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Supreme Court of the State of New York, Bronx CountyJun 18, 2009
2009 N.Y. Slip Op. 51252 (N.Y. Misc. 2009)


Decided June 18, 2009.

Defendants/Third-Party Plaintiffs/Second Third-Party Plaintiffs, SHORE ROAD APARTMENT CORPORATION, and ANKER MANAGEMENT CORP., move for summary judgment dismissing the Plaintiffs' Complaint; and, in the alternative, for summary judgment on their indemnification claims against Third-Party Defendant, PAUL BEAUDIN, relative to their Third-Party Action.

With respect to the Second-Third-Party Action, SHORE ROAD/ ANKER's other motion has been resolved as set forth in the Stipulation dated March 23, 2009 and separate Order dated June 18, 2009.

The Parties:

This is an action to recover damages for personal injuries sustained by Plaintiff, GERARDO VALDOVINOS, (referred to herein as VALDOVINOS) while he was working with an unguarded table saw, in a cooperative apartment building, in Apartment No. B59, located at 485 Pelham Road, New Rochelle, NY. The incident occurred in the course of VALDOVINOS' employment as a laborer for Third-Party Defendant, D. MARCHESE DEVELOPMENT CORP., (MARCHESE) on August 2, 2005.

SHORE ROAD APARTMENT CORPORATION (referred to herein as SHORE ROAD) is the cooperative corporation which owns the building and the land upon which it is situated, as evidenced by the Deed, and as is set forth in the Proprietary Lease. There are 62 cooperative apartments in the subject building.

( See Deed, Exhibit "A" Plaintiffs' Opposition).

( See Proprietary Lease, p. 1, Exhibit "M" to Defendants' moving papers).

ANKER MANAGEMENT CORP., (referred to herein as ANKER), is employed as the managing agent for the premises.

( See Management Agreement, Exhibit "N-1" to Defendants' moving papers).

Third-Party Defendant, PAUL BEAUDIN, (referred to herein as BEAUDIN), is an individual shareholder who owns the 204 shares allocated to Apartment No. B59, and is the Lessee of the subject cooperative apartment. BEAUDIN hired MARCHESE to renovate his kitchen. (BEAUDIN EBT, p. 9-11).

( See Proprietary Lease, Exhibit "M" to Defendants' moving papers).

The Second Third-Party Defendant, THE SIRIUS AMERICA INSURANCE COMPANY, a/k/a DELOS INSURANCE COMPANY, is the insurance company which insured MARCHESE.

The Incident:

Plaintiff GERARDO VALDOVINOS, alleges that, while he was using an unguarded table saw, which did not have an anti-kickback device or spreader, he was injured by the "kick-back" of wood as follows:

"On August 2, 2005, I was operating a Bosch table saw which was resting on the floor and cutting a piece of wood approximately 3 ½ feet long and 2 ½ inches wide. The saw did not have a guard on any part of it. Nor did the saw have an anti-kickback device.

While I was in the process of passing a piece of wood through the saw the wood kicked back and I went forward at which time my left hand came in contact with the saw blade.

As a result of the kickback, I sustained a traumatic amputation of my left index finger."

(VALDOVINOS Affidavit, dated May 12, 2008).


Those parts of the Motion by SHORE ROAD and ANKER which seek to dismiss Plaintiffs' causes of action pursuant to Labor Law § 240(1), 200, and Plaintiff EVELYN CANCHO's cause of action, are deemed moot, and are otherwise granted, since Plaintiffs have agreed to discontinue said causes of action.

The remainder of the motion by SHORE ROAD and ANKER, pertaining to the Plaintiff GERARDO VALDOVINOS' Labor Law 241(6) cause of action, is discussed infra.

LABOR LAW 241(6):

Labor Law § 241(6), "Construction, excavation and demolition work" provides as follows:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith. [emphasis added]

"Labor Law § 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed." Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 348 (1998).

"Once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project [ — someone within the chain of the construction project' — ] caused plaintiff's injury. If proven, the . . . owner . . . is vicariously liable without regard to his or her fault." [emphasis added] Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 350 (1998)

Plaintiff relies on a specific section of the Industrial Code, namely, 12 NYCRR § 23-1.12, which provides, in relevant part, as follows:

"(c) Power-driven saws. (1) Every portable, power-driven, hand-operated saw which is not provided with a saw table, except chain saws and circular brush saws, shall be equipped with a fixed guard above the base plate which will completely protect the operator from contact with the saw blade when the saw is operating and with a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut. Note: Electrically-driven portable saws are also subject to the provisions of section 23-1.10 of this Part (rule). (2) Every power-driven saw, other than a portable saw, shall be equipped with a guard which covers the saw blade to such an extent as will prevent contact with the teeth. In operation, such guard shall rise automatically by pressure from the material being cut or shall be so adjusted that as the saw cuts the material, the distance from the material to the underside of the guard does not exceed one-half inch. The exposed teeth of the saw blade beneath the table shall be effectively guarded. . . . (3) Every table circular saw used for ripping shall be provided with a spreader securely fastened in position and with an effective device to prevent material kickback." [emphasis added]

