s and Kirk, he never observed any of Kirk’s interactions with anyone at the worksite, he had no reason to dispute the testimony by the Huckes and Kirk regarding their relationship and he would defer to their testimony in that regard. (A. 13; see also, 1113-1118). The court below did not improperly resolve issues of credibility or fail to grant inferences to the plaintiff. Rather, it noted the plaintiff’s arguments, applied the 28 evidence and correctly ruled that the plaintiff failed to raise a triable issue sufficient to deny summary judgment to the Kirk defendants. The cases cited by the plaintiff (Asaaf v. Ropog Cab Corp., 153 A.D.2d. 520 (1st Dept. 1989) and O’Sullivan v. Presbyterian Hospital, 17 A.D.2d. 98 (1st Dept. 1995) holding that the court should not pass upon issues of credibility, are not implicated here. It is clear that the court below did not in any way run afoul of that standard. Appellant’s reference to Donato v. Elrac Inc., 18 A.D.3d. 696 (2nd Dept. 2005) is also misplaced. In the case at bar, there is no issue of credibility relating to an affidavit, let alone one which would warrant a trial in order to subject the affiant to cross-examination. The affidavit of Alan Kirk attesting that he acted only his capacity as an officer of Alan H. Kirk, Inc. is not contradicted by his deposition testimony. The only other affidavit was submitted was that of the plaintiff’s purported expert and it is utterly silent with regard to the Kirk defendants. The Huckes and Kirk agree that Kirk was not hired to perform the construction work, that Kirk did not hire or pay the trades and that Kirk had no authority to terminate any of the trades. The Huckes, Kirk and A&LP agree that Kirk did not direct or control the work itself or the means and methods of the trades in executing the work. Accordingly, there is no genuine issue of credibility. The court below correctly granted summary judgment to the Kirk defendants and that award should be affirmed in its entirety. 29 POINT IV THE COURT BELOW CORRECTLY RULED THAT ALAN H. KIRK, INC. HAD ONLY A LIMITED SUPERVISORY ROLE WHICH DID NOT SUBJECT IT TO LIABILITY FOR THE PLAINTIFF’S ACCIDENT The lower Court’s decision on this point is soundly rooted in the evidence. It is undisputed that the Huckes hired the contractors that worked on their home, provided their materials and paid them. The Kirk defendants did not undertake to perform any of the work. They did not provide any tools or materials. They did not hire the contractors or pay. Kirk did not have authority to fire any contractors. (A. 631-632). Appellant’s comment that Mrs. Hucke may have expected that Kirk would “supervise” by visiting the site to make sure that work was progressing underscores the fact that Kirk’s role was limited. It is consistent with Mrs. Hucke’s testimony that Kirk’s function was an organizational one, giving them choices to consider in terms of potential contractors to hire, getting bids and then keeping them informed regarding the progress of the work. (A. 710-711). Appellant’s assertion that the Kirk defendants “directed” subcontractors finds no support in the record. Defendant Percoco testified that he was not privy to any discussions or interaction Kirk may have had with the other trades. (A. 861). He testified that Kirk’s involvement related to scheduling, so that the trades would not be in each other’s way, and that he did not observe Kirk inspecting the work. (A. 858, 30 861-862). Indeed, Percoco confirmed that Kirk never told A&LP how to do its work. His interaction with Kirk was to schedule and coordinate when A&LP would work and to convey any questions which A&LP had about the plans to the homeowner or architect. (A. 976-977). Percoco never testified that the Kirk’s defendants had authority or control over the work which A&LP was hired to perform. That is a fundamental fact which appellant continues to overlook. Accordingly, appellant’s reliance on Samaroo v. Patmos Fifth Real Estate, Inc., 102 A.D.3d. 944, 959 N.Y.S.2d. 229 (2nd Dept. 2013) is misplaced. Samaroo is distinguished on its facts because, in the case at bar, there is no evidence at all that Kirk was ever vested with authority or control over the work which resulted in the plaintiff’s injury. Rather, the evidence establishes to the contrary. Appellant’s preoccupation with what title should be assigned to the Kirk defendants, whether that of construction manager or otherwise, overlooks the law and the undisputed evidence. A party’s title does not determine their liability, it is the degree to which they possessed the authority to control the activity which resulted in the injury. See Armentano v. Broadway Mall Properties, Inc., 30 A.D.2d 450, 817 N.Y.S.2d 132 [2d Dept. 2006); Delahaye v. St. Anne’s School, 40 A.D.3d 679, 836 31 N.Y.S.2d 233 (2d Dept. 2007). The Kirk defendants had no such authority. The Court below correctly noted the