Joseph Bennett,, Appellant, et al., Plaintiff,v.Michael Hucke, et al., Defendants, Alan Kirk, et al., Respondents.BriefN.Y.August 23, 2016ORJGINAL M.AZZARA & SMALL, P.C. Kathy B. Small, Esq.* Timothy F. Mazzara, Esq.* *Admitted in NY & CT New York Court of Appeals 20 Eagle Street Albany, New York 12207 Attorneys at Law 1698 Roosevelt A venue Bohemia, New York 11716 Phone: (631) 360-0600 Fax: (631) 360-0669 Electronic/fax service not accepted June 27, 2016 Angela P. Pensabene, Esq. Craig M. Dolinger, Esq. Janis Machalski Paralegal Re: Appeal -Bennett v. Hucke, et al Court of Appeals No.: APL-2016-00093 App. Div. Case Nos.: 2013-06108 and 2014-02911 Respondent Kirks' Submission Pursuant to Rule 500.11 Dear Honorable Justices: The undersigned represents det(mdants-respondents Alan Kirk and Alan H. Kirk Inc. in this matter. I respectfully submit the following comments and arguments pursuant to § 500.11 of the New York Rules of Court in opposition to the plaintiff's appeal. It is respectfully submitted that the decision of the Trial Court and the subsequent unanimous decision of the Appellate Division Second Department should be upheld. Comments and Arguments of Respondents Alan Kirk and Alan H Kirk Inc. The Trial Court properly dismissed all of the claims against Mr. Kirk and Alan H. Kirk, Inc. The Appellate Division was correct in unanimously affirming that decision. The record directly supports the determinations of both lower Courts that Alan Kirk bears no liability in his individual capacity, that the role of Alan H. Kirk Inc. was limited and that it was never delegated authority and control over the work that resulted in the plaintiff's accident. 1 Defendant A&LP Construction Co. Inc. was hired directly by the owner, Mr. Hucke, as the prime contractor for the carpentry/framing work that was involved in the plaintiffs accident. As such, A&LP was specifically delegated authority and control over the work. Alan Kirk and Alan H. Kirk, Inc. were not a party to that contract and never undertook to perform that work, or any other work. Authority over A&LP remained with Mr. Hucke, as he held the contract with A&LP. Any agency relationship created by that .contract flowed directly from Mr. Hucke to A&LP. Responsibility for the work was delegated by the owner directly to A&LP, which remains a party to this action. It is respectfully submitted that there is no basis to overturn the decisions of the Trial Court and the Appellate Division in favor of Alan Kirk and Alan R Kirk, Inc. Factual Background The project at issue consisted of Michael and Cindy Hucke's renovation and extension of their home. The record establishes that the Kirk defendants were neither the general contractor nor the agent of the owners. It is undisputed that the Huckes hired and paid all of the contractors, that Kirk did not undertake to perform any of the work and that Kirk did not have any authority to terminate any of the trades that the Huckes hired. Kirk was not given any authority over safety conditions or the work practices of the Hucke's contractors, nor did it assume any. Mr. and Mrs. Hucke hired an architect to draft the plans that would govern the work. They hired an expediter to represent them before the Town of Brookhav.en and to obtain the permit for the work. (A641-642, 670-671,721-722). Neither Alan Kirk nor Alan H. Kirk were listed as the contractor on the permit. (A670-67l).Thereafter, the Huckes entered into a verbal agreement with Alan H. Kirk, Inc. The Huckes chose to hire all of the contractor's for their project and their testimony confirmed that Kirk's role in their project was limited. Kirk would introduce them to different contractors whom they could consider hiring, obtain bids for them to consider, do the scheduling of the contractors that they hired and report to them on the progress of their project. Mr. Hucke has a degree in Business Administration and an J\tlBA in Finance. (A616-617). He detailed his employment background. (A617-622). He confirmed that he and his wife were free to choose the contractors and to get their own estimates. (A630). Kirk's role regarding supervision was to check that contractors were showing up and working before Mr. Hucke paid them. (A631). Kirk's role was" ... more about coordination of all the different trades rather than supervising". 