Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE AUGUSTUS C. AGATE IAS PART 24 Justice ------------------------------------x JICHENG LIU, -against- Plaintiff, SANFORD TOWER CONDOMINIUM, INC. SANFORD TOWER CORP., TDC DEVELOPMENT & CONSTRUCTION CORP.,KD INTERNATIONAL DEVELOPMENT CORP., DR. ROBERT SHUMIN ZHOU and DONG HONG SHONG, Index No.: 6136/02 Motion Dated: May 24, 2005 Cal. No.: 14 Defendants. -------------------------------------x The following papers numbered 1 to 24 read on these motions by plaintiff to reargue the court order dated January 26, 2005, by defendants DR. ROBERT SHUMIN ZHOU and DONG HONG SHONG to reargue the court order dated January 26, 2005, by defendants KD INTERNATIONAL and KD INTERNATIONAL DEVELOPMENT CORPORATION to reargue the court order dated January 26, 2005. Papers Numbered Plaintiff=s Notice of Motion, Affirm., Exhibits...1-4 KD=s Notice of Cross-Motion, Affirm., Exhibits...5-8 Zhou=s Notice of Cross-Motion, Affirm., Exhibits...9-12 Plaintiff=s Affirmation in Opposition...13-14 Plaintiff=s Affirmation in Opposition, Exhibits...15-17 KD=s Affirmation in Partial Opposition...18-19 Zhou=s Reply Affirmation...20-21 KD=s Reply Affirmation, Exhibits...22-24 Upon the foregoing papers, it is ordered that these motions are determined as follows: On December 9, 2001, plaintiff fell from a ladder while working in the condominium owned by defendants Dr. Robert Shumin Zhou and Don Hong Shong (hereinafter referred to as AZhou and
Shong@). Plaintiff was working for Jack=s Building Service, the subcontractor for defendant KD International Development Corporation (hereinafter referred to as AKD International@), the general contractor hired by defendants Zhou and Shong to build in the interior space of defendants Zhou and Shong=s condominium, located in defendant Sanford Tower Condominium (hereinafter referred to as ASanford Tower@). All parties moved for various relief which was resolved by court order dated January 26, 2005. In its decision, the Court granted defendants Zhou and Shong=s motion for summary judgment, granted Sanford Tower Condominium=s motion for summary judgment, granted TDC Development & Construction Corp.=s motion for summary judgment, but denied KD International=s motion for summary judgment and denied plaintiff=s motion for summary judgment. The instant motions were made by plaintiff, defendant KD International and defendants Zhou and Shong to reargue their motions and the court order. Plaintiff moves to reargue that portion of the court order that dismissed his claim against defendants Zhou and Shong pursuant to Labor Law ' 240(1). Plaintiff argues that this relief should not have been granted, as it is undisputed that defendants Zhou and Shong owned the condominium as commercial property, thereby negating the homeowner=s exemption under Labor Law ' 240(1). No opposition was presented to this motion. KD International cross-moves to reargue the court order denying its motion for summary judgment. KD International argues that the court should have granted its motion because it cannot be liable under Labor Law '' 200, 240(1) and 241(6). It argues that it is not liable under Labor Law ' 200 or common law theories of negligence because it did not supervise or direct plaintiff=s work. KD International is not liable under Labor Law ' 240(1) because plaintiff was the sole proximate cause of his injuries. Further, plaintiff failed to present a statutory violation upon which his Labor Law ' 240(1) is contingent. It is also not liable under Labor Law ' 241(6) because plaintiff failed to cite an applicable Industrial Code violation. Plaintiff opposes KD International=s motion, arguing that they are merely relitigating issues adversely determined without presenting new facts or law. Plaintiff argues that there are issues of fact as to KD International=s supervision and control over plaintiff=s work. Plaintiff notes that KD International failed to present the contracts that would determine its duties. Further, the deposition testimony of the parties indicate that KD International had authority over safety practices on the work site. Plaintiff further argues that KD International failed to present an expert affidavit to challenge plaintiff=s claim under Labor Law ' 241(6), and there is no evidence that plaintiff