evidence and cited to it as the basis for granting summary judgment to the Kirk defendants. Appellant’s continued efforts to proffer comments by architect Alfred Sutton, provide no basis to deny summary judgment to the Kirks. Sutton admitted under oath that in responding to questions by plaintiff’s counsel regarding what role Kirk played in the project, he was entirely speculating. When asked not to speculate, he unequivocally confirmed that in fact he has no knowledge at all what agreement was worked out between the Huckes and Kirk, that he was not privy to any of their discussions, that in truth he does not what role the Kirk defendants played and he never observed Kirk’s interaction with any of the tradespeople at the project. Appellant’s reference at pages 26-27 of his brief to excerpts of testimony by defendant Percoco is notable for what it omits. Namely, regarding his questioning of Mr. Percoco as to Kirk’s interaction with other trades, counsel omits the conclusion of that sequence of the testimony: Q: Relative to the other trades; the masons, roofers, painters, plumbers, are you aware of what role Mr. Kirk may have played with those other trades? If you don’t know, you don’t know, I’m just asking you. A: I pretty much know same as me; he scheduled them in when they could start, scheduled the other trades so nobody is in each other’s way. 32 Q: Did you observe him inspecting any of the work performed by the other trades? A: No, I couldn’t tell you. (A. 861-862). Also unavailing are appellant’s arguments with regard to OSHA and its interaction with A&LP/Percoco. The fact remains that OSHA fined A&LP for an unrelated violation and that A&LP paid the fine because it related to A&LP’s framing work. The plaintiff was doing framing work. Kirk was not hired to do framing. A&LP does not dispute that it was the prime contractor for framing. Similarly, appellant submits a comment by Percoco that he thought that Mr. Kirk was on the premises when the scaffolding was being created, but omits Percoco’s testimony that he does not actually know where Kirk was when the scaffolding was being erected. (A. 984-985). Regardless, Kirk’s presence or absence during the erection of the scaffold is not controlling, because the evidence establishes that Kirk never undertook to perform that work, was never vested with control or authority over it, never assumed control or authority over it, nor did Kirk direct or control the means or methods by which it was performed. Therefore, the Kirk defendants are entitled to summary judgment whether or not they were present when the scaffold was being assembled. The testimony of Alfred Sutton was properly assessed by the Court below in conjunction with the rest of the evidence. Sutton’s inclusion of a comment to the 33 homeowner on the architectural plans, recommending that they have a qualified contractor, was clearly meant only as a warning to the customer that they would be responsible for the cost any subsequent corrections to the plans. Appellant’s attempt use extrinsic evidence in the form of an affidavit prepared for Sutton on a motion for summary judgment in an entirely separate and unrelated action against Mr. Sutton, in which Sutton’s attorney characterized Kirk as a general contractor, is not only without merit, it was soundly debunked. Moreover, extrinsic evidence cannot be used to impeach a party on matters or transactions which are collateral to the case at hand. Parsons v. 218 East Main Street Corp., 1 A.D.3d. 420 (2nd Dept. 2003); Ingebretson v. Manha, 218 A.D.2d. 784 (2nd Dept. 1995). Regarding the characterization of Kirk as a general contractor for a different customer [Mr. Kern] and an unrelated project, Sutton admitted that his attorney selected the language and authored the document, he did not write it himself. Omitted from the appellant’s argument is Sutton’s testimony regarding the Kern project, as follows: Q: Sir, with regards to your questions about paragraph four where it mentions Alan H. Kirk, Inc. as being the general contractor, sir, in truth, is it fair to say you don’t know the exact nature of Mr. Kirk’s business relationship to the Kern project – (Mr. Bennett: just note my objection to form). Q: -- the actual title that he wore? A: Absolutely correct. I don’t really know the mechanics of 34 that relationship. (R. 1126). Similarly without basis is appellant’s attempt to use an affidavit by Mr. Kirk in support of Alan H. Kirk, Inc.’s effort to get paid for its services to Mr. Kern. Appellant’s endeavor create on issue of fact by referring to Kirk’s work for other customers is meritless, particularly in view of the fact that Mr. Hucke, Mrs. Hucke and Kirk have all testified in detail and under oath about the terms of their relationship for the project at issue. Similarly unavailing are appellant’s arguments regarding the occasional inclusion of the initials “GC” on checks issued by Mr. & Mrs. Hucke to Kirk or made payable to Alan Kirk. The court below correctly noted that the occasional inclusion of the letters “GC” on the memo line of some checks fails to raise a triable issue of fact regarding the limited supervisory role played by Alan H. Kirk, Inc. The grant of summary judgment to the Kirk defendants should be affirmed. 