In the instant matter, Plaintiff VALDOVINOS asserts that the subject table saw did not have a guard, spreader, or anti-kickback device in place. Plaintiff's expert engineer, Stanley Fein, explains that the Bosch table saw is sold with a "blade guard assemble" which is equipped with a "spreader and anti-kickback pawls". The design protects the operator of the table saw, since it prevents contact with the teeth of the blade; and the spreader prevents the "kickback" of wood by "keeping the wood from closing on and pinching the blade and throwing the wood back towards the operator". Plaintiff was injured by the kickback of wood, when Plaintiff was making a rip cut along the length of the wood, because "the blade guard assemble was not present on the table saw at the time of the accident." ( See Affidavit by Stanley Fein, dated May 12, 2008).

Under the circumstances, there remain questions of fact as to whether "owners" of the premises, or "their agents for such work", as those terms are defined pursuant to Labor Law 241(6), would be liable to Plaintiff VALDOVINOS.

Defendants SHORE ROAD and ANKER, respectively, argue that since they cannot be deemed owners, or their agents for such work, respectively, they cannot be found liable.

— SHORE ROAD was an Owner

Although SHORE ROAD concededly owned the building and land, SHORE ROAD argues that it would not be liable as an "owner" within the meaning of Labor law 241(6), since it is a cooperative apartment building owner which did not hire the contractor to perform the work in the individual shareholder's apartment. However, the Courts have established that a cooperative apartment building owner, like SHORE ROAD, is an owner who would be liable for violation of Labor Law 241(6) "regardless of whether it contracted for or benefitted from the work in the shareholder's apartment . . . thus precluding summary judgment on the issue of [its] liability on the causes of action alleging a violation of Labor Law § 241(6)." DeSabato v. 674 Carroll St. Corp. , 55 AD3d 656 (2d Dept. 2008).

Similarly, in another Labor Law case, the cooperative apartment building owner was a defendant charged with liability for a plaintiff's injuries even though it did not hire the painting company that employed the plaintiff who was injured when he fell off of a ladder. Maciejewski v. 975 Park Ave. Corp. , 37 AD3d 773 (2d Dept. 2007). In Maciejewski, supra, as in the case at bar, it was the cooperative shareholders/proprietary lessees who hired the contractor (a painting company) to perform services on the interior of their cooperative apartment. Maciejewski v. 975 Park Ave. Corp. , 37 AD3d 773 (2d Dept. 2007). See Xirakis v. 1115 Fifth Ave. Corp., 226 AD2d 452 (2d Dept. 1996).

The First Department affirmed the holding that the owner of the cooperative apartment building was liable under the Labor Law in a case where a worker fell off a ladder while working on a light fixture in a cooperative apartment, stating: "Defendant 1165 was liable to plaintiff under Labor Law § 240 as the owner of the building in which plaintiff was injured." [emphasis added] Piccione v. 1165 Park Ave., Inc., 177 Misc 2d 1037, 1038-40 (NY Sup. Ct. 1998), aff'd Piccione v. 1165 Park Ave., Inc., 258 AD2d 357 (1st Dept. 1999). In Piccione, this was so even though plaintiff's employer, a "maintenance contractor", was the entity which "alone controlled and supervised the plaintiff's work." Piccione v. 1165 Park Ave., Inc., supra, 258 AD2d 357.

The Court rejected a cooperative corporation's argument that, for purposes of Labor law 241(6), it was not an owner and "should not be held liable [to a plaintiff who was injured while cutting wood,] since it did not contract for the renovation work", in DeNota v. 45 E. 85th St. Corp., 163 Misc 2d 734, 736 (NY Sup. Ct. 1995). The DeNota Court explained that the purpose of the Labor Law statute is to ensure that an injured worker has a recourse: "Labor Law § 241 (6) provides a nondelegable duty on owners and contractors to provide reasonable and adequate protection according to the rules and regulations administratively specified . . . The statutory purpose of affording protection to workers employed in construction, excavation or demolition is to provide a recourse to the workers regardless of the absence of control, supervision or direction of the work . . . Under the circumstances, the court rejects the argument that defendant [cooperative corporation] 45 East 85th Street Corporation is not an owner for purposes of Labor Law § 241(6) and its motion for summary judgment dismissing the Labor Law § 241(6) cause of action against it is denied." DeNota v. 45 E. 85th St. Corp., 163 Misc 2d 734, 736 (NY Sup. Ct. 1995).

It is noted that, in DeNota, supra, as in the case at bar, the shareholder had provided the cooperative corporation with the requisite notification pertaining to the renovation, and obtained its approval to have the work performed. Herein, the managing agent acknowledged that: "all of the documents required by the rules and regulations [were] submitted by or on behalf of Mr. Beaudin." (Ferrarra EBT, p. 26). BEAUDIN stated that he contacted the management company, and his contractor MARCHESE provided the requisite documents, including his contractor's license, signed indemnification agreement, and liability insurance certificates. (BEAUDIN EBT, p. 12, 28-34, 41-43). In contrast, in the case of Brown v. Christopher St. Owners Corp., 211 AD2d 441 (1st Dept. 1995), cited by Defendants, the "plaintiff was hired solely by the tenant [to clean her windows], without the consent or the knowledge of either the owner or managing agent." Brown v. Christopher St. Owners Corp., supra, 211 AD2d at 442.