misused the ladder. Zhou and Shong cross-move to reargue the court order and grant their motion for summary judgment with regard to Labor Law ' 200 and common law indemnification against KD International. Zhou and Shong argue that the Court properly dismissed the claim under Labor Law ' 200 because they did not supervise or direct plaintiff=s work. Zhou and Shong also argue that they are entitled to indemnification from KD International because they are non- negligent owners who can only be found vicariously liable for plaintiff=s injuries. Under those circumstances, Zhou and Shong are entitled to indemnification from KD International, the general contractor who had authority to supervise and exercise safety measures on plaintiff=s work. KD International opposes Zhou and Shong=s motion for indemnification, arguing that there is no evidence that KD International was negligent or contributing to causing plaintiff= s accident. Under CPLR ' 2221(d), a motion for leave to reargue should be based upon matters of fact or law overlooked or misapprehended by the Court in determining the prior motion. A motion to reargue is not an opportunity to present new facts or arguments not previously offered, nor is it designed for litigants to present the same arguments already considered by the court. (See Pryor v. Commonwealth Land Title Ins. Co., 17 AD3d 434 [2 nd Dept. 4/11/2005]; Simon v. Mehryari, 16 AD3d 664 [2 nd Dept. 3/28/2005].) To the extent that the Court seeks to clarify its previous decision, the motions to reargue are granted. (See Warlikowski v. Burger King Corp., 9 AD3d 360 [2 nd Dept. 2004]; Edionwe v. Hussain, 7 AD3d 751 [2 nd Dept. 2004].) The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. ( Alvarez v. Prospect Hospital, 68 NY2d 320 [1986].) Once the proponent has met its burden, the opponent must now produce competent evidence in admissible form to establish the existence of a triable issue of fact. (See Zuckerman v. City of New York, 49 NY2d 557 [1980].) It is well settled that on a motion for summary judgment, the court=s function is issue finding, not issue determination. (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Pizzi by Pizzi v. Bradlee=s Div. of Stop & Shop, Inc., 172 AD2d 504, 505 [2 nd Dept. 1991].) However, the alleged factual issues must be genuine and not feigned. (Gervasio v. DiNapoli, 134 AD2d 235 [2 nd Dept. 1987].)
Labor Law ' 200 codifies the common law duty of an owner or contractor to provide construction site workers with a safe working environment, provided that the owner or contractor has control over the performance of the activity causing the injury. (Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993].) Labor Law ' 240(1) imposes a non-delegable duty upon owners and contractors to provide safe work places, and breach of the duty may result in liability notwithstanding the absence of actual supervision or control over the work. (Id.) Labor Law ' 241(6) imposes a nondelegable duty upon homeowners and contractors to provide necessary equipment to maintain a safe working environment, provided there is a specific statutory violation causing plaintiff=s injury. (See Toefer v. Long Island R.R., _N.E.2d_, 2005 WL 756604 [4/5/2005]; Bland v. Manocherian, 66 NY2d 452 [1985]; Kollmer v. Slater Electric, Inc. 122 AD2d 117 [2 nd Dept. 1986].) Plaintiff=s motion to reargue is granted without opposition. It is undisputed that defendants Zhou and Shong owned the premises as commercial property, thereby negating the homeowner exemption under Labor Law ' 240(1). (See Cannon v. Putnam, 76 NY2d 644 [1990].) KD International presented a prima facie entitlement to summary judgment under Labor Law ' 200. Despite its status as general contractor, it did not control or supervise plaintiff=s work. (See Bland v. Manocherian, 66 NY2d 452 [1985]; Kollmer v. Slater Electric, Inc. 122 AD2d 117 [2 nd Dept. 1986].) There is no evidence that KD International provided or directed plaintiff=s use of any equipment. The testimony of Thomas Chang and Andy Lin clearly proves that while KD International may have had the authority to ensure compliance with safety measures, there was no evidence that it was aware of any unsafe practices prior to plaintiff=s accident. Plaintiff failed to present sufficient evidence to rebut KD International=s claim under Labor Law ' 200. Plaintiff=s argument that KD International had sufficient authority over plaintiff=s work is not supported by the evidence or case law. Retention of the right to generally supervise plaintiff=s work, to stop the contractor=s work if a safety violation is noted, or to ensure compliance with safety measures, does not amount to supervision or control of the work site necessary to impose liability under Labor Law ' 200. (Dennis v. City of New York, 304 AD2d 611 [2 nd Dept. 2003].) Plaintiff failed to present specific instances in which KD International exercised control or authority over the work. (Compare Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [1998][issues of fact exist where plaintiff established specific instances of control or authority exercised by
