Booth v. Ecozone, Inc.
| Citation | 2019 NY Slip Op 31571 (U) |
| Decision Date | 24 May 2019 |
| Docket Number | Index No. 150531/2013 |
| Parties | DOUGLAS BOOTH, Plaintiff v. ECOZONE, INC., MAURICE KOHANBASH, MANAGEMENT INC. a/k/a and/or d/b/a TOP BROADWAY, LTD, and/or TOP BROADWAY, TOP DOG PLUMBING & HEATING CORP., C&T PLUMBING & HEATING INC., ALVA ELECTRICAL INC., and RAPID CONSTRUCTION AND RENOVATION, Defendants |
| Court | United States State Supreme Court (New York) |
DECISION AND ORDER
I. BACKGROUND
Plaintiff sues to recover damages for personal injuries sustained November 21, 2012, when he fell into a stairway opening on premises undergoing renovation at 547 West 149th Street, New York County, owned by defendant Ecozone, Inc., of which defendant Kohanbash was the president and a co-owner. Kohanbash had hired plaintiff to market the premises, so plaintiff was previewing the premises in preparation for marketing them.
In an order dated June 2, 2014, the court (Mendez, J.) consolidated with this action, originally against only Ecozone and Kohanbash, plaintiff's subsequent action under Index No. 155343/2013 against defendants Management Inc., Top Dog Plumbing & Heating Corp., C&T Plumbing & Heating Inc., Alva Electrical Inc., and Rapid Construction and Renovation. Plaintiff discontinued his action against defendants Top Dog Plumbing & Heating Corp., C&T Plumbing & Heating Inc., and Alva Electrical Inc. in stipulations dated November 10, 2014, and March 27, 2017.
Rapid Construction and Renovation, which plaintiff claims was the general contractor for the renovation on the premises where he fell, moves for summary judgment dismissing the complaint and all cross-claims against Rapid Construction and Renovation, C.P.L.R. § 3212(b), which claims it did not create the conditions that caused his injury. Defendants Ecozone and Kohanbash cross-move to amend their answer to include cross-claims against Rapid Construction and Renovation, which was not a party in the original action against Ecozone and Kohanbash. C.P.L.R. § 3025(b). They seek to reiterate Management Inc.'s cross-claims against Rapid Construction and Renovation that were in the subsequent action consolidated with this one. In a stipulation dated March 1, 2019, the parties discontinued with prejudice all claims against Management Inc. and its other business names Top Broadway Ltd and Top Broadway.
Ecozone and Kohanbash move separately for summary judgment dismissing the complaint against these two defendants, C.P.L.R. § 3212(b), on the ground that they did not supervise or control the renovation work and lacked notice of any hazardous condition. For the reasons explained below, the court grants Rapid Construction and Renovation's motion in part and the cross-motion by Ecozone and Kohanbash in part and denies these two defendants' separate motion.
II. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
The complaint claims that defendants' negligent hiring and supervision of their employees and their failure to maintain the premises in a safe condition caused plaintiff's injuries.
Ecozone and Kohanbash oppose Rapid Construction and Renovation's motion for summary judgment based on its omission of their answer and former defendant Management Inc.'s answer. When a party moving for summary judgment fails to include all the pleadings in support of the motion, the court may be constrained to deny the motion for that reason alone. Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 A.D.3d 675 (1st Dep't 2013); Weinstein v. Gindi, 92 A.D.3d 526, 527 (1st Dep't 2012); State of New York v. Metz, 241 A.D.2d 192, 198 (1st Dep't 1998); Matsyuk v. Konkalipos, 35 A.D.3d 675, 676 (2d Dep't 2006). Here, however, the record is sufficiently complete to determine Rapid Construction and Renovation's motion insofar as it seeks dismissal of the complaint against Rapid Construction and Renovation, despite its failure to present the answers of Ecozone and Kohanbash: an omission that inflicts no prejudice on them. C.P.L.R. § 2001; Guaman v. 1963 Ryer Realty Corp., 127 A.D.3d 454, 456 (1st Dep't 2014); Reyes v. Sanchez-Pena, 117 A.D.3d 621, 622 (1st Dep't 2014); Mercado v. Ovalle, 110 A.D.3d 539, 540 (1st Dep't 2013).
To be liable for negligent hiring or supervision, an employer must have received actual or constructive notice of an employee's propensity to engage in the misconduct that caused plaintiff's injury, Fein v. Cook, 153 A.D.3d 1168, 1169 (1st Dep't 2017); Stein v. Douglas Elliman, LLC, 149 A.D.3d 654, 655 (1st Dep't 2017); Vicuna v. Empire Today, LLC, 128 A.D.3d 578, 578 (1st Dep't 2015), or the employee's unsuitability for the work that caused the injury. Cross v. Supersonic Motor Messenger Courier, Inc., 140 A.D.3d 503, 505 (1st Dep't 2016); Gonzalez v. City of New York, 133 A.D.3d 65, 68 (1st Dep't 2015); Nelson v. E&M 2710 Clarendon LLC, 129 A.D.3d 568, 569-70 (1st Dep't 2015). The employee also must have acted outside the scope of the employment in causing plaintiff's injury. Kerzhner v. G4S Govt. Solutions, Inc., 160 A.D.3d 505, 505 (1st Dep't 2018); Thompson v. City of New York, 159 A.D.3d 654, 654 (1st Dep't 2018); Lindsay-Thompson v. Montefiore Med. Ctr., 147 A.D.3d 638, 639 (1st Dep't 2017); Boyd v. City of New York, 143 A.D.3d 609, 610 (1st Dep't 2016).
