Erdogen v Sunset Gen. Constr., Inc NY Slip Op 32885(U) November 10, 2014 Supreme Court, Suffolk County Docket Number: Judge: Denise F.

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1 Erdogen v Sunset Gen. Constr., Inc NY Slip Op 32885(U) November 10, 2014 Supreme Court, Suffolk County Docket Number: Judge: Denise F. Molia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* 1] SHORT FORM ORDER COPY INDEX No. -~ll"--=15""'"9..:...::73'---_ CAL. No T SUPREME COURT- STATE OF NEW YORK I.A.S. PART 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA Acting Justice of the Supreme Court X MUSTAFA ERDOGEN, - against - Plaintiff, SUNSET GENERAL CONSTRUCTION, INC., VEYSEL KOPUZ, PETER R. FRIEDMAN, LTD., PETER R. FRIEDMAN AND SUSAN FRIEDMAN, Defendants X MOTION DATE _4~-2~1--1~4 ADJ. DATE Mot. Seq.# MG KEEGAN & KEEGAN, ROSS & ROSNER Attorney for Plaintiff 147 North Ocean Avenue, P.O. Box 918 Patchogue, New York PEREZ & V ARV ARO Attorney for Defendants Friedman 333 Earle Ovington Blvd., P.O. Box 9372 Uniondale, New York SUNSET GENERAL CONSTRUCTION c/o Veysel Kopuz 20 West Montauk Highway Hampton Bays, New York Upon the following papers numbered 1 to _1L read on this motion for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers I - 14 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers ; Other ; (mrd ttfte1 hem i11g eottnsel in sttppo1"t ttnd opposed to the motion) it is, ORDERED that this motion by defendants Peter R. Friedman, Ltd., Peter R. Friedman and Susan Friedman for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing the complaint and any and all cross claims against them is granted. This is an action to recover damages for injuries allegedly sustained by plaintiff on June 21, 2010 at approximately 4:30 p.m. when he fell from a collapsing scaffold at premises located at 24 Stacy Drive, Westhampton Beach, New York. The premises is owned by defendants Peter R. Friedman and Susan Friedman. At the time of his accident, plaintiff was working as a painter for defendant Veysel Kopuz (Kopuz) who owned Sunset General Construction, Inc. (Sunset). By his complaint, plaintiff alleges a first cause of action for common-law negligence and violation of Labor Law 200, 240 and 241, and a second cause of action for violation of Worker's Compensation Law 11. Defendants Peter R. Friedman, Ltd.,

3 [* 2] Page No. 2 Peter R. Friedman and Susan Friedman (defendants Friedman) answered asserting affirmative defenses and cross-claims against their co-defendants. By order dated January 3, 2012, this Court granted plaintiff an order of default as against defendants Sunset and Kopuz. Plaintiff alleges in his bill of particulars that defendants were negligent in, among other things, failing to place protective guarding, barriers, railing, belts, ropes, slings, nets or other safety devices to prevent a fall, and failing to affix the scaffold to the side of the building. Plaintiff also alleges that defendants had actual notice of the unsafe working conditions from direct observation and/or creation of the defective condition of the scaffold, and had constructive notice because the dangerous condition existed a sufficient length of time for defendants through reasonable inspection to have discovered it. Defendants Friedman now move for summary judgment dismissing the complaint and any and all cross claims against them on the grounds that the single-family homeowner's exemption applies as to the Labor Law 240 and 241 claims inasmuch as defendants Peter and Susan Friedman only visited the house on the weekends to observe the progress of the work and did not supervise, direct or control plaintiffs work nor did they provide plaintiff with any tools or equipment; that plaintiff has failed to plead applicable Industrial Code violations requiring dismissal of his Labor Law 241 (6) claims; and that plaintiffs Labor Law 200 and common-law negligence claims must be dismissed as defendants Peter and Susan Friedman did not supervise, direct or control plaintiffs work and did not create or have notice of any dangerous condition that gave rise to the accident. In support of their motion, defendants Friedman submit, among other things, the pleadings, plaintiffs bill of particulars, and the deposition transcripts of plaintiff, defendant Peter Friedman and defendant Kopuz. At his deposition, plaintiff testified that at the time of the accident he had worked for defendant Kopuz as a painter helper for slightly over one month at the subject premises, that defendant Peter Friedman would come to the premises every Friday to observe what they had done during the week, and that defendant Peter Friedman or a few times defendant