Calix v. Fortuna Pheasant Close LLC

• Decision Date: 23 April 2018
• Docket Number: Index No. 607923/2015,Motion Sequence Nos. 005,006,007,008
• Citation: 2018 NY Slip Op 34410 (U)
• Parties: ERICK CALIX and JORGE BANEGAS, Plaintiff, v. FORTUNA PHEASANT CLOSE LLC, and CONSTRUCTION MANAGEMENT & DESIGN INC., Defendants.
• Court: New York Supreme Court

2018 NY Slip Op 34410(U)

ERICK CALIX and JORGE BANEGAS, Plaintiff, v. FORTUNA PHEASANT CLOSE LLC, and CONSTRUCTION MANAGEMENT & DESIGN INC., Defendants.

Index No. 607923/2015, Motion Sequence Nos. 005, 006, 007, 008

Supreme Court, Nassau County

April 23, 2018

Unpublished Opinion

DECISION AND ORDER ON MOTION

Julianne T. Capetola, Judge

The following papers have been read on these motions:

Defendant Metro Resources, LLC's Notice of Motion and Supporting Documents (Mo. Seq. 005)

Plaintiff Erick Calix's Notice of Motion and Supporting Documents (Mo. Seq. 006)

Defendant Fortuna Pheasant Close LLC's Notice of Motion and Supporting Documents (Mo. Seq. 007)

Plaintiff Erick Calix's Notice of Cross-Motion and Supporting Documents (Mo. Seq. 008)

Defendant Fortuna Pheasant Close LLC's Reply Affirmation

Plaintiff s Amended Affirmation in Reply to Cross-Motion

Defendant Metro Resources, LLC has moved by notice of motion for an order pursuant to CPLR §3212 granting summary judgment and, accordingly, dismissing the complaint as against them. That motion was not opposed. Plaintiffs have moved for an order compelling Defendant Fortuna Pheasant Close LLC (hereinafter "Defendant Fortuna") to comply with certain outstanding discovery. Defendant Fortuna has moved by notice of motion for an order pursuant to CPLR §3212 granting summary judgment and, accordingly, dismissing the complaint as against them and has opposed Plaintiffs' discovery motion therein. Plaintiffs have cross-moved for an order pursuant to CPLR §3212 granting them summary judgment. Defendant Fortuna submitted reply papers, Plaintiffs replied with respect to the cross-motion and the motions were deemed submitted April 17, 2018.

As a threshold matter, inasmuch as the motion by Metro Resources LLC is sufficiently plead and unopposed, their motion is granted and the complaint is dismissed as against that Defendant.

Though the next filed motion chronologically was Plaintiffs' discovery motion, the summary judgment motions must be addressed first.

The underlying action involves an action for personal injuries sustained by two construction workers who were injured while working on a jobsite at a property owned by Defendant Fortuna on or about May 13, 2014. Defendant Fortuna's principal Morris Moinian, had purchased the subject property in Southhampton as a vacation home and was demolishing and rebuilding the single-family dwelling. Construction Management &Design, Inc. (hereinafter "Defendant CMD") is a corporate title for Thomas Bucco's construction company. Thomas Bucco contracted with Defendant Fortuna and Morris Moinian to work as what he characterized as an "owner's rep" overseeing the day to day work on the construction of the house. Numerous other contractors were employed to perform the various aspects of the project.

CPLR §3212(b) states, in relevant part, that a motion for summary judgment shall be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party".

"The standards regarding summary judgment motions are familiar and fundamental. The party moving for summary judgment 'bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law' (Holtz v Niagara Mohawk Power Corp., 147 A.D.2d 857, 858). Once such a showing has been established, the 'burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact' (Mahar v Mahar, 111 A.D.2d 501, 502; see also, Ferber v Sterndent Corp., 51 N.Y.2d 782; Cusano v General Elec. Corp., 111 A.D.2d 557). General conclusory statements, expressions of hope, and repetition of the allegations in the pleadings do not constitute evidentiary proof substantiating the party's claim and, therefore, are insufficient to defeat a summary judgment motion". Fresh Meadows Country Club v. Lake Success, 158 A.D.2d 581 (2d. Dept. 1990).