2 (A633). They did not discuss Kirk have any role at all regarding safety at the site. (A631 ). Mr. Hucke did not feel that Kirk had any authority to terminate a contractor. (A631-632). It was his understanding that each of the contractors he and his wife hired were to be responsible for their own work. (A677). He does not know of Mr. Kirk ever instructing any ofthe tradespeople on how to do their work. (A677-678). Mr. Hucke confirmed that he is the one who authorized A&LP to do the work at his house. (A672). He hired A&LP to do demolition, windows, doors and to "frame as per plans". (A1493-1495). He identified his signature on his contract with A&LP. (A644-645, 671-672). He was introduced to the plaintiff by A&LP, not by Kirk. (A675-676). He paid A&LP directly. (A676-677). He did not give Kirk access to a checking account to pay any contractors for the project. (A674-675). Payments for the project were from his joint bank account with his wife. (A634). He understood that Kirk would not be providing any tools or equipment to any of the contractors. (A675). Mrs. Hucke said that Kirk's role was "organizational". (A711). She and her husband decided which tradespeople to hire. (A711, 717). They had an expediter to represent them at the Town, it was not Kirk. (A722). She has no knowledge ofl\1r. Kirk ever telling or instructing any of the trades at the site how to do their work. (A741). Mr. Kirk formed Alan H. Kirk, Inc. in or about 2000. He is the president and the sole officer and sharehoider. (A781). Alan H. Kirk, Inc. did not provide services as a general contractor, it does not own or supply any trucks, tools or materials. (A804). Kirk had a verbal agreement with the Huckes. Mr. Kirk's dealings with the Huckes were in his role as the President of Alan H. Kirk, Inc. (A246-247). He agreed to help them find the tradespeople for their project, not to observe their work practices on safety issues. (A 795). He would get bids for the Huckes but Mike Hucke decided who he wanted to hire. (A793). Kirk would also make note of the payments that the Huckes made to their contractors. (A820). He had no authority to terminate any of the trades at the site. (A779). He did not provide them with any equipment. (A796). He did not direct any of the trades as to the manner in which they were to do t.1eir work. (A796). He did not supervise the work of A&LP or the plaintiff. (A826-827). His visits to the site varied.(A 778). He has no knowledge of the scaffolding in use by A&LP and the plaintiff. (A808-809). He was not at the site when the police arrived that day. (A823). He did not provide the materials for the job. (A813). Kirk had no involvement with A&LP bringing the plaintiff to the project, he was simply infonned of it by Mr. Percoco of A&LP. (A814-815). The Huckes paid for all materials and supplies. (A821 ). Kirk did not supervise either the plaintiff's company, J. Bennett Building, Inc., or A&LP at the project. (A826-827). 3 The plaintiffs brief to the Appellate Division admits, at page 11, that A&LP was hired as the "prime contractor" for the carpentry framing work involved in the accident. The Kirk defendants were not a party to that contract. Albert Percoco is an owner of A&LP, which was in the business of construction, carpentry and some general contracting work for over 20 years. (A838-839). After entering into the contract with Mr. Hucke, A&LP entered into a joint venture with the plaintiff, who owned and operated Bennett Building, Inc., to share in the framing work. (A886). Mr. Percoco would get paid directly by Mr. Hucke. (A980-981 ). He would then share those payments with the plaintiff. (A886-887). A&LP paid Bennett Building, Inc. (A889). Describing his interaction with Kirk, Mr. Percoco said that it related to scheduling, and if he had questions about the plans Mr. Kirk would get feedback from the architect for him. (A855-856). Mr. Kirk did not question A&LP's work. (A857-858). Kirk's role with the other trades was the " ... same as me, he scheduled them in when they could start, scheduled the other trades so nobody is in each other's way." (A861-862). He never saw Kirk inspecting the work of the other trades. (A862). Kirk never controlled the way they did their work or tell them how to do it. (A976). The accident happened as the plaintiff and A&LP were in the process of assembling a scaffold for their framing work. OSHA. responded to the scene that same day. The compliance officer investigated and determined that there was no violation regarding the erection of the scaffold or fall protection. (Al015). Mr. Percoco did not tell OSHA that Kirk was the manager of the job site. He stated that he was not going to put the responsibility on anybody else "because it should have been mine." (A954-955). He has no memory of Mr. Kirk being present on the date of the accident when A&LP was erecting its scaffold. (A985). Litigation commenced in January 2005. (A248-262).The plaintiff filed a second and largely identical action in 2007. (A323-339). More than seven years later the plaintiff certified that all discovery was complete, with no claim that any discovery was due and owing by the Kirk defendants. (A371). The affidavit of the plaintiffs expert, Mr. Pomeranz, provides no basis to reverse the lower court decisions. It makes no mention at all of Alan Kirk or Alan H. Kirk, Inc. (A1609-1614). There is nothing in it for the Kirks to refute. Pomeranz confirms that "Mr. Hucke entered into a Contract with A&LP" and that it was the architect's "construction plans" that "directed Mr. Percoco and A&LP as to how to construct the