Susan Friedman, would tell plaintiff, because defendant Kopuz did not speak much English, what needed fixing which plaintiff wrote down and conveyed to defendant Kopuz. He stated that defendant Peter Friedman did not tell plaintiff how to do the fixing or painting, that he was not present on the premises at the time of the accident, and that a few days prior to the accident defendant Peter Friedman told them to finish as quickly as they could. According to plaintiff, he would take photographs of the daily progress of the work and defendant Kopuz would send them to defendant Friedman at his New York City residence and if anything further needed to be done, defendant Friedman would contact them or come to the premises on Friday night. In addition, plaintiff testified that on the day of the accident, defendant Kopuz erected the aluminum 20-foot-high scaffold against the rear of the house with the assistance of another worker, that plaintiff got onto the scaffold by climbing a 24-foot ladder leaning against the house, that he had used the scaffold the prior day, and that he did not know who owned either the scaffold or the ladder. He added that he had brought onto the scaffold two paint buckets, a roller, a brush and a paint brush that had been stored in the garage. According to plaintiff, the accident occurred when the scaffold moved away from the wall of the house while he was standing on one side of the scaffold painting underneath the windows and defendant Kopuz was climbing a four-foot high ladder that he had placed on the other side of the scaffold and against the rear wall of the house. Plaintiff fell off of the scaffold onto bushes. Plaintiff further stated that neither defendant Peter Friedman nor defendant Susan Friedman ever directed plaintiff as to how to perform the work nor did they ever give plaintiff any equipment or tools. He averred that he never received Worker's Compensation benefits as a result of the subject accident.

4 [* 3] Page No. 3 Defendant Kopuz testified at his deposition that he is the owner of defendant Sunset, which performs small repairs, exterior painting and bathroom or kitchen designs, that he had performed minor jobs for defendants Friedman since approximately 2006 or 2007, and that in the summer of 2010 he was hired in his individual capacity by defendants Friedman pursuant to an oral agreement to remove siding and perform repairs at the rear of the house. In addition, he testified that on the date of plaintiff's accident, they were painting the rear exterior wall of the garage using an aluminum scaffold on fiberglass ladders that he and plaintiff had erected. Defendant Kopuz also testified that a friend sent plaintiff to help him with the work, and that plaintiff had been working with him for two or three days. He described the scaffold as being 12 or 14 feet high, twenty feet long and 16 or 18 inches in width, and that each day it would be erected by the placement of two ladders between which the scaffold would be attached to the hanging brackets on each ladder. Defendant Kopuz stated that at the time of the accident, he was standing on the right side of the scaffold and plaintiff was standing approximately two to three feet to his left, that both of them were painting, and that the ladder on the right side of the scaffold leaned away from the wall. Defendant Kopuz did not know why the ladder moved. According to defendant Kopuz, plaintiff tapped him on the shoulder and showed him that the scaffold was moving away from the wall, then plaintiffjumped off the scaffold onto evergreen bushes and defendant Kopuz slid down the wall head first with his right hand against the wall. Defendant Kopuz also stated that the defendants Peter and Susan Friedman were not at the premises on the date of the accident, and that they did not control the method or manner of the work or provide equipment for said work. He further testified that one ladder belonged to him and that the other ladder and the scaffold belonged to his friend. Defendant Kopuz added that there was no Workers' Compensation insurance for either he or plaintiff. At his deposition, defendant Peter Friedman testified that he and his wife own the subject property, that defendant Peter R. Friedman, Ltd. never had title to the subject premises, and that he had hired Sunset Construction to perform work on the house in June 2010 involving a leak near the bathroom window above the garage. According to defendant Friedman, he would communicate with defendant Kopuz's son concerning the work being done because defendant Kopuz could not communicate in English, and he would observe the progress of the work on the weekends. He