SHORT FORM ORDER. Present: Justice NASSAU COUNTY. Defendant(s). The following papers read on this motion: Cross-Motion ~Reply...

Transcription

1 SHORT FORM ORDER SUPREME COC RT - STrlTE OF XEW YORK Present: HO:V. THOMAS P. PHEL_d.yy Justice T?.IAL / IAS, PAXT 19 NASSAU COUNTY FXANCISCO E?,I_G-X_?.TIN~Z, OT,IGIN.kL RETURN DATZ: 0 7/20/00 Plaintiff(s), S'J3KISSION DATE: 10/16/00 INDEX No.: 15704/98 -XJ&_ZSE- WTT -J^i-. T TB_vj F. EWSMUS ESPOSITO a/k/a R_kV ESPOSITO and JOSEPI< PASSAL_%CQUA, Defendant(s). The following papers read on this motion: Notice of Motion... 1 Cross-Motion... 3.Answering Papers... 2,4,5,6,7.~Reply... 8,9 Motion by defendants, William and Cathy Florio for summary judgment pursuant to CPLR 3212 dismissing plaintiff's complaint as well as any cross claims against them, is granted. Cross-motion by defendant, Esoosito for summary judgment pursuant to CPLR 3212 dismissing plaintiff' s complaint and all cross claims against him, is denied. By this action plaintiff seeks to recover damages for personal injuries sustained pursuant to alleged violations of Labor Law Section 200, 240 (1) and 241 (0) of the Labor Law and the common law of negligence. Plaintiff is an ernoloyee of general contractor Plorio hired in connection with building an extension on premises covered by defendants Florio. Plaintiff claims that while he was working in a ditch behind 'lorio's building, the back-hoe machine owned and operated by sub-contractor defendant Passalacqua struck a wall causing the wali to collapse, thereby trapping plaintiff inside c-e excavation hole and seriously injuring him. P.Yich respect to plaintiff s Claim of co_mmon law negligence against Florio, as the owner of the premises w-here the accident took place, under tlhe t1heories of improper hiring and a failure to warn of an unsafe condition, defendants "lorio cazxot be held to have breached the duty to exercise reasonable care in selecting an independent contractor and the contractor's employees. There is no evidence that defendants ~lorio knew or should have known upon reasonable

2 RE: ARIAS MARTINEZ v. FLORIO Page 2. inquiry that the co-defendants might not have been qualified. (See Sanchez v United Rental Equipment Co., Inc.,, 246 AD2d 524, 525 (2nd Dept 1998). Moreover, there is no evidence that the Florios had any actual or constructive notice that there was any type of unsafe condition. (See Saland v Village of Southamption, 242 AD2d 568, 569, Iv to app den 91 NY2d 803). Labor Law Section 200, providing that construction areas should be so arranged to protect the "safety of all persons employed therein or lawfully frequenting such places", states a statutory duty of care which is but a codification of the landowners' and general contractors' common-law duty to provide a safe place to work. An action brought under it is an action for negligence and does not create a basis for recovery in the absence of fault. (Yearke v Zarcone, 57 AD2d 457, 459, Iv to app den 43 NY2d 643). As stated in Ross v Curtis-Palmer, 81 NY2d 494 (at 505): "[wlhere such a claim arises out of alleged defects o r dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation (e.g., Lombardi v Stout, supra, at 295; Kappel v Fisher Bros., 6th Ave. Corp., 39 NY2d 1039, 1041). This rule is an outgrowth of the basic common-law principle that "an owner or general contractor [shlould not be held responsible for the negligent acts of others over whom [the owner or general contractor] had no direction or control" (Allen v Cloutier Constr. Corp., supra, at 2991." The evidence shows that defendants Florio did not exercise any direction and control over the excavation work. While Mr. Florio drew up the renovation plans and filed same, he also testified1 that he hired defendant Esposito who secured the permits; he had no discussion with Esposito regarding whether Esposito would be utilizing any contractor ( p. 25); he never spoke to defendant, Joseph Passalacqua (p. 70); defendant Esposito did not outline the construction strategy to him (pp. 43, 61); the manner of construction was left up to Esposito (p. 61); he had no discussions with Esposito while the work was being done (p. 100); he did not watch the work on the job (pp. 26, 42, 43); he did not see any of the contractors or employees on the day of the incident (p. 44); he 1 Page references are to the deposition defendant William Florio transcript of

