SUPREME COURT-STATE OF NEW YORK

Transcription

1 SHORT FORM ORDER NELSON BENITEZ, PRESENT: HON. BRUCE D. SUPREME COURT-STATE OF NEW YORK ALPERT Justice TRIAL/IAS, PART 8 Plaintiff, Motion Sequence Index No. 5 18/00 #s 2-3 Motion Date: February 22,2002 -against- WILLIAM PRUSACK, HILDA PRUSACK and PARIS ALUMINUM & VINYL SIDING, INC., Defendants. The following papers read on these applications for summary judgment: Notice of Motion Notice of Cross-motion Answering Affirmation Reply Affirmations Upon the foregoing papers it is ordered that the motion-in-chief by defendants, William Prusack and Hilda Prusack (hereinafter, the Prusacks), for the summary dismissal of the plaintiffs complaint and all cross-claims asserted against them is granted, and the plaintiffs cross-motion for partial summary judgment against the defendants, based upon Section 240( 1) of the Labor Law, is

2 -2- granted to the extent hereinafter provided. This personal injury action arises from a construction site accident, which occurred on December 4, 1998, at Howell Street in Bellmore, New York, a one-family dwelling owned by the Prusacks. It is undisputed that the Prusacks hired co-defendant Paris Aluminum &Vinyl Siding, Inc. (hereinafter, Paris Aluminum) to install siding on their house, and that the plaintiff was, at all relevant times, an employee of a subcontractor, Tolis Aluminum Siding & Windows (hereinafter, Tolis). The plaintiffs bill of particulars alleges that: [tlhe accident occurred as the plaintiff was on a scaffold in the course of his employment and the scaffold collapsed causing him to fall 10 to 20 to the ground. The plaintiffs complaint consists of four causes of action. The first cause of action alleges a claim sounding in common-law negligence; the second, a violation of Section 200 of the Labor Law; the third, a violation of Section 240 of the Labor Law; and the fourth, a violation of Section 24 l(6) of the Labor Law. The Prusacks move for summary judgment based upon the statutory exception to liability provided to the owners of one or two-family dwellings who contract for but do not direct or control the work contained in Sections 240 and 241 of the Labor Law. Defendant,Hilda Prusack, testified at her deposition that she and her husband entered into an agreement with Paris Aluminum to have aluminum siding installed on their house, that they were

3 not present when the work was being performed and had no one who would report to them on the -3- activities undertaken when they were away. (Transcript, pp. 7-8 & 11) Kostas Parisis, the owner and President of Paris Aluminum, testified at his deposition that he entered into an agreement with the Prusacks to have aluminum siding done at their home, and that his salesman, Peter Kyziazis, had all the face-to-face dealings with the Prusacks. (Transcript, pp. 5-7 & 11-12) Plaintiff testified at his deposition that he and his co-workers put up the scaffolding and conceded that he did not engage the property owners in conversation prior to the occurrence on which the instant action is predicated. (Transcript, pp ). In this vein he testified: On one occasion [he] might have seen the lady come out of the house, but [he] did not talk to her. (Transcript, p. 22) He went on to testify that he does not remember the lady of the house ever speaking to anyone from Tolis, and that he never saw the man of the house. (Transcript, pp ) The foregoing testimony serves to demonstrate the Prusacks prima facie entitlement to the relief sought. An owner of a one- or two-family dwelling is subject to liability under Labor Law 240( 1) or $ 241(6) only if he or she directed or controlled the work being performed. (Duarte v East Hi Construction Corporation, 274 AD2d 493,494) Moreover, [n]o liability will attach under the common law or Labor Law where the alleged defect or dangerous condition arises from the contractor of supervisory control over the operation by the party charged. s methods and there is no showing (Kendle v August Bohl