35 POINT V ALAN KIRK ESTABLISHED HIS ENTITLEMENT TO SUMMARY JUDGMENT IN HIS INDIVIDUAL CAPACITY The record establishes that Alan Kirk’s involvement with the Hucke project was undertaken in his role as president of Alan H. Kirk, Inc. Plaintiff’s counsel had a full and fair opportunity to depose Mr. Kirk. (A. 750–829). Whether by strategy or by oversight, counsel did not specifically question Mr. Kirk as to whether his involvement with the project was personal or under his corporation, Alan H. Kirk, Inc. However, when counsel questioned defendant Michael Hucke earlier that same day, Mr. Kirk was present. (A. 614). Plaintiff’s counsel clearly stated on the record and in the presence of Mr. Kirk, that when he made reference to “Mr. Kirk” “for purposes of the record, I mean the company”. (A. 645). Plaintiff’s counsel did not directly address the issue during his examination of Mr. Kirk immediately thereafter. Accordingly, upon moving for summary judgment an affidavit was submitted by Mr. Kirk attesting that all of his dealings with regard to the project were in his role as president of Alan H. Kirk, Inc. (A. 246-247). The court below correctly ruled that Mr. Kirk established prima facie his entitlement to summary judgment dismissing all claims against him in his individual capacity. Corporations are legal entities which exist separate and apart from their shareholders. It is proper for an individual to incorporate in order to protect themselves from personal liability, 36 even where there is a single shareholder. Worthy v. NYC Housing Authority, 21 A.D.3d 284 (1st Dept. 2005); Matter of Total Care Health Indus. V. Department of Social Services, 144 A.D.2d 678 (1988). A corporate officer is not subject to personal liability for actions taken in furtherance of the business of the corporation, even where they are the president and sole shareholder. Worthy v. NYC Housing Authority, 21 A.D.3d 284 (1st Dept. 2005). Plaintiff’s continued resort to personal attacks upon Mr. Kirk is no substitute for admissible evidence and the court below correctly recognized that. It bears mention that the architect, Mr. Sutton, stated that Mr. Kirk “is a person of integrity”. (A. 1118). Equally unavailing are appellant’s new assertions on appeal that Kirk ordered material for the job. Mr. Hucke testified that he paid for the materials for their project. (A. 673). That is evidenced by their checks to Thurber Lumber, Allied Building Products, North Shore Window & Door, Elegant Rails & Stairs, New Country Cabinet Company, Hunter Insulation and Riverhead Building Supply, among others. The court below correctly ruled that Alan Kirk was entitled to summary judgment in his individual capacity and the order should be affirmed in its entirety. 37 POINT VI APPELLANT’S CONTINUED ARGUMENT THAT HE WAS DENIED “INFERENCES” AND THAT THE COURT BELOW FAILED TO CONSIDER NUMEROUS QUESTIONS OF FACT IS WITHOUT MERIT Appellant’s argument under Point VI is an amalgam of arguments presented elsewhere in his brief, including: the court below improperly weighed issues of credibility; attempts to argue extrinsic matters regarding other projects collateral to the issues at hand; Percoco’s interaction with OSHA; and the alleged failure of the court below to grant him a “favorable inference”. These arguments are meritless and all are addressed elsewhere in this brief. Accordingly, in the interests of judicial economy, the Kirk respondents will not further respond them under this point heading. POINT VII THE COURT BELOW PROPERLY CONSIDERED THE EVIDENCE SUBMITTED IN SUPPORT OF AND IN OPPOSITION TO THE MOTION TO SUMMARY JUDGMENT BY THE KIRK DEFENDANTS Appellant’s argument at Point VII of his brief is also largely a rehash of arguments presented earlier in his brief. It too is largely based on extrinsic evidence collateral to the issues at hand, a practice which has soundly been rejected as improper. Extrinsic evidence cannot be used to impeach the credibility of a witness on collateral matters. See, Parsons v. 218 East Main Street Corp., 1 A.D.3d. 420 (2nd 38 Dept. 2003); Badr v. Hogan, 75 N.Y.2d 629, 554 N.E.2d 890 (1990); Ingebretson v. Manha, 218 A.D.2d 784 (1995). The court below correctly recognized that plaintiff’s attempts to attack Kirk by referring to different projects for other customers , totally unrelated to the Hucke project, bore no relevance to the issues at hand. It appears that some of the referenced testimony, however collateral or extrinsic, is not correctly cited to the appendix. Nonetheless, it underscores the fact that the Kirk defendants did not undertake to provide for site safety. The very testimony cited by appellant underscores the Kirk defendants’ entitlement to summary judgment in that they did not undertake to supervise the work of tradespeople. As to the case at bar, that is corroborated by Mr. Hucke, Mrs. Hucke and Andrew Percoco. It is not contradicted by architect Sutton, because Sutton admits that, in truth, he has no knowledge of Kirk’s role at the Hucke project. The court below properly considered the evidence. The decision granting summary judgment to the Kirk defendant should be affirmed in its entirety. 