stated that he received photographs of the progress of the work which were not clear so he instead visited the premises to actually observe the progress of the work. Defendant Friedman did not recall plaintiff's name, stated that defendant Kopuz had several helpers that he spoke with at times in June 2010 but that the only person he recalled speaking with about the job was defendant Kopuz's son, and that the helpers did not always communicate accurately. He also testified that he is a real estate broker and consultant and that he would not have hired defendant Kopuz and his company if they were not insured. Defendant Peter Friedman did not recall seeing any scaffolding erected by defendant Kopuz at the job site and stated that he was not at the premises on the date of the subject accident. It is well settled that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter oflaw, offering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986];. Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Further, the credibility of the parties is not an appropriate consideration for the Court (S.J. Capelin Assocs., Inc. v Globe Mfg. Corp., 34 NY2d

5 [* 4] Page No , 357 NYS2d 478 (1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141AD2d636, 637, 529 NYS2d 797,799 [2d Dept 1988]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324, 508 NYS2d 923, citing to Zuckerman v City of New York, 49 NY2d at 562, 427 NYS2d 595). Labor Law 240 (1) and 241, which impose certain nondelegable safety duties upon "contractors[,] owners and their agents," specifically exempt "owners of one and two-family dwellings who contract for but do not direct or control the work" (see Parise v Green Chimneys Children's Services, Inc., 106 AD3d 970, 971, 965 NYS2d 608 [2d Dept 2013 ]). The homeowner' s exemption was enacted to protect those who, lacking in business sophistication, would not know or anticipate the need to obtain insurance to cover them against liability (see Miller v Shah, 3 AD3d 521, 522, 770 NYS2d 739 (2d Dept 2004]; see also Van Amerogen v Donnini, 78 NY2d 880, 882, 573 NYS2d 443 [1991]; Zamora v Frantellizzi, 45 AD3d 580, 581, 846 NYS2d 196 [2d Dept 2007]). It was not intended to insulate from liability owners who use their one- or two-family houses purely for commercial purposes (see Van Amerogen v Donnini, 78 NY2d 880, 882, 573 NYS2d 443 (1991]; see also Lombardi v Stout, 80 NY2d 290, , 590 NYS2d 55 (1992]). Use of a portion of a homeowner's premises for commercial purposes does not automatically cause the homeowner to lose the protection of the exemption under this statute (see Ramirez v Begum, 35 AD3d 578, 579, 829 NYS2d 117 [2d Dept 2006], lv denied 8 NY3d 809, 834 NYS2d 90 [2007]; Small v Gutleber, 299 AD2d 536, 751 NYS2d 49 [2d Dept 2002]). Instead, the exemption depends upon the site and purpose of the work (see Ramirez v Begum, supra; see also Bartoo v Buell, 87 NY2d 362, , 639 NYS2d 778 [1996];Khela vneiger, 85NY2d333, , 624 NYS2d 566 (1995]; Cannon vputnam, 76NY2d 644, 650, 563 NYS2d 16 (1990]; Stejskal v Simons, 309 AD2d 853, 855, 765 NYS2d 886 [2d Dept 2003]). Plaintiff contends in opposition that defendants Friedman have failed to demonstrate that the house was a one or two-family dwelling to be entitled to the homeowner' s exemption through deposition testimony by defendant Peter Friedman that the house has seven bedrooms and seven bathrooms, that customarily various visitors, including friends and clients, would stay at the house, and that a room in the house was used as a home office, and the lack of evidence as to the extent of the business usage of the premises. In addition, plaintiff contends that defendant Peter Friedman's directions on what to fix and what type of paint to use and his need to approve the work as it progressed and his reimbursement of payments made for paint brushes clearly exceeded the typical involvement of a homeowner and that defendants Friedman directed and controlled the work under Labor Law 200. Plaintiff also contends that his failure to identify an Industrial Code provision is not fatal to his Labor Law 241 (6) claim. In support of his opposition, plaintiff submits a portion of his deposition testimony as well as his own affidavit and the affidavit of non-party Ali Riza Garip. By his affidavit, plaintiff avers that he has since learned that the type of scaffolding used at the time of the accident was a "ladder jack scaffold," which was not attached to the house and should have been secured by defendants. With respect to defendant Peter Friedman's involvement, plaintiff states that he and defendant Kopuz sent daily digital images and defendant Peter Friedman came to personally observe the work performed each week and would tell what he wanted done next, even specifying the type of paint to be used, and that each week he would approve the supplies that they had purchased. Plaintiff adds that much