structure" and that they did so in accordance with those plans. He also notes that Mr. Hucke was obligated to "supply all materials and all supplies for the construction", including scaffolds. (Al612). Pomerantz puts no blame or responsibility at all on Kirk. 4 The Trial Court correctly ruled that the presence of the letters "GC" on some checks to Kirk and extrinsic matters regarding Kirk's role on unrelated projects for different customers provided no basis to deny summary judgment to Alan Kirk and Alan H. Kirk, Inc. (A13). Nor did the inadvertent omission of a single pleading from the motion. All of the pleadings were submitted with the Kirks' motion except for a single answer to the 2007 action. (A200-208). However, an earlier and substantially similar answer to the 2007 action was submitted. (A340-349). Also, the omitted answer was already in the possession of t.he Trial Court from prior motion practice. (Al98). It was also before the Appellate Division as pa.:t of the Appendix when it affirmed the decision of the Trial Court. (A200-208). Response to Plaintiff-Appellant's Point I The plaintiff's conclusory assertion that he was denied "inferences" is without merit. Unspecified "inferences" are no substitute for the well-established requirement that a party opposing summary judgment must submit evidentiary proof in admissible form establishing that there are genuine and material issues of fact. The plaintiff failed to meet that burden. His reliance on Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S. 2d 923 (1986) and Ferrante v. American Lung Association, 90 N.Y.2d 623, 665 N.Y.S.2d (1997) is misplaced. In Ferrante v. Prospect Hospital, supra, this Court held that the plaintiff does not meet his burden merely by repeating the allegations against the defendant or by unsubstantiated allegations and speculation. The plaintiff's assertion that there is conflicting evidence from which a jury might draw different inferences is not supported by the record. Nor does this Court's decision in Foltis v. New York, 287 N.Y. 108, 38 N.E.2d 455 (1941) suggest a rule that juries should be empaneled on a broad basis to draw inferences or determine presumptions. The Foltis decision dealt specifically with the doctrine of res ipsa loquitur, a broken water line and the question of whether a jury could infer that the defendant was negligent under that doctrine on the particular facts of that case. That is not at all similar to this case. The Trial Court and the Appellate Division did not improperly weigh the credibility of Alan Kirk or any other witness. The record establishes that they viewed and correctly assessed the totality of the evidence. The fact that Kirk did not have a written contract with the homeowners does not create an issue of fact. The lack of a written contract is not uncommon. Also, lv1r. Kirk, Cindy Hucke and Michael Hucke testified consistently regarding the terms of their relationship, establishing that Kirk's role was limited. There is no genuine fact issue here. 5 The assertion that Kirk did not provide any paper discovery whatsoever is simply not accurate. After more than 7 years of discovery the plaintiff certified that discovery proceedings had been completed. The fact that the bulk of the paper discovery was provided by the Hucke defendants simply reflects the fact that they hired the contractors, they paid the contractors, they paid for the materials and they therefore ended up in possession of the records. All of which refutes the plaintiffs allegation that Kirk was the "general contractor". The plaintiffs list of claimed factual issues and inferences is without merit and is not supported by the record: ( 1) Plaintiffs repeated efforts to use select excerpts of testimony from architect Alfred Sutton have been proven to be baseless. Sutton admitted that he was speculating and guessing in his responses to the questions by plaintiffs counsel. (All! 0-1111 ). After agreeing not to, he confirmed that once his architectural plans for the Huckes had been finalized and approved, his involvement with the project largely ended. He did not go to the job site on any regular basis. (All13). He was not involved in any of the discussions between Mr. and Mrs. Hucke and Kirk about the nature of Kirk's relationship to the project. (Alll6). He did not participate in any discussions about what role Kirk was to play in the project. (A1116). He does not know the details of their arrangement. (Alll7). He would defer to their testimony about the nature of their relationship and he would have no reason to second-guess what they said. (Alll7-1118). (2) Kirk's filing of a mechanic's lien relating to an earlier project for an entirely different customer provides no basis to defeat summary judgment. His arrangement with an entirely separate customer is extrinsic and irrelevant. Nonetheless, in the mechanic's lien Kirk did not claim to be a general contractor for that customer, Mr. Kern, nor does