39 POINT VIII THE COURT BELOW CORRECTLY FOUND THAT THE INADVERTANT OMISSION OF AN ANSWER FROM THE UNDERLYING MOTION PROVIDED NO BASIS TO DENY SUMMARY JUDGMENT TO THE KIRK DEFENDANTS The pleadings in this action are numerous. The Kirk defendants made a good faith effort to submit all of the pleadings as exhibits to their motion. Inadvertently omitted was the “proposed answer” of the Kirk defendants dated February 22, 2010. (A. 200-208). However, the Kirk defendants did submit all other pleadings in this action, including the answer of the Kirk defendants to the original underlying action. (A. 263-274). The proposed answer was deemed served by Judge Tanenbaum’s order of July 22, 2010. (A. 198). The inadvertent omission of the proposed answer was an oversight and, at worst, harmless error. That is underscored by the fact that both of the proposed answer dated February 22, 2010 and the included answer dated February 24, 2005 relate to essentially the same parties and contain the same denials, defenses and cross- claims with the exception that the proposed answer asserted denials as to the new allegations in the amended complaint regarding workers’ compensation. However, those allegations were fully briefed and argued by all sides in the underlying motion. The court below addressed the workers’ compensation issue at page 4 of its order 40 dated April 5, 2013. (A. 12). Accordingly, the issue was fully vetted and the Kirk defendants established that they were not the plaintiff’s general or special employer and had no obligation with regard to workers’ compensation benefits. There is no prejudice at all to the plaintiff from the omission of the answer and, importantly, none is claimed. The insignificance of the inadvertent omission of the answer is underscored by the fact that the plaintiff completely failed to raise it with the court below in opposition to the Kirks’ motion for summary judgment. The first comment on it was in the motion to renew/reargue. Nonetheless, the appellant cannot establish that the inadvertent omission of a single pleading would in any way have changed the outcome of the motion, nor does he claim that it would have. See, Hackney v. Victoriano Monge, 103 A.D.3d. 844 (2nd Dept. 2013). [Leave to renew should be denied where the inadvertent omission of a document would not change the prior determination of the court]. On plaintiff’s motion to renew/reargue the omitted answer was submitted to the court. (A. 200-208). A plain review of the answer reveals that it would not in any way provide a basis to deny summary judgment to the Kirk defendants. 41 POINT IX PLAINTIFF’S ARGUMENTS AS TO RESPONDENT ANDREW PERCOCO UNDERSCORES THAT THE KIRK DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT The Kirk defendants did not oppose summary judgment being granted to Andrew Percoco, individually. However, appellant’s arguments against Percoco are illustrative of the fact that the inadvertent omission of an answer from the Kirks’ motion was harmless error because the issues of the plaintiff’s employer and workers’ compensation benefits were fully submitted to the court and addressed by the litigants. Indeed, appellant argues at pages 57 – 58 of his brief that Justice Melvin Tanenbaum has already ruled that on the date of the occurrence the plaintiff was an employee of J. Bennett, Inc. At page 59, appellant argues that it is established by judicial determination that the plaintiff was an employee of his own company. J. Bennett Building, Inc. on the date of the accident. Whatever the merits of the appellant’s arguments are against respondent Percoco individually, they are exculpatory of the Kirk defendants both as to the issues of employment and any alleged obligation to procure workers’ compensation benefits in favor of the plaintiff. CONCLUSION The order of Justice LaSalle dated April 5, 2013 properly granted summary judgment to defendants-respondents Alan Kirk and Alan H. Kirk, Inc. The plaintiff's motion to renew and reargue was properly denied. The grant of summary judgment to defendants-respondents Alan Kirk and Alan H. Kirk, Inc. should be affirmed. Dated: Bohemia, New York June 12, 2014 Respectfully Submitted, MA..ZZARA & SMALL, P.C. Attorneys for Defendants-Respondents ~1::~~~RK@er~ ~·?RK, INC. _l_t~~ ; . ~ 7_~~2Ci~