6 [* 5] Page No. 5 of the work required defendant Friedman's specific instruction to perform it before it could be completed. Ali Riza Garip attests in his affidavit that he had been working at the subject premises a few days prior to plaintiffs accident, that he had another painting job in the vicinity and stopped at the subject premises a few times around lunch to talk to plaintiff and defendant Kopuz, and that while at the premises he recalled the arrival of defendant Peter Friedman and his telling plaintiff "how he should proceed with the siding because he wanted the trim replaced, if there was even a small portion rotted he wanted the entire piece removed and replaced with a single new piece." In reply, defendants Friedman argue that their property is a one-family residence privately owned by them, and not by Peter R. Friedman, Ltd., and submit copies of their mortgage and deed as proof; that the regular visits ofrelatives, friends and clients constitutes typical use of a summer home in Westhampton; that the presence of a home office does not defeat the inference that the home is primarily residential; and that defendant Peter Friedman's input, which was solely related to the results of the work and not the method of performance, and his doing a walk-through and monitoring the progress of the work, did not rise to the level of directing or controlling. They add that insistence on the use of a certain type of paint is merely an aesthetic decision and reimbursement of out-of-pocket expenses for materials is not equivalent to the provision of materials, that they did not create nor have notice of a dangerous condition, and that they did not supervise direct or control plaintiffs work. Initially the Court notes that although a plaintiff asserting a Labor Law 241 ( 6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code (see Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d494, 503, 601 NYS2d49 [1993];KowalikvLipschutz, 81AD3d782, 783, 917 NYS2d 251 [2d Dept 2011 ]), a failure to identify the Code provision in the complaint or bill of particulars is not fatal to such a claim (see Galarraga v City of New York, 54 AD3d 308, 310, 863 NYS2d 47 (2d Dept 2008]; Kelleir vsupreme Indus. Park, 293 AD2d 513, , 740 NYS2d 398 [2d Dept2002]; see also Klimowicz v Powell Cove Associates, LLC, 111AD3d605, , 975 NYS2d 419 (2d Dept 2013]). A plaintiff may make an allegation of an Industrial Code violation in support of a Labor Law 241 ( 6) claim for the first time in opposition to a motion for summary judgment if the allegation "involve[ s] no new factual allegations, raise[s] no new theories of liability, and cause[s] no prejudice to the defendants" (Kelleir v Supreme Indus. Park, supra at 514; see Kowalik v Lipschutz, supra at 783). Here, plaintiff in his opposition papers alleges that defendants violated 12 NYCRR (d)(2)(vi), (h)(l), and ( c ), all involving scaffolds.

7 [* 6] Page No. 6 residential use of the home, even if the work also serves a commercial purpose, that owner is shielded by the homeowner exemption from the absolute liability of Labor Law 240 and 241 (see Bartoo v Buell, supra at 368). Here, the repair work on the exterior of the house being performed by plaintiff and defendant Kopuz involved fixing water damaged areas to protect the Friedmans' personal possessions as well as the contents of the home office (see id at 369; Ramirez v Begum, supra at 579). "[A]ny commercial benefit was ancillary to the substantial residential purpose served." (see Bartoo v Buell, supra at 369). The presence of a home office is not sufficient to deprive a building of its essentially residential character (see DeSabato v 674 Carroll Street Corp., 55 AD3d 656, 868 NYS2d 209 [2d Dept 2008]; Miller v Trudeau, 270 AD2d 683, 704 NYS2d 727 [3d Dept 2000]). Defendants Friedman also established, as a matter of law, that they did not exercise any direction or control over the manner or method of the work being performed (see Arama v Fruchter, 39 AD3d 678, 679, 833 NYS2d 665 [2d Dept 2007]; Duarte v East Hills Constr. Corp., 274 AD2d 493, 494, 711NYS2d182 [2d Dept 2000]). "The statutory phrase 'direct or control' is construed strictly and refers to situations where the owner supervises the method and manner of the work" (Ortega v Puccia, 57 AD3d 54, 59, 866 NYS2d 323 [2d Dept 2008]). Notably, plaintiff and defendant Kopuz testified at their depositions that they were painting at