it state that he controlled the means or methods of the work. The Courts below correctly ruled that Kirk's relationship with other customers was not sufficient to raise a triable issue of fact. (Al3). (3) Plaintiff-appellant also appears to assert a new argument on this appeal, regarding type of scaffold that the plaintiff and A&LP were assembling (which counsel now refers to as an "H" scaffold) and whether Kirk had prior notice of it. It does not appear from the record that this was previously argued. Notably, the plaintiff elected to omit a.11y photographs of the scaffold from the Appendix on appeal. However, that is a common type of scaffold. OSHA found no violation with regard to it. (Al015). There is no genuine issue regarding prior notice to Kirk regarding any problem with the erection of the scaffold. Plaintiffs argument on this point is not supported by the record. Mr. Percoco of A&LP did not testifY that Kirk was present when any "H scatrolding" was being erected. He testified that he 6 does not remember Kirk being present. (A920). He does not have any memory of Kirk being present when A&LP and its crew were erecting or moving any scaffolding. (A985). He has no knowledge of Kirk being there when they erected the ridge beam at the other side of the house. (A915-916). Furthermore, any notice to Kirk is irrelevant because Kirk had no authority or control over the work. [This is also addressed in response to Plaintiffs Point II]. ( 4) Mr. Percoco of A&LP did not claim t.'1at Kirk directed the trades in their work. Rather, when asked about Kirk's role interacting with the other trades, he said that it was " ... pretty much the same as me", scheduling them in when to start "so nobody is in each other's way." (A861-862). He did not see Kirk inspecting the work of the other trades. (A862). With regard to the work of A&LP, Mr. Percoco said "He didn't tell me how to do my work, no."(A976). The Courts below correctly recognized that there is no genuine issue here. (5) Mr. Percoco's interaction with OSHA provides no basis to deny summary judgment to Alan Kirk or Alan H. Kirk, Inc. Mr. Percoco confirmed that his company, A&LP, contracted to perfonn the work involved in the accident. (A852). A&LP partnered with the plaintiff to perform the work. The plaintiff (his cousin) was an experienced contractor with his own company. (A133-137). The plaintiff helped him prepare his bid. (A854). Mr. Percoco did not tell OSHA that Kirk was in control of anything. Rather, he simply asked Mr. Kirk to convey a message to the roofers from OSHA. if the roofers were to come in. (A956). (6) The plaintiffs conclusory argument that Kirk must have had prior notice regarding status of the scaffolding and safety equipment at the time of the accident is without merit. This argument is somewhat repetitive of point (3). Aside from its lack of support in the record, it again ignores the fact that Kirk had no authority over the work or the equipment of the Hucke's contractors. This Court has rejected the notion that notice of an unsafe condition can result in liability under the Labor Law against a defendan.t who does not have authority over the work, holding that authority and control is an implicit precondition to liability. See Comes v. N.Y. State Elec. & Gas Corp., 82 N.Y.2d 876, 631 N.E.2d 110 (1993). Mr. Kirk and Alan H. Kirk, Inc. proved that they had so such authority and control. The plaintiff failed to prove otherwise. (7) The Trial Court correctly determined that the inclusion of the initials "GC" on the memo line of a handful of checks is not sufficient to subject either Alan Kirk or Alan H. Kirk, Inc. to liabiiity under the Labor Law. This argument ignores the well-established tenet that it is not a party's title that is determinative, but whether they have control or authority over the work that resulted in the injury. See Walls v. Turner Construction Co., 4 N.Y.3d 861, 831 N.E.2d 408 (2005); 7 Delahaye v. Saint Anns School, 40 A.D.3d 679, 836 N.Y.S.2d 233 (2d Dept. 2007). The Kirk defendants proved that they did not have such authority. The Courts below did not "completely ignore" the plaintiffs argument on this point. It was expressly addressed and rejected by the Trial Court. (A13). The Appellate Division concluded that the plaintiffs submissions failed to raise a triable issue of fact. (8) The plaintiffs argument about Mr. Kirk's background is meritless. Notably, it is not supported by any citation to the record of testimony by Mr. Kirk. The purpose of the argument is to serve as a vehicle to attempt to use the testimony of architect Alfred Sutton regarding an entirely different customer and project. It also overlaps with plaintiffs point 9, infra. This same effort was properly rejected by both of the Courts below. (9). The eftort by the attorney for architect Alfred Sutton to extricate him from an entirely different case (Rankin v. Kern, et al) - relating to a different customer (Mr. Kern) - provides