Plaintiff Attorney: Kantrowitz, Gordhamer & Graifma Defendant Attorney: Cascone & Kluepfel
Kantrowitz, Gordhamer & Graifma
Cascone & Kluepfel
Plaintiff Exequiel Paganini moves for an order, pursuant to CPLR 3212, granting partial summary judgment on his Labor Law § 240(1) claim on the issue of liability against defendant Congregation Eretz H'Chaim. Defendant, in turn, cross-moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint.
This action arises out of an incident which occurred on or about August 16, 2008, when the plaintiff Exequiel Paganini (plaintiff) was allegedly injured when he fell off of a ladder while working at premises located at 71 Hasbrouck Road, Woodroune, New York (the premises). Defendant Congregation Eretz H'Chaim, a not-for-profit organization, ("the defendant" or "the Congregation"j) is the owner of the premises in question. The premises was comprised of approximately 20 to 25 units/ residences which were typically used during the summer months of July and August by various members of the Congregation. The Congregation members resided in the units for the purpose of religious study and vacation. Also located upon the property was a two-story main residence, which contained a kitchen, bathroom, and study upon each floor, as well as three bedrooms on the first floor and two upon the second floor. During her deposition, Congregation member Tzippy Scheebalg (not a party herein), testified that she and her husband and their children, resided within the main residence and were the sole occupants of that unit during the months of July and August of 2008. In or about August 2008, Ms. Scheebalg called Mike Goboiy, a handyman hired by the Congregation, to fix a leaky roof at the premises. At the time of the accident, the plaintiff was employed by Goboiy.
Goboiy and the plaintiff arrived at the premises on or about August 16, 2008 in order to repair the roof. During his deposition, the plaintiff testified that they were supposed to patch the siding and check the roof of the main unit, as well as the roof of another unit, in addition to other work on the premises (Paganini Dep, at 81). Upon his arrival, the plaintiff found a 12-foot aluminum extension ladder in the yard behind the house and placed it up against the side of the main entrance. According to the plaintiff, the ladder had been in the grass and was therefore wet. The plaintiff did not dry off the ladder before he used it. Nor did he tell Goboiy that it was wet prior to using it. The plaintiff placed the ladder on the grass near the roof of the premises where there was a little incline. Before he climbed up the ladder, the plaintiff claimed that he shook it a little bit to make sure it was steady (id. at 113). He then climbed up the ladder and began working on the roof for about 30 to 35 minutes. When he was finished he began descending the ladder. According to plaintiff, when he reached the fifth rung from the bottom of the ladder, his left foot slipped causing him to lose his balance and the ladder moved/shifted a little bit to the left. As a result, the plaintiff fell to the ground but the ladder did not fall (id. at 118-119). The plaintiff additionally testified that the bottom of the legs of the ladder did not have any rubber footing on them (id. at 80) and that the ladder was not secured or held by anyone at the time of the accident. The plaintiff further testified that he did not know who owned the subject ladder.
Plaintiff subsequently commenced this action against the defendant asserting causes of action for violations of Labor Law §§ 200, 240(1) and § 241(6), as well as common-law negligence. Plaintiff has moved for partial summary judgment on his Labor Law § 240(1) cause of action. Defendant has cross-moved for summary judgment dismissing the complaint against it on the ground that it is entitled to the homeowner exemption under Labor Law §§ 240(1) and § 241(6), and that it is not liable under the Labor Law § 200 and common-law negligence causes of action because it did not direct or control plaintiff's work.
It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Zuckerman, 49 NY2d at 562). Summary judgement, however, is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez, 68 NY2d at 324; see also Herrin v Airborne Freight Corp., 301 AD2d 500, 505-01 ).
Labor Law § § 240(1) and 241(6)
The defendant seeks summary judgment dismissing the complaint insofar as asserted against it on the grounds that it did not supervise the plaintiff's work and that the homeowner's exemption of Labor Law §§ 240 and 241 applied to the subject premises.
"Labor Law § 240 (1) imposes absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure" (Bland v Manocherian, 66 NY2d 452, 459 ). The homeowners' exemption was enacted to protect owners of one- and two-family dwellings who are not in a position to realize, understand, and insure against the responsibilities of absolute liability imposed by Labor Law § 240 (1) and § 241 (6) (see Cannon v Putnam, 76 NY2d 644, 649 ). The exemption, therefore, does not apply to owners who use their single-family residences exclusively for commercial purposes because such homeowners are not deemed lacking in the sophistication or business acumen necessary to insure against the absolute liability imposed by the Labor Law (Morgan v Rosselli, 23 AD3d 356, 356-357 ; Lawless v Kera, 259 AD2d 596, 597 ). To receive the protection of the homeowners' exemption, the defendant has the burden, inter alia, of showing that "the work was conducted at a dwelling that is a residence for only one or two families" (Chowdhury v Rodriguez, 57 AD3d 121, 126 ; see Lombardi v Stout, 80 NY2d 290, 297 ).