The unrebutted affidavit by Deodath Motilal, the president of Rapid Construction and Renovation, attests that it performed no work and hired no subcontractors for renovation or any other work on Ecozone's premises. Maurice Kohan, the president of Ecozone, who changed his last name from Kohanbash in the 1990s, testified at his deposition only that Ecozone, the premises' owner, retained Rapid Construction and Renovation as a generalcontractor, and he believed that it hired subcontractors to perform the plumbing, electrical, sheetrock, and heating, ventilation, and air conditioning work. Abraham Gabbay, the sole employee of Dansher Realty whom Kohan contacted to find a general contractor for the premises' renovation, also testified at a deposition only as to a belief that Rapid Construction and Renovation would perform the construction work and hire subcontractors. Neither Kohan nor Gabbay demonstrated any personal knowledge that Rapid Construction and Renovation in fact hired anyone.
Duane Poladian, the president of former defendant C&T Plumbing & Heating, and Houshang Aghajani, an employee of former defendant Alva Electrical, both testified at their depositions that Kohan himself hired their corporations to perform plumbing and electrical work, respectively. Both witnesses were unfamiliar with Rapid Construction and Renovation. It thus demonstrates that it did not hire any employee who created the dangerous condition at the premises as necessary to sustain a negligent hiring or supervision claim. Stein v. Douglas Elliman, LLC, 149 A.D.3d at 655; Chagnon v. Tyson, 11 A.D.3d 325, 326 (1st Dep't 2004).
Ecozone and Kohanbash maintain that they lacked knowledge of Rapid Construction and Renovation's unsuitability to perform the work for which they hired the general contractor. Ecozone and Kohanbash do not identify Rapid Construction and Renovation, however, as the entity responsible for leaving the stairwayopening without railings and unguarded, nor identify the entity or person responsible. As set forth above, Motilal denies that Rapid Construction and Renovation performed any work on the premises. Kohan testified that he did not know any of the workers and therefore whether Rapid Construction and Renovation or a subcontractor installed the stairway or, when a railing was installed around the stairway after plaintiff's fall, who performed that work. The absence of evidence demonstrating who created the condition that caused plaintiff's injury leaves no basis to determine whether Ecozone and Kohanbash lacked notice of that employee's unsuitability. Gonzalez v. City of New York, 133 A.D.3d at 68. See Fein v. Cook, 153 A.D.3d at 1169; Stein v. Douglas Elliman, LLC, 149 A.D.3d at 655; Cross v. Supersonic Motor Messenger Courier, Inc., 140 A.D.3d at 505; Nelson v. E&M 2710 Clarendon LLC, 129 A.D.3d at 569-70.
To support dismissal of the complaint against Rapid Construction and Renovation, Motilal, its president, testified at his deposition that neither he nor any Rapid Construction and Renovation employee ever visited or performed work at Ecozone's premises. Ecozone and Kohanbash as well as plaintiff oppose dismissal of the claims against Rapid Construction and Renovation on the grounds that it is listed as the general contractor on work permit data for the premises, which the parties at oral argument stipulated were authenticated and admissible for purposes of determining the motions for summary judgment.According to both Motilal and Gabbay, since Rapid Construction and Renovation was an insured and licensed contractor, Motilal allowed Gabbay to use its name as the permit applicant, see N.Y.C. Admin. Code §§ 28-401.3, 28-401.9, in exchange for payment of its insurance premiums, but Ecozone and Kohanbash present no evidence of any other payment to Rapid Construction and Renovation for general contracting or any other work. Motilal further allowed the permit application to indicate that Rapid Construction and Renovation was the construction superintendent, despite believing that it would perform only flooring and finishing work. The permit documents indicating that Rapid Construction and Renovation was the general contractor or construction superintendent, however, do not by themselves demonstrate that status. Kosovrasti v. Epic (217) LLC, 96 A.D.3d 695, 696 (1st Dep't 2012); Martinez v. 408-410 Greenwich St., LLC, 83 A.D.3d 674, 675 (2d Dep't 2011); Kilmetis v. Creative Pool & Spa, Inc., 74 A.D.3d 1289, 1291 (2d Dep't 2010); Huerta v. Three Star Constr. Co., Inc., 56 A.D.3d 613, 613 (2d Dep't...
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