no basis to deny summary judgment to the Kirk defendants. Although Ivir. Sutton signed an affidavit in the Rankin case in support of his motion for summary judgment, which referred to Kirk as the general contractor, the plaintiff herein fails to inform this Court of l\1r. Sutton's testimony on that issue in this case. Mr. Sutton testified that his attorney in the Rankin case prepared the affidavit for him and that his attorney selected the language. (All25- 1126). He conceded that in truth he did not know if Kirk was the general contractor for the Kern project, nor did he know Kirk's actual relationship to the Kern project, stating "Absolutely correct. I really don't know the mechanics of that relationship." (All26). Sutton admitted that he does not know what relationship Kirk had with l\1r. Kern and that he had no involvement at all in their negotiations. (A1116- 111 7). This argument was not ignored by the Courts below as the plaintiff claims. It was addressed and rejected by the Trial Court (see Al3), later affirmed by the Appellate Division. (1 0) Plaintiff's isolated reference to a comment by Cindy Hucke that Kirk would make sure that work was "progressing properly" provides no basis to deny summary judgment to Alan Kirk or Alan H Kirk Inc. A construction manager who reports on the progress of a construction project, creates work schedules and coordinates the different trades is not subject to liability under the Labor Law, and preparing "progress reports" does not constitute authority and control over the injured plaintiff's work. A.rmentano v. Broadway Mall Properties Inc., 30 A.D. 3d 450, 817 N.Y.S. 2d 132 (2nd Dept. 2006). 8 Response to Plaintiff- Appellant's Point II The plaintiffs argument that the Kirk defendants had prior "actual constructive notice" of an unsafe condition or work practice is not supported by the record. Kirk established that he was not present when the scaffold was being assembled at the time of the accident, nor was he there when the police arrived. Nonetheless, prior notice would not provide any basis for liability against Kirk because it did not possess the authority to control the work in which the plaintiff was engaged, or the means and methods by which A&LP and the plaintiff chose to execute their work. See Comes v. N.Y. State Elec. & Gas Com., 82 N.Y.2d 876 (1993). Plaintiffs reliance upon the affidavit of their expert, Mr. Pomerantz, is misplaced. The Pomerantz affidavit is utterly silent as to both Mr. Kirk and to Alan H Kirk Inc. (Al609-1614). In actuality, it exculpates them. Pomerantz confirms that Mr. Hucke entered into a contract with A&LP, that Hucke was obligated to supply all of the materials and all supplies, that the framing work in which the plaintiff was engaged was to be performed as per the Hucke's construction plans from architect Alfred Sutton, that "the plans in question, directed .Mr. Percoco and A&LP as to how to construct the structure." (Al611 ). Both the Trial Court and the unanimous Appellate Division properly recognized that the Pomeranz affidavit provides no basis to deny summary judgment to Kirk. The Second Department's decision in this case is not in conflict with its recent decision in Guanopatin v. Flushing Acquisition Holdings, LLC, 127 A.D. 3d 812 7 N.Y.S. 3d 322 (2d Dept. 2013). That case is readily distinguishable on its facts. The Guanopatin decision specifically notes that defendant HSD Construction admitted that it was the "general contractor" in response to a notice to admit. Moreover, HSD was hired to actually do the construction work and then hired subcontractors to perform the work. The court noted that HSD had the authority to choose the subcontractors who did the work, entered into contracts with them and it therefore had the authority to exercise control over the work. That is not at all similar to the facts of this case. There is no conflict within the Second Department. Plaintiff's reference to Myles v. Craig Claxton, 115 A.D. 3d 654, 981 N.Y.S. 2d 447 (2d Dept. 2014) is also misplaced. The Court in Myles reiterated the tenet that it is not the label given to a defendant that is determinative, but whether they had the authority to control the activity bringing about the injury such that they could avoided or corrected the unsafe condition. The Second Department in Mvles affirmed the dismissal of the claims against the "construction manager" because the evidence showed that it did not possess such control. That is entirely consistent with the case at bar and with the decision in Guanopatin. 