Further, in the case of a mixed use, "[t]he determination whether the exemption is available to an owner in a particular case turns on the site and purpose of the work"(Khela v Neiger, 85 NY2d 333, 337 ; see Morocho v Marino Enters. Contr. Corp., 65 AD3d 675, 675-676 ; Umanzor v Charles Hofer Painting & Wallpapering, Inc., 48 AD3d 552, 553 ; Ramirez v Begum, 35 AD3d 578, 578 ). In determining whether or not to apply the dwelling exemption to those situations which may involve a mixed use, the Court of Appeals has instructed that a strict construction is to be applied when interpreting Labor Law §§ 240(1) and 241. In Van Amerogen v Donnini, 78 NY2d 880, 882 (1991), the plaintiff was injured while working on the roof of a one-family house which, since the time of purchase, had been used solely for rental to tenants. In that case, the owners of the house, who did not occupy the premises themselves, argued that they were entitled to the benefit of the exemption since the property was a one-family dwelling. The Court of Appeals rejected this argument, and concluded that the dwelling exemption should not be "expanded to encompass homeowners who use their one- or two-family premises entirely and solely for commercial purposes" (Van Amerogen, 78 NY2d at 882). Moreover, the Court noted that the exemption "may properly be extended only so far as [the] language . . . fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception" (id.; see also, Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, aff'd, 61 NY2d 652).
In support of its cross motion, the defendant argues that the leak repair work underway at the time of the plaintiff's accident served as a purely residential purpose. In this regard, the defendant points out that at the time of the accident, there was no large scale construction or renovation project underway. Rather, the defendant maintains that the plaintiff was called to fix a leaky roof of premises, which it claims was used exclusively as a summer vacation residence of Congregation members, Mr. and Mrs. Schneebalg, and their children. Defendant therefore maintains that the purpose of the work (fixing the leaky roof) directly relates to the residential use of the premises rather than that of a commercial nature.
In opposition, the plaintiff contends that the corporately owned property is not a single or two-family dwelling for Labor Law purposes, but a bungalow colony zoned for recreational usage. In this regard, the plaintiff notes that the subject property, consisting of 20 to 25 bungalow units, is where approximately 50 to 100 congregation members pray, study and vacation during the summer. In support of his contention, the plaintiff has submitted a copy of the zoning search results, dated October 5, 2010, for the subject premises which states that the property was zoned for "Rec-1", which is recreational usage. The plaintiff also relies upon the deposition testimony of Ms. Schneebalg, wherein she stated that the property was primarily used by the Congregation members for summer vacations and studying only during the months of July and August. Plaintiff therefore maintains that the property (summer vacation bungalow colony) was not used by the defendant for residential purposes, and, as such, is not entitled to the exemption.
Here, based upon a review of the record, the court finds that the defendant has failed to demonstrate its prima facie entitlement to judgment as a matter of law with respect to its claim that it is entitled to the homeowner's exemption of Labor Law §§ 240 and 241. In this regard, the defendant has not established as a matter of law that the premises in question was a single or two-family dwelling used as a residence, rather than an income producing vacation rental property. Although the record evidence establishes that the individual units as well as the main residence on the premises were used by the Congregation members throughout the summer months of July and August, there was no showing that the members were not required to pay any type of fee for such usage of the property. The defendant has merely submitted the deposition testimony and affidavit of one if its Congregation members, Ms. Schneebalg, who testified that she, as well as other Congregation families, came to the premises for the purpose of religious study and vacation during the summer months of July and August, and that she and her family stayed in the main residence during the months of July and August of 2008.
Contrary to the defendant's contention, it has failed to establish that the subject premises is a "one or two-family dwelling" as contemplated by the legislative exemption.Rather, the subject premises here appears to be more akin to a summer camp which purposes was for religious study and vacation for the various Congregation members (see Van Amerogen v Donnini, 78 NY2d 880). Moreover, using the site/purpose analysis (see Cannon v Putnam, 76 NY2d 644, 650), the court finds that the repairing of the roof was being performed to benefit defendant's use of the premises as a summer vacation property, and is, therefore, more of a commercial than a residential usage (see Lombardi v Stout, 80 NY2d 290, 297; Van Amerogen, 78 NY2d at 882). The court therefore finds that the Congregation, as the owner of the premises, failed to establish, prima facie, that its use of the dwelling qualified for the protection afforded by the homeowners' exemption. Accordingly, that branch of the defendant's cross motion seeking to dismiss plaintiff's Labor Law §§ 240(1) and 241(6) causes of action is denied. Plaintiff's Motion For Summary Judgment
Plaintiff argues that he is entitled to summary judgment in his favor on the Labor Law § 240(1) claim because he was caused to perform his work on a wet ladder that did not have any rubber feet which moved/shifted thereby causing him to fall, and that this was the proximate cause of his accident.