MARCHESE's Certificates of Insurance name SHORE ROAD and ANKER as additional insureds. ( See Certificates of Insurance, and indemnification agreement, Exhibit "C" to SHORE ROAD/ANKER's separate Motion, dated April 10, 2008, pertaining to the Second-Third-Party Action).

Similarly, the Bosch case cited by Defendants is distinguishable from the case at bar, since therein the Sponsor (the owner of the "unsold shares"), "acting on [his] own, . . . hired plaintiffs' employer", and had the right to make improvements without obtaining anyone's consent. Bosch v. 229 West 97 Realty Assocs., 279 AD2d 373 (1st Dept. 2001).

The Brown case is also distinguishable, because it was dismissed in its entirety against all of the defendants (the owner, managing agent, and shareholder) upon the ground affirmed by the Court of Appeals, namely, that: "the routine cleaning of the five windows of a single cooperative apartment by an individual engaged by the apartment owner is not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240." Brown v. Christopher St. Owners Corp., 87 NY2d 938, 939 (1996).

Moreover, the Court of Appeals has recently reiterated the well-established principal that an owner "may not escape strict liability as an owner based on its lack of notice or control over the work ordered by its tenant." Sanatass v. Consolidated Investing Co., Inc. , 10 NY3d 333 (2008). In Sanatass, the Court held that the: "[property owner] Consolidated seeks to avoid liability under Labor Law § 240 (1) by contending that it is not an "owner" for the purposes underlying the statute. Relying on its lack of knowledge of plaintiff's work, undertaken at the behest of the tenant, Consolidated asks us to import a notice requirement into the Labor Law or, conversely, create a lack-of-notice exception to owner liability. But our precedents make clear that so long as a violation of the statute proximately results in injury, the owner's lack of notice or control over the work is not conclusive — this is precisely what is meant by absolute or strict liability in this context . . . We have made perfectly plain that even the lack of "any ability" on the owner's part to ensure compliance with the statute is legally irrelevant (see Coleman, 91 NY2d at 823)." Sanatass v. Consolidated Investing Co., Inc. , 10 NY3d 333 (2008). Even an out-of-possession premises owner is "liable under § 240(1) notwithstanding its out-of-possession status and asserted lack of active negligence in connection with plaintiff's injury." Mennis v. Commet 380, Inc. , 54 AD3d 641 (1st Dept. 2008).

— ANKER was not an "agent for such work"

To determined whether ANKER, the building's managing agent, should be dismissed from this case requires an analysis of whether it is an "agent for such work" within the meaning of Labor law 241(6).

In a recent case, the First Department explained when a managing agent of a cooperative apartment building can be held liable on a plaintiff's claim under the Labor Law: "Statutory agency turns on the authority to supervise and control the employee . . . and "[o]nly upon obtaining the authority to supervise and control does the third party fall within the class of those having nondelegable liability as an agent under sections 240 and 241" (Russin v Louis N. Picciano Son, 54 NY2d 311, 318, 429 NE2d 805, 445 NYS2d 127)." Voultepsis v. Gumley-Haft-Klierer, Inc., 2009 NY Slip. Op. 1919, 1 (1st Dept. March 2009).

The evidence presented herein as to the "oversight and control of the work" is that it was Plaintiff's employer, Dominic Marchese who "explained [to VALDOVINOS] what [work he] had to do", who checked Plaintiff's work while he was there in the subject apartment, and who provided Plaintiff's tools, including the subject table saw (VALDOVINOS EBT, p. 24-27). The building's managing agent did not have a role in monitoring this renovation project, and never even entered the apartment in connection with the work. (Ferrara EBT, p. 36).

Under the circumstances, ANKER's motion to dismiss the Labor Law 241(6) claims is granted. The remainder of ANKER's motion, which seeks indemnification against BEAUDIN is deemed moot.

SHORE ROAD's Indemnification Claim Against BEAUDIN

In the event that SHORE ROAD is found liable to Plaintiff pursuant to the Labor Law 241(6) claim, SHORE ROAD seeks indemnification from BEAUDIN. It is not disputed that SHORE ROAD would be entitled to indemnification to the extent of the policy limits of BEAUDIN's Allstate insurance policy; and, to this extent, this portion of SHORE ROAD's motion is granted, without opposition.

In sum, Defendant SHORE ROAD's motion for summary judgment is denied with respect to Plaintiff GERARDO VALDOVINOS' Labor Law 241(6) cause of action. The remainder of SHORE ROAD's motion is granted without opposition. However, ANKER is granted summary judgment and this action is dismissed against ANKER.

This constitutes the decision and order of this Court.