9 The plaintiff herein is urging this Court to impose the heavy burdens of the Labor Law far beyond its well-established limitations. Counsel's cite to this Court's decision in Walls v. Turner Constr. Co., 4 New York 3d 861, 831 N.E.2d 408 (2005) is misplaced. In the Walls case this Court noted that defendant Turner was "not tl1e typical construction manager". Turner had entered into a written contract whereby it expressly assumed responsibility for contractual, statutory and regulatory compliance by all of the trade contractors involved in the project. The contract specified that if Turner became aware of any unsafe condition or practice at the site, it was required to immediately instruct the contractor to cease any work which Turner deemed to be unsafe. Furthermore, Turner was contractually obligated to monitor to the performance of all of the contractors and to advise the owner and architect with regard to safety issues. None of those elements are present in this case. The argument posited by the plaintiff herein is directly contrary to the long recognized limitations on liability under the Labor Law established in decisions such as Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 429 N.E.2d 805 (1981); Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y. 3d 280, 803 N.E.2d 757 (2003), Comes v. N.Y. State Elec. & Gas Com., 82 N.Y.2s 876 (1993) a..nd Walls v. Turner Const. Co., 4 N.Y.3d 861 (2005). As noted by this Court in Russin v. Louis N. Picciano & Son; supra, such a standard would make every contractor an insurer for all workers regardless of whether they lacked the ability to direct a..'ld control the work that results in the injury, and thereby contravene the legislative history of the statute itself. The limits on liability of a construction manager noted in Walls v. Turner Const. Co., 4 N.Y.3d 861, 831 N.E.2d 408 remain in effect and there is no need to depart from them in this instance. This Court recently visited the issue in Barreto v. Metropolitan Transportation Authority, 25 N.Y.3d 425, 34 N.E.3d 815 (2015), a case arising out of asbestos abatement work on underground electrical cables. The plaintiff fell into &1 uncovered manhole. The facts in the Barreto case are significantly different from this case and illustrate when the heavy burden of the Labor Law will be imposed. Barreto dealt primarily with the issues of sole proximate cause and whether defendant IMS was entitled to sunmmry judgment. Defendant IMS entered into a contract with the plaintiffs employer, PAL, specifically to serve as PAL's "site safety consuitant". IMS checked the air quality of the manhole and would teH PAL when it was safe for them to proceed with their work. The president of IMS testified that it was part of IMS' specific responsibility to ensure that the manhole cover was in place, and PAL's supervisor provided an affidavit stating that. Also, the First Department bench was divided in its decision and certified a question to this Court for review. This Court concluded "on this 10 record" a jury could find that IMS had the ability to control the activity that brought about the injury. No such facts are present here, nor is there any issue of fact requiring a trial regarding Alan Kirk or Alan H. Kirk, Inc. It is respectfully submitted that if the ·Court were to find in favor of the plaintiff herein and against Kirk, it would essentially negate the limitations set forth in Russin v. Louis N. Picciano & Son, 54 A.D.2d 311 ((1981), Comes v. N.Y. State Elec. & Gas Com., 82 N.Y.2d (1993), Blake v. Neighborhood Hous. Serv. Of N.Y. City, Inc., 1 N.Y.3d 280 (2003) and their progeny. It would have the effect of making every construction manager or consultant an insurer of all workers on a job site even where they are not hired to do the work at issue and they have not been delegated any authority or control over the work or over the actions of the contractors. Acts of general supervision and mere scheduling and coordination of the trades would be sufficient to render them liable under the Labor Law, or to burden the courts with jury trials on issues which historically could be resolved on motion as a matter of law. It is respectfully submitted that the record herein warrants that the order of the Appellate Division should be affirmed. Response to Plaintiff-Appellant's Point III The Appellate Division did not undermine CPLR Rule 3212 (b) by excusing Kirk's inadvertent omission of a single pleading (A200-208) from the underlying motion. Plaintiffs reliance upon Zellner v. Tarnell, 54 A.D. 3d 329, 861 N.Y.S. 2d 598 (2d Dept. 2008) and Hamilton v. City of New York, 262 A.D. 2d 283, 691 N.Y.S. 2d 108 (2d Dept. 2009) is misplaced. As well, in the Hamilton case the movant apparently failed to include any of the pleadings and instead submitted a hearsay document containing a handwritten notation by an unknown person. By focusing their argument here on the decision of the Appellate Division, plaintiffs counsel tacitly concedes that they too did not realize that a single answer (previously designated "proposed answer") had been inadvertently omitted from the multiple pleadings which were submitted with tt'1e Kirk's motion. They did not raise the issue in their opposition to the motion and first mentioned it in their subsequent motion to renew and reargue. Even now, they do not claim any prejudice by the