Ardaya v. Park & 76TH St. Inc., Index No. 158295/2013

CourtUnited States State Supreme Court (New York)
Writing for the CourtLUCY BILLINGS, J.S.C.
Citation2018 NY Slip Op 33109 (U)
PartiesMARTHA PARADA ARDAYA and STIVENS A. SANQUINO, as Co-Administrators of the Estate of ANTONIO PELAGIO URQUIZA CARDENAS a/k/a ANTONIO URQUIZA, Deceased, Plaintiffs v. PARK AND 76TH ST. INC., MARY L. CARPENTER, EDMUND M. CARPENTER, NORDIC CUSTOM BUILDERS INC., MITCHELL STUDIO, LLC, GUMLEY-HAFT LLC, CUMMINS PAINTING SPECIALISTS INC., ARTHUR C. KLEM, INC., ALKLEM PLUMBING, INC., AA SERVICES LLC, GT CARPENTRY, LLC, CONNECTICUT THERMOFOAM LLC a/k/a CONNECTICUT THERMOFOAM LIMITED LIABILITY COMPANY, ERIN CUSTOM INTERIORS INC., W.M. SANFARDINO ELECTRIC LTD., and PLASTER WORKS, INC., Defendants PARK AND 76TH ST. INC. and GUMLEY-HAFT LLC, Third Party Plaintiffs v. STEPHEN GAMBLE, INC., Third Party Defendant MARY L. CARPENTER & EDMUND M. CARPENTER, Second Third Party Plaintiffs v. STEPHEN GAMBLE, INC., Second Third Party Defendant NORDIC CUSTOM BUILDERS INC., Third Third Party Plaintiff v. STEPHEN GAMBLE, INC., Third Third Party Defendant MITCHELL STUDIO, LLC, Fourth Third Party Plaintiff v. STEPHEN GAMBLE, INC., Fourth Third Party Defendant STEPHEN GAMBLE, INC., Fifth Third Party Plaintiff v. DECLAN O'MEARA and EURO WOOD TRIM, INC., Fifth Third Party Defendants
Decision Date26 November 2018
Docket NumberIndex No. 590917/2013,Index No. 158295/2013,Index No. 595081/2014,Index No. 590180/2014,Index No. 590134/2014,Index No. 595287/2017

2018 NY Slip Op 33109(U)

MARTHA PARADA ARDAYA and STIVENS A. SANQUINO,
as Co-Administrators of the Estate of ANTONIO PELAGIO URQUIZA CARDENAS
a/k/a ANTONIO URQUIZA, Deceased, Plaintiffs
v.
PARK AND 76TH ST. INC., MARY L. CARPENTER, EDMUND M. CARPENTER,
NORDIC CUSTOM BUILDERS INC., MITCHELL STUDIO, LLC, GUMLEY-HAFT LLC,
CUMMINS PAINTING SPECIALISTS INC., ARTHUR C. KLEM, INC., ALKLEM PLUMBING, INC.,
AA SERVICES LLC, GT CARPENTRY, LLC,
CONNECTICUT THERMOFOAM LLC a/k/a CONNECTICUT THERMOFOAM LIMITED
LIABILITY COMPANY, ERIN CUSTOM INTERIORS INC.,
W.M. SANFARDINO ELECTRIC LTD., and PLASTER WORKS, INC., Defendants

PARK AND 76TH ST. INC. and GUMLEY-HAFT LLC, Third Party Plaintiffs
v.
STEPHEN GAMBLE, INC., Third Party Defendant

MARY L. CARPENTER & EDMUND M. CARPENTER, Second Third Party Plaintiffs
v.
STEPHEN GAMBLE, INC., Second Third Party Defendant

NORDIC CUSTOM BUILDERS INC., Third Third Party Plaintiff
v.
STEPHEN GAMBLE, INC., Third Third Party Defendant

MITCHELL STUDIO, LLC, Fourth Third Party Plaintiff
v.
STEPHEN GAMBLE, INC., Fourth Third Party Defendant

STEPHEN GAMBLE, INC., Fifth Third Party Plaintiff
v.
DECLAN O'MEARA and EURO WOOD TRIM, INC., Fifth Third Party Defendants

Index No. 158295/2013
Index No. 590917/2013
Index No. 590134/2014
Index No. 590180/2014
Index No. 595081/2014
Index No. 595287/2017

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

RECEIVED: December 6, 2018
November 26, 2018


NYSCEF DOC. NO. 1052

Page 2

DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

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I. BACKGROUND

Plaintiffs sue to recover damages, including punitive damages, for personal injuries and death sustained by the decedent Antonio Urquiza due to defendants' negligence and violation of New York Labor Law §§ 200, 240, and 241(6). The decedent, an employee of first through fourth third party defendant Stephen Gamble, Inc., was injured and died May 24, 2012, after falling out a window as he worked on a construction project for which defendant Nordic Custom Builders Inc. was the general contractor in a cooperative unit owned by the Carpenter defendants. The unit was on the third story in a building owned by defendant cooperative corporation Park and 76th St. Inc. and managed by defendant Gumley-Haft LLC.

Defendants Park and 76th St. and Gumley-Haft have moved for summary judgment dismissing plaintiffs' claims for violation of Labor Law §§ 200, 240(1), and 241(6), for negligence, and for punitive damages and all cross-claims against Park and 76th St. and Gumley-Haft and for summary judgment on their third party indemnification claim against Stephen Gamble, Inc. C.P.L.R. § 3212(b). For the reasons explained below, the court grants the motion in part.