4 Contracting Company, Inc., AD2d 848, [3d Dept.]; see also, Nowak v Kiefer, 256 AD2d 1129,1130, app den 93 NY2d 887, app dism 93 Since the plaintiff has not rebutted the Prusacks NY2d 1000) prima facie showing, the causes of action asserted against them are severed and dismissed. Co-defendant Paris Aluminum opposes the Prusacks motion on the grounds that the plaintiffs employer has yet to be deposed. Counsel argues that: [tlestimony to be elicited at trial and/or deposition may indicate that the [Prusacks] played more of an active part in the supervision, etc. of the work by [Tolis] than is allowed under New York Labor Law Section 240( 1) and 241(6). With that possibility, the [Prusacks] should not be freed of cross claims of [Paris] at this time. (emphasis supplied) A mere hope, the Federal court said in the Hurley case (273 F. Supp. 967, supra), that somehow or other on cross examination credibility of a witness *** can be put in issue is not sufficient to resist a motion for summary judgment. And, continued the court (p. 974), A mere chance that somehow, somewhere, on cross examination or otherwise [the opposing parties] will uncover something which might add to their case but obviously of which now they have no knowledge, is mere speculation and conjecture and is not sufficient in view of the showing made here by the [movant]. (Trails West, 1nc.v Wolff, 32 NY2d 207, 221) To defeat a motion for summary judgment (see, CPLR [fj) a party claiming ignorance of critical facts must first demonstrate that his or her ignorance is unavoidable, and that reasonable

5 attempts were made to discover facts which would give rise to a triable issue (see, Cruz v Otis El. -5 Co., 238 AD2d 540; Rothbort v S.L.S. Mgt. Corp., 185 AD2d 806). (Lumbsy v Gershwin Theater, 282 AD2d 578) Here, counsel for the corporate defendant is silent as to the efforts made to depose non-party witnesses, and, more impor AD2d 157, 160 [lst Dept.]) Perez v Brux Corp., 251 Where, as here, there is no indication what efforts were made to discover facts at variance from those adduced by the moving party, the need for additional discovery may not be asserted as a bar to summary disposition. (see, Monteleone v Incorporated Village of Floral Park, 123 AD2d 3 12; see also, Younger v Spartan Chemical Company, Inc., 252 AD2d 265 [3d Dept.]; Douglas Manor Association, Inc., v Alimaras, 215 AD2d 522) Consequently, the corporate defendant s cross-claims against the Prusacks are severed and dismissed, as well. The plaintiff cross-moves for summary judgment with respect to the third cause of action, exclusively, alleging a violation of Section 240( 1) of the Labor Law. To establish a prima facie case of liability under Labor Law $ 240(l), a plaintiff must establish that the statute was violated and that this violation was a proximate cause of his or her injuries. (Wagner v Barney Skanska Construction Co., Inc., 289 AD2d 324,325) The plaintiff testified at his deposition that the accident occurred when he was on a board that had been placed between scaffolding and a ladder, about eight or nine feet from the ground.

6 -6- (Transcript, pp ) He further testified that he fell when the scaffolding moved and the board loosened and came out. (Transcript, pp. 28,30) The foregoing testimony is sufficient to establish plaintiffs prima facie entitlement to summary judgment under Labor Law 240( 1). (see, Alomia v New York City Transit Authority, AD2d,738 NYS2d 695; La Lima v Epstein, 143 AD2d 886,887) Counsel for Paris Aluminum makes two arguments in opposition to the plaintiffs crossmotion. First, he states, upon information and belief, that the Workers Compensation Board has ruled that the plaintiff was an employee of Tolis, that Tolis had not purchased a policy of Workers Compensation Insurance and that Paris Aluminum, as the general contractor, would pursuant to operation of law (presumably Section 56 of the Workers Compensation Law) have to pay Workers Compensation benefits through its policy. Based thereon counsel contends: Consequently, the question of the applicability of Section 56 of the Workers Compensation Law, and of possible AD-Hoc employee status of the plaintiff, by [Paris Aluminum], remains to be resolved. Under these circumstances, the defense of the Workers Compensation Law s exclusivity of remedy is, arguably available to [Paris Aluminum] and the plaintiffs tort action against [Paris Aluminum] may fail. However, even if Paris Aluminum has to pay Workers Compensation benefits to the plaintiff, it does not follow that the plaintiff is its ad-hoc employee. (see, Sweezey v Arc Electrical Construction Company, Inc., 295 NY 306, 3 11; see also, Cutillo v Emory Housing Corp., 19

7 -7- Misc2d 865) The second argument advanced, which concerns the activity in which the plaintiff was engaged at the time of the occurrence, is substantively flawed. (see, e.g., Ryan v Cenci, 95 AD2d 963) Accordingly, the plaintiff is granted summary judgment against defendant Paris Aluminum on his third cause of action on the issue of latter s liability under Section 240( 1) of the Labor Law. DATED: April 16,2002