3 RE: ARIAS MARTINEZ v. FLORIO Page 3. purchased no materials or supplies for the work (p ; he was never in the crawl space beneath the area of the house that collapsed before the date of the incident (p. 68); and he never saw any indication of stress or settling of the area of the house that collapsed (p. 69). In addition, plaintiff's own testimony 2 confirmed that the people from the residence (i.e. defendants Florio) never gave him any tools or equipment, nor did he see them give any tools or equipment to Esposito (p. 75). Further, plaintiff never spoke to the people that lived in the home and no one from the home ever instructed him regarding the performance of the job (p. 74). Defendant Esposito 3 testified that he hired the subcontractor, Joe Passalacqua (p. 29); Esposito never saw defendants Florio outside the premises during the job (pp. 58, 87); he never saw defendants Florio speak to the plaintiff or Passalacqua (p. 88); defendants Florio provided no tools or equipment during the job and suggested no changes during the excavation; and Esposito never discussed the wall beneath the extension with the Florios (pp. 87, 88). Since defendants Florio had no supervisory control over the performance of the work there is no basis of liability against said owners under Labor Law Section 200. Accordingly, summary judgment is granted dismissing the negligence/labor Law Section 200 r:laim against defendants Florio. Labor Law Section 240 (l), popularly known as the "Scaffold Act" does not apply to this action. There is no showing that plaintiff was working at an elevated level the time of his accident. (See: Bland ~Manocherian, 66 NY2d 452, ; Sarnoff v Charles Schad, Inc., 22 NY2d 180, ). The collapse of a wall upon plaintiff while he was working in a trench next to wall is not the type of elevator - related accident to which Labor Law Sec. 240 (1) applies. (Misseritti v Mark IV Constr., 86 NY2d 87 rearg den 87 NY2d 969; Terry v Mutual Life Ins Co. of New York, 265 AD2d 929 (See Adv. Sheet No. 163, 4/19/2000). Here the base of the wall which collapsed was at same level as the worksite and is not considered a falling object for the purposes of Labor Law Section 240 (1) pertaining to risks created by differences in elevation. (Matter of Sabovic v State of New York, 229 AD2d 586, 587; Zdzinski v North Star Construction, Inc., 242 AD2d 951). Accordingly, that part of defendants' motion for summary judgment dismissing the 2 Page references are to plaintiff Francisco Arias-Martinez the deposition testimony of 3 Page references are to defendant Erasmus Esposito the deposition testimony of

4 RE: ARIAS MARTINEZ v. FLORIO Page 4. Labor Law Section 240 (1) cause of action is also granted. Regarding plaintiff's Labor Law Section 241(6) cause of action against defendants Florio, dismissal is likewise warran.ted. Said subdivision specifically exempts from liability "owners of one and two family dwellings who contract for but do not direct or control the work." As previously found in the context of dismissing plaintiff's negligence/labor Law Section 200 claim, defendants Florio neither directed nor controlled the work being done. Although defendant William Florio provided the plans for the renovation, such activity has been held to fall short of assuming direction and control of the work. (Jenkins v Jones, 255 AD2d 805; Lane v Karian, 210 AD2d 549). Moreover, the mixed residential and commercial use of the property under the circumstances do not preclude defendants Florio from qualifying for the homeowners' exception found in Labor Law Section 241(6). The court has carefully considered the evidentiary facts to determine whether defendants Florio met the site and purpose of work test of the Court of Appeals as applied in Cannon v Putnam, 76 NY2d 644, and Bantoo v Buell, 87 NY2d 366, 367 with respect to the homeowner's exemption. Defendants Florio, together with their two children, have resided at the brick framed cape private house, located in a residential area, since (pp. 6-8). Mr. Florio also works out of the house as a licensed real estate broker and licensed expediter. Prior to plaintiff's accident, he contracted with defendant Esposito to build a second story dormer, with an extension on the back of the house and a full basement (p. 12). The extension would serve to enlarge the dining room and include a corner in the back for use as his office while the dormer would make the home a "mother/daughter" (pp ). Defendant Esposito was paid for the work performed out of the Florios' personal account, not out of Mr. Florio's business account (p. 100). It is thus apparent that the work directly related to the residential use of the property with only incidental use as office space in a corner in the back of the extension. As such, defendants Florio are exempt from liability under Labor Law Section 241(6) (see, Telfer v Garrison Lakeshore Orchards, 245 AD2d 620; Putnam v Karaco Industrial Corg., 253 AD2d 457; compare Krukowski v Steffersen, 194 AD2d 179). 4 Page references are to the deposition transcript of defendant William Florio

5 RE: ARIAS MARTINEZ v. FLORIO Page 5. No genuine issue of fact has been raised herein to require a trial as against defendants Florio. They are therefore awarded summary judgment dismissing plaintiff's claims and any cross-claims asserted against them. Esposito's cross-motion is denied. Issues of fact exist, including whether plaintiff was an employee of Esposito at the time of the accident, which require a trial. This decision constitutes the order of the court. f& /& 0 Dated: :HOhhWV'HE?AN v-cy- J.S.C.