Labor Law § 240(1) requires contractors and owners to provide safety devices in order to protect against "such specific gravity-related accidents as falling from height or being struck by a falling object that was improperly hoisted or inadequately secured" (Ross v Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494 ). "[T]he availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures" (Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 958-959 ; see Nimirovski v Vornado Realty Trust Co., 29 AD3d 762, 762 ). "In order to prevail on a Labor Law § 240 (1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries" (Rudnik v Brogor Realty Corp., 45 AD3d 828, 829 ; see Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 287 ). "Labor Law § 240(1) requires that safety devices, such as ladders, be so constructed, placed and operated as to give proper protection to a worker"(Klein v City of New York, 89 NY2d 833, 834—835 ). "The failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240(1)"(Wasilewski v Museum of Modern Art, 260 AD2d 271 ).
Here, the court finds that the plaintiff has established his prima face entitlement to summary judgment on the issue of liability on his Labor Law § 240(1) cause of action insofar as asserted against the defendant (see Gonzalez v AMCC Corp., 88 AD3d 945 ). In this regard, the plaintiff has submitted evidence demonstrating that the ladder he used in performing repairs on the defendant's premises was defective in that it lacked rubber footing, and moved/shifted, causing him to fall. The plaintiff testified at his deposition that the ladder lacked rubber on its feet, and that it was unsecured at the time of the accident. He further stated in his deposition testimony and affidavit, which are both submitted herein, that the ladder moved/shifted a little bit to the left just before he fell, thus establishing a violation of Labor Law § 240(1) (see Mingo v Lebedowicz, 57 AD3d 491 ; Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d 624 ; Rivera v Dafna Constr. Co., Ltd., 27 AD3d 545 [2006 ]; Schuler v Kings Plaza Shopping Ctr. & Mar., 294 AD2d 556 ; Mannes v Kamber Mgt., 284 AD2d 310 ). There is no evidence that anyone or anything was securing the extension ladder at the time of the accident or that the defendant provided him with any safety devices or equipment to prevent him from falling (see Rivera v Dafna Constr. Co., Ltd., 27 AD3d 545 ).
On the facts presented, the court finds that the plaintiff has established his prima facie entitlement to summary judgment on the issue of Liability on his Labor Law § 2401(1) as a result of his falling from an unsecured extension ladder (see, Gonzalez, 88 AD3d 945; Durmiaki v International Business Machines Corporation, 85 AD3d 960 ). In opposition, the defendant has failed to raise a triable issue of fact as to whether the ladder failed to provide adequate and proper protection to the plaintiff. Accordingly, plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim is granted. Labor Law § 200 and Common-Law Negligence
"Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site" (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 ; McKee v Great Atl. & Pac. Tea Co., 73 AD3d 872, 873 ). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 AD3d 54, 61 ). Where, as here, a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (McKee v Great Atl. & Pac. Tea Co., 73 AD3d at 874; see Herrel v West, 82 AD3d 933, 933 ).
Here, the owner defendant has established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have the authority to supervise or control the roofing work performed by the plaintiff, which gave rise to the injury (see Lombardi, 80 NY2d at 294—295; McKee, 73 AD3d at 874; Chowdhury v Rodriguez, 57 AD3d 121, 127 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, that branch of the defendant's cross motion to dismiss plaintiff's Labor Law § 200 and common-law negligence claims is granted.
Accordingly, it is
ORDERED that the portion of the cross motion for summary judgment by defendant to dismiss plaintiff causes of action pursuant to Labor Law §§ 240(1) and 241(6) is denied; and it is further
ORDERED that the portion of the cross motion for summary judgment by defendant to dismiss plaintiff's cause of action pursuant to Labor Law § 200 and common-law negligence is granted; and it is further
ORDERED that the portion of the motion for summary judgment by plaintiff for summary judgment on the issue of liability of defendant pursuant to Labor Law § 240(1) is granted.
ORDERED that the Clerk enter Judgment accordingly.
The foregoing constitutes the decision and order of the court.
J. S. C.