omission or that it in any way affected the outcome of the motion. Kirks' answer in response to the 2005 action was submitted to the Trial Court. (A263-274), as was their initial answer to the 2007 action (A340-349). The complaint in the 2007 action was dismissed but later restored, and then amended pursuant to a July 22, 2010 order by Judge Tannenbaum. (A195-199). That order notes that the Court was in possession of the Kirks' "proposed answer" and specifically states "Ordered that the proposed answer attached to defendant's ll motion papers shall be deemed served nunc pro tunc to the date of service of the motion." (Al98). Furthermore, it was again submitted by plaintiffs counsel to the Trial Court wit.'l their motion to renew and reargue. They also submitted it to the Appellate Division as part of their Appendix. (A200-208). The Appellate Division did not undermine either CPLR Rule 3212 or case law by affirming the dismissal of the plaintiffs action. It acted consistently with established precedent. The inadvertent omission of a pleading is not fatal to a summary judgment motion. In Haveron v. Kirkpatrick, 34 A.D. 3d 1297, 824 N.Y.S.2d 704 (4th Dept. 2006) the Appellate Division held that the lower court properly ruled on the motion because the pleadings had been submitted on a prior motion and they were part of the record on appeal. See also, Van Ebbs v. Town of Verona, 305 A.D. 2d 1035, 758 N.Y.S.2d 751 (4th Dept. 2003). The courts have discretion to overlook the procedural defect of a missing pleading when the record is sufficiently complete. See Welch v. Hauck, 18 A.D. 3d l 096 (3d Dept. 2005), lv. to appeal denied at 5 N.Y.3d 708, 836 N.E.2d 1152(2005); Stiber v. Cotrone, 153 A.D. 2d 1006, 545 N.Y.S.2d 625 (3d Dept. 1989), lv. to appeal denied at 70 N.Y.2d 796, 560 N.E.2d 1226 (1990). Such flexibility is important to the efficient operation of the court system and its allocation of limited time and resources. In the case at bar, the Second Department is not setting an entirely new precedent on this issue as argued by the plaintiff. The record before both the Trial Court and the Appellate Division was complete. This Court has recognized that it is important that the lower courts have the discretion to resolve meritorious summary judgment motions in such circu.:mstances. To hold otherwise would result in further burdening Lhe court system wit.~ claims which should be disposed of. Response to Plaintiff-Appellant's Point IV The Trial Court's decision of April 1, 2013 granting summary judgment to the Hucke defendants (Al87-194) is not in conflict with its decision of April 5, 2013 granting summary judgment to the Kirks. (A9-15). Any supervision by Alan H. Kirk Inc. mentioned in the first decision was general only. The Trial Court reserved its analysis of the actual nature of any supervision provided by Kirk for its April 5, 2013 decision, which specifically addressed the claims against Alan Kirk and Alan H. Kirk Inc. Both of those decisions are also consistent with the Trial Court's January 14, 2014 decision holding that A&LP was the prime contractor for the work at issue, that A&LP had been delegated the authority by the owners to supervise and control the piaintitTs work and that A&LP was the agent of the owner for that work. (A24-28). 12 The order granting summary judgment to A! an Kirk is soundly supported by the record. It establishes that Mr. Kirk acted in his capacity as president of Alan H. Kirk Inc. Plaintiffs counsel chose not to question him about that fact. Mr. Kirk therefore submitted an affidavit on the issue. (A246-247). Plaintiffs counsel also made it clear that when he referred to "llvlr. Kirk", he meant the company. (A645). Any supervision by Alan H. Kirk, Inc. was general only and should not subject it to liability. The work which resuited in the plaintiffs accident was never delegated to Kirk, nor did it assume any control or authority over it. As such, no agency relationship was created which would subject it to liability under the Labor Law. See Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, 803 N.E.2d 757 (2003). General supervisory authority over the work is not sufficient to impose liability under the Labor Law. Fucci v. Plotke, 124 A.D. 3d 835, 3 N.Y.S.3d 67 (2d Dept. 2015); Huerta v. Three Star Construction Co. Inc., 56 A.D. 3d 613, 868 N.Y.S.2d 679 (2d Dept. 2008). The other Departments embrace a similar view. See Hargrave v. LeChase Construction Services, LLC, 115 A.D.3d 1270, 982 N.Y.S.2d 650 (4th Dept. 2014); Temperino v DRA, Inc., 75 A.D.3d 543, 904 N.Y.S.2d 767 (1" Dept. 2010); and Larkin v. Sana-Rubin Construction Co. Inc., 124 A.D.3d 1162, 3 N.Y.S.3d 167 (3d Dept. 2015). The plaintiffs claim that there is now a dispute between the Third Department and the Second Department regarding "contradictory court decisions" is meritless. There is no genuine contradiction in this case. Serafini v Stento, 262 A.D 590, 31 :NYS2d 20 (3d Dept. 1941) does