the time of the accident and there is no evidence that defendant Peter Friedman instructed them or was directing them as to how to paint or how to use the scaffold. Plaintiff failed to raise a triable issue of fact regarding defendant Peter Friedman's direction and control over the work being performed which led to his injuries (see Tomecek v Westchester Additions & Renovations, Inc., 97.AD3d 737, 948 NYS2d 671 [2d Dept 2012]). Defendant Peter Friedman's specification of the type of paint to be used and his insistence that more than just the rotted areas of siding be replaced and that he see the weekly progress of the work before the workers continued to the next stage all did not rise to the level of direction and control countenanced by the statute. Moreover, defendant Peter Friedman's reimbursement of the cost of materials did not constitute the furnishing materials or equipment (see generally DiMaggio v Cataletto, 117 AD3d 984, 986 NYS2d 536 [2d Dept 2014]; Murillo v Porteus, 108 AD3d 753, 970 NYS2d 235 [2d Dept 2013]). Thus, defendants Friedman are granted summary judgment dismissing plaintiffs Labor Law 240 and 241 claims based on the homeowner's exemption. Where, as here, plaintiff was injured as a result of alleged defects or dangers in the methods or materials of the work, and not by any dangerous or defective condition on the premises, recovery against the defendants under Labor Law 200 cannot be had "unless it is shown that the party to be charged had the authority to supervise or control the performance of the work"( Ortega v Puccia, supra at 61; Pilato v 866 U.N. Plaza Associates, LLC, 77 AD3d 644, 646, 909 NYS2d 80 [2d Dept 2010]). "A defendant has the authority to supervise or control the work for purposes of Labor Law 200 when that defendant bears the responsibility for the manner in which the work is performed" (Ortega v Puccia, supra at 62). Evidence of mere general supervisory authority to oversee the progress of the work, to inspect the work product, and/or to make aesthetic decisions is insufficient to impose liability under Labor Law 200 (see id.; see also McFadden v Lee, 62 AD3d 966, 880 NYS2d 311 [2d Dept 2009]; Orellana v Dutcher Ave. Bldrs., Inc., 58 AD3d 612, 871 NYS2d 352 [2d Dept 2009], appeal dismissed 12 NY3d 804, 879 NYS2d 48 [2009]; Affri v Basch, 45 AD3d 615, 616, 846 NYS2d 270 [2d Dept 2007]). "[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law 200 or for common-law negligence" (Austin v Consolidated Edison, Inc., 79 AD3d 682, 684, 913 NYS2d 684 [2d

8 [* 7] IndexNo Page No. 7 Dept 2010] [internal quotation marks omitted]; Klimowicz v Powell Cove Assocs., LLC, 111 AD 3d 60 5, 97 5 NYS2d 419, ). Here, the proffered proof demonstrates that even if defendant Peter Friedman controlled the progress of the work by requiring weekly approvals during his weekend visits to the house, said control amounted to general supervisory authority to oversee the progress of the work, to inspect the work product, and/or to make aesthetic decisions (see McFadden v Lee, 62 AD3d 966, 880 NYS2d 311 [2d Dept 2009]; Orellana v Dutcher Ave. Bldrs., Inc., supra; Ortega v Puccia,, supra; Affri v Basch, supra). His involvement was no more extensive than would be expected of the typical homeowner who hired a contractor to renovate his or her home (see Orellana v Dutcher Ave. Builders, Inc., supra; cf Pavon v Koral, 113 AD3d 830, 979 NYS2d 401 [2d Dept 2014]). Notably, defendant Peter Friedman did not instruct plaintiff or defendant Kopuz on how to erect the scaffold, did not recall seeing a scaffold, did not instruct plaintiff or defendant Kopuz on how to paint, and was not present at the premises on the date of the accident such that defendant Peter Friedman lacked notice, actual or constructive, of the allegedly dangerous condition that caused plaintiffs accident (see Mondone v Lane, 106 AD3d 1062, 966 NYS2d 164 [2d Dept 2013]; Rojas v Schwartz, 74 AD3d 1046, 903 NYS2d 484 [2d Dept 2010]; Pascarell v Klubenspies, 56 AD3d 742, 868 NYS2d 702 (2d Dept 2008]). With respect to defendant Susan Friedman, even if she was present at the premises at the time of plaintiffs accident, there is no evidence that she had the authority to exercise supervision or control over the performance of plaintiffs work. In opposition, the plaintiff failed to raise a triable issue of fact (see id.). Defendants Friedman thus established their prima facie entitlement to judgment as a matter of law dismissing plaintiffs Labor Law 200 or common-law negligence claims. Accordingly, the motion is granted and the action is severed and continued against the remaining defendants. FINAL DISPOSITION X NON-FINAL DISPOSITION