defendant].) Further, plaintiff failed to present evidence of KD International having notice of any dangerous condition. However, KD International failed to present sufficient evidence that it is not liable under Labor Law '' 240(1). It is undisputed that plaintiff was working on an unsupported ladder when he fell and was not provided with any safety equipment. (See Squires v. Robert Marini Builders, Inc., 293 AD2d 808 [3 rd Dept. 2002], lv. denied 99 NY2d 502 [2002]; Blair v. Cristani, 296 AD2d 471 [2 nd Dept. 2002].) Under Labor Law ' 240(1), liability is absolute, regardless of whether the owner or general contractor exercises direction or control over plaintiff=s work. (See Blake v. Neighborhood Housing Services of New York, 1 NY3d 380 [2003]; Ross v. Curtis-Palmer Hydro Elec. Co., 81 NY2d at 500.) While KD is not precluded from asserting defenses of comparative or contributory negligence, KD International failed to prove as a matter of law that plaintiff is the sole proximate cause of his injuries. (See Rizzuto, supra; compare Blake, supra. [Labor Law ' 240(1) claim dismissed because plaintiff admitted his ladder was working properly, had rubber on the legs and the work site was safe]; Edwards v. C & D Unlimited, Inc., 295 AD2d 310 [2 nd Dept. 2002].) Unlike Blake, there are issues of fact as to the slippery floor condition, placement of the ladder and lack of rubber on the ladder that precludes summary judgment. (See Olberding v. Dixie Contracting Inc., 302 AD2d 574 [2 nd Dept. 2003]; Avendano v. Sazerac, Inc., 248 AD2d 340 [2 nd Dept. 1998]; Potter v. NYC Partnership Housing Development Fund, 13 AD3d 83 [1 st Dept. 2004].) KD International also failed to prove as a matter of law that it is not liable under Labor Law ' 241(6). There are issues of fact with regard to the slippery condition of the floor and the ladder, in violation of Industrial Codes '' 23-1.7(d) and 23-1.21, that preclude summary judgment. (See Rizzuto,, 91 NY2d at 351; Montalvo v. J. Petrocelli Const., Inc., 8 AD3d 173 [1 st Dept. 2004].) However, plaintiff may not predicate a Labor Law ' 241(6) on a violation of Industrial Code ' 23-1.5, which has been deemed too general to hold a defendant liable. (See Gordineer v. County of Orange, 205 AD2d 584 [2 nd Dept. 1994].) Plaintiff also may not predicate his Labor Law ' 241(6) claim on a violation of Industrial Code ' 23-1.16, as it is undisputed that he was not provided with a safety belt. (See Avendano, supra.) Plaintiff may not predicate his Labor Law ' 241(6) claim on a violation of Industrial Code ' 23-5, as there is no evidence that scaffolding was involved in plaintiff=s accident. (See Zervos v. City of New York, 8 AD3d 477 [2 nd Dept. 2004].) Further, OSHA violations do not give rise to liability under Labor Law ' 241(6). (See
Greenwood v. Shearson, Lehman & Hutton, 238 AD2d 311 [2 nd Dept. 1997].) Defendants Zhou and Shong failed to demonstrate that they are entitled to common law indemnification as a matter of law. An owner held vicariously liable under the Labor Law is entitled to full common law indemnification from an actively negligent contractor provided that the owner did not direct or control the work performed. (Dawson v. Pavarini Const. Co. Inc., 228 AD2d 466 [2 nd Dept. 1996].) There are issues of fact with regard to whether KD International was negligent in failing to provide a safe working environment that preclude summary judgment. (See Kader v. City of New York [2 nd Dept. 3/14/2005]; Greco v. Archdiocese of New York, 268 AD2d 300 [1 st Dept. 2000].) Further, as the Court previously granted Zhou and Shong=s motion for summary judgment as to Labor Law ' 200, their motion for summary judgment is denied as moot. Accordingly, plaintiff=s motion to reargue is granted and, upon reargument, his motion to reinstate his cause of action against defendants Zhou and Shong under Labor Law ' 240(1) is granted without opposition. Defendant KD International=s motion to reargue is granted and, upon reargument, its motion for summary judgment is granted as to Labor Law ' 200, but denied as to Labor Law '' 240(1) and 241(6). Defendants Zhou and Shong=s motion to reargue is granted and, upon reargument, their motion for summary judgment against plaintiff under Labor Law ' 200 is denied as moot, and their motion for summary judgment against KD International for common law indemnification is denied. Dated: June 10, 2005 Augustus C. Agate, J.S.C.