II. PLAINTIFFS' CLAIMS

A. Labor Law § 200 and Negligence

Labor Law § 200 codifies an owner's duty of care to maintain construction site safety. Rizzuto v. L.A. Wegner Contr. Co., 91 N.Y.2d 343, 352 (1998); Comes v. New York State Elec. & Gas

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Corp., 82 N.Y.2d 876, 877 (1993). If a dangerous condition arising from a contractor's work caused the decedent's injury and death, defendant site owner and its agent may be liable for negligently allowing that condition and violating Labor Law § 200, if they supervised or exercised control over the activity that caused his injury. Rizzuto v. L.A. Wegner Contr. Co., 91 N.Y.2d at 352-53; Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d 621, 627 (1st Dep't 2015). See Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d at 877-78; Ocampo v. Bovis Lend Lease LMB, Inc., 123 A.D.3d 456, 457 (1st Dep't 2014); Francis v. Plaza Constr. Corp., 121 A.D.3d 427, 428 (1st Dep't 2014); Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d 139, 144-45 (1st Dep't 2012). They also may be liable for negligence and violation of the statute if they received actual or constructive notice of an unsafe condition on their premises that caused the decedent's injury. Maggio v. 24 W. 57 APF, LLC, 134 A.D.3d at 626. See Santos v. Condo 124 LLC, 161 A.D.3d 650, 656 (1st Dep't 2018); Cappabianca v. Skanska USA Bldg. Inc., 99 A.D.3d at 144. Park and 76th St. and Gumley-Haft contend that they were not negligent and are not liable under Labor Law § 200 because the evidence establishes that they did not supervise or control the decedent's work and did not receive notice of any unsafe condition in the area where the decedent was injured and died.

Plaintiff opposes dismissal of these claims based on the order dated May 22, 2018 (Mendez, J.), which denied plaintiffs' motion for summary judgment on their Labor Law § 200 claim and is

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law of the case. That decision, however, concluded only that plaintiffs had failed to establish "that the Carpenters, Mitchell, Park and 76th Street, Inc., and Gumley-Haft, LLC, exercised authority or controlled the manner in which the work was performed." Aff. in Opp'n of Steven I. Brizel Ex. B, at 4.

The law of the case doctrine precludes parties in an ongoing action from relitigating issues resolved after a full and fair opportunity to address them. Goldstein v. Zabel, 146 A.D.3d 624, 631 (1st Dep't 2017); Delgado v. City of New York, 144 A.D.3d 46, 53 (1st Dep't 2016); Carmona v. Mathisson, 92 A.D.3d 492, 493 (1st Dep't 2012). Plaintiffs' failure to establish that Park and 76th St. and Gumley-Haft, among other defendants, exercised authority to control the decedent's work does not equate to an affirmative showing by Park and 76th St. and Gumley-Haft that they never exercised such authority and control. Park and 76th St. and Gumley-Haft did not previously seek the dismissal of plaintiffs' Labor Law § 200 and negligence claims now sought. Nor did any party in litigating plaintiffs' prior motion for summary judgment on the Labor Law § 200 claim or the court in deciding that motion rely on any of the evidence that Park and 76th St. and Gumley-Haft now rely on to support dismissal of that claim and plaintiffs' negligence claim. Goldstein v. Zabel, 146 A.D.3d at 631; Plaza PH2001 LLC v. Plaza Residential Owner LP, 98 A.D.3d 89, 99 (1st Dep't 2012); Carmona v. Mathisson, 92 A.D.3d at 493; Board of Mgrs. of Europa Condominium v. Orenstein, 1 A.D.3d 206, 207 (1st Dep't 2003).

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Park and 76th St. and Gumley-Haft present the deposition testimony by employees of defendant Nordic Custom Builders, the general contractor, and Stephen Gamble, Inc., that Declan O'Meara served as the site supervisor and directed the employees of Stephen Gamble, Inc., to stain the window jambs in the library of the Carpenters' unit, where the decedent fell out the window. O'Meara himself admitted that Nordic Custom Builders hired him as the site supervisor. He specifically directed the decedent not to stand on a finished radiator cover to perform his work. The foreman for Stephen Gamble, Inc., Marcello Urquiza, carried out its employees' work on the window jambs.

Park and 76th St.'s building superintendent testified that he was not even aware that Stephen Gamble, Inc., employees were working on the windows or standing on the radiator cover, was not in the unit when any work was being performed on the windows, and did not direct any workers how to perform their work in the unit. Gumley-Haft's manager for the building testified that Gumley-Haft did not supply any materials or equipment for the work in the unit.

Park and 76th St. and Gumley-Haft thus present evidence that O'Meara, on Nordic Custom Builders' behalf, and Stephen Gamble, Inc., not Park and 76th St. or Gumley-Haft, supervised and controlled how and where the decedent performed work on the project and were aware of the conditions surrounding the windows where he was working. Absent any contrary evidence, the record supports dismissal of plaintiff's Labor Law § 200 and negligence

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claims against Park and 76th St. and Gumley-Haft. Matter of 91st St. Crane Collapse Litig., 133 A.D.3d 478, 479...

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