not support the plaintiffs argument. In Serafini a referee prepared a document with some recitals dismissing the case on the merits, which were inconsistent with recitals in an earlier decision dismissing the case for lack of prosecution. The plaintiff appealed. The Third Department held that the plaintiff was entitled to have the court consider the most favorable of the two findings, a'ld it limited its decision to the circumstances of that particular case. Both the Trial Court and the Appellate Division herein correctly rejected the plaintiffs argument that there is a contradiction between the Trial Court's orders of Aprill, 2013 and April 5, 2013. The plaintiffs argument regarding "law of the case" is also without merit. As set forth above, the April 1, 2013 decision gra.."'lting summary judgment to the Huckes does not state that there is any liability whatsover against IVlr. Kirk or Alan H. Kirk Inc. The plaintiffs argument finds no support in Martin v. Cohoes, 37 N.Y.2d 162, 332 N.E.2d 867 (1975). In actuality, the Martin case provided clarification regarding the phrase "law of the case", noting that the term is sometimes a misnomer. It confirmed that the Appellate Division retains its power 13 to correct errors if there are any, even when no objection was previously taken. Here, there was no error to be corrected. The plaintiffs argument provides no basis to reverse the grant of summary judgment to Mr. Kirk or to Alan H. Kirk, Inc. There is simply no basis to the plaintiffs assertion that the Trial Court ignored arguments or evidence. The plaintiff's conclusory and speculative allegations against Kirk are not supported by the record. These arguments were unanimously rejected by four Justices of the Appellate Division. There is no true disparity between the First Department and the Second Department raised by the latter's affirmance of the grant of summary judgment to the Kirk defendants. The First Department's 2015 decision in Larkin v. Sane- Rubin Construction Inc., 124 AD3d 1162, cited above, is consistent with the Second Department's decision i11 this case. Plaintiffs reference to the First Department's decision in Kosovrasti v. Epic, 96 A.D. 3d 695, 948 N.Y.S. 2d 260 (1st Dept. 20 12) is misplaced, as it is readily distinguishable on its facts. In Kosovrasti, defendant Epic testified that it had agreed to be responsible for obtaining construction permits for the work and that the permits .listed it as the general .contractor. No such facts are present here. Conclusion For the reasons set forth above, it is respectfully submitted that the decision of the Appellate Division Second Department, a:ffinn.ing the dismissal of all claims against Alan Kirk and Alan H. Kirk Inc., should be upheld and the plaintiffs appeal should be denied i..n its entirety. Respectfully submitted, 1FM/jnm 14 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ss.: COUNTY OF SUFFOLK) JESSICA MARTIN, being duly sworn, deposes and say: That your deponent is not a party to this action, is over the age of eighteen years and that I reside in Holtsville, New York. That on the 2th day of June, 2016, deponent served the within: RESPONDENT'S BRIEF upon the following: NEW YORK COURT OF APPEALS 20 Eagle Street Albany, New York 12207 (518) 455-7702 Attn: Clerk's Office GATHMAN & BENNETT, LLP Attorneys for Plaintiff JAMES BENNETT 191 New York Avenue 2nd Floor Huntington, New York 11743 (631) 423-7777 WILLIAM POISSON, ESQ. Attorneys for Plaintiff TRACEY BENNETT 1539 Franklin Avenue 3rd Floor Mineola, New York 11501 ANN BALL~ ESQ. Attorneys for Defendants A&LP CONSTRUCTION CO., INC. and ANDREW PERCOCO 357 Veterans Memorial Highway Cormnack, New York 11725 ( 631) 864-8700 SCHONDEBARE & KORCZ, ESQS. Attorneys for Defendants MICHAEL HUCKE and CINDY HUCKE 3 55 5 Veterans ~vlemorial Highway Ronkonkoma, New York 11779 (631) 580-3400 the address designated by said attorneys and individuals for that purpose by depositing a true copy of same enclosed in a post-paid properly addressed wrapper via Federal Express within the State of New York. ANGELA P. PENSABENE Notary Public, State ofNew York No. 02PE6332321 Qualified in Suffolk County Commission Expires October 26, 201 9 COURT OF APPEALS STATEOFNEWYORK ---------------------------------------------------------------------)( JOSEPH BENNETT, as Guardian of JAMES BENNETT, 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 Appellate Division Case Nos. 2013-06108 2014-02911 APL-20 16-00093 HOMES, INC., A&LP CONSTRUCTION COMPANY, INC. and ANDREW PERCOCO, Defendants-Respondents. ----------------------------------------------------------------------)( CORPORATE DISCLOSURE STATEMENT REGARDING ALAN H. KIRK, INC. Pursuant to §500.1(f) ofthe Rules of Practice for this Court, the undersigned counsel for Alan H. Kirk, Inc. certifies that Alan H. Kirk, Inc. is a privately owned corporation with no parents, subsidiaries or affiliates. Its stock is not publicly traded. Dated: June 27, 2016