Defendant Fortuna claims an entitlement to summary judgment based upon the homeowner's exception contained in Labor Law §240 and §241.

Labor Law §240 (1) states, "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed", (emphasis added)

Labor Law §241 states, "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements ... 6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith", (emphasis added)

Defendant Fortuna argues that, based upon the statutory language, which it has been well-settled is to be strictly construed, neither the corporate entity, Defendant Fortuna, nor its principal, Morris Moinian, exerted the level of direction or control of the work performed at the subject jobsite that would bring them outside the scope of the homeowner's exemption.

"In order for an owner of a one- or two-family residential dwelling to be subject to liability under Labor Law §§ 240 or 241, the plaintiff must prove that the owner 'directed] or controlled]' the work being performed (see, Labor Law §§ 240, 241; Kelly v. Bruno & Son, 190 A.D.2d 777, 593 N.Y.S.2d 555). The phrase 'direct or control' is construed strictly and refers to the situation where the 'owner supervises the method and manner of the work' (Rimoldi v. Schanzer, 147 A.D.2d 541, 545, 537 N.Y.S.2d 839; see also, Duda v. Rouse Constr. Corp., 32 N.Y.2d 405, 345 N.Y.S.2d 524, 298 N.E.2d 667). The premise of the exemption is that strict liability under the Labor Law should not be imposed upon owners' 'who are not in a position to know about, or provide for the responsibilities of absolute liability'' (Cannon v. Putnam, 76 N.Y.2d 644, 649, 563 N.Y.S.2d 16, 564 N.E.2d 626, quoting Recommendation of N.Y. Law Rev. Commn., reprinted in 1980 McKinney's Session Laws of N.Y., at 1658)". Mayen v. Kalter, 282 A.D.2d 508 (2d. Dept. 2001).

Plaintiffs rely primarily on the testimony of Thomas Bucco in support of their cross-motion for summary judgment and state that "Thomas Bucco's testimony made clear that Moinian and his agent, David Duv.oisin, directed and controlled each and every aspect of the construction of the home for Moinian". (Pit, Atty. Aff. ¶l 0)

Thomas Bucco testified at a deposition bn May 22, 2017 and gave the following relevant testimony:

"A: I became the owner's rep and just providing information of what was transpiring at the site. If people showed up, I let him know. He sent an email, how people? Six people. Plumbers, how many guys does he have today? Send me pictures. That was what -1 was -1 was really his information out on the field.

Q: So you were essentially like a designated representative of Mr. Morris then in the field?

A: Yes.

Q: You were?

A: Owner's rep.

Q: Just so we're clear for the record, your understanding is that you weren't working now as the general contractor, you were just an owner's rep doing work on behalf of the owner?

A: Not only was that my understanding, that's what happened.

Q: That's what it was?

A: That's what it was.

He controlled - this came down to dollars. If I was the contractor he would have paid me more money. So - and insurance, to have insurance under this contract was a lot of money so I went - I said, I'm not getting the insurance if I'm not the contractor. So he- so we re-negotiated kept the 180 and he became the actual contractor.

Q: Where you were acting on his behalf at the job site?

A: I would act on his behalf at the job site for providing him information of what was transpiring at the site.

Q: And the work that was being done at the job site, were you giving any directives of how that work was to be completed?

A: What do you mean by "completed"?

Q: To how the work was performed.

A: Well, the contractors did their work.

Q: Right.

A: And they were told what they had to do, put a faucet in, you have to put nine faucets in today, that's as far as it went. As far as how they did it and means and methods, that's not on me. I - you know, the contractor obviously knows, supposed to know what he's doing."

(P. 26 In. 14-P. 28 In. 19)

"Q: While the work that was being performed was going on, were there any type of plans that you had to be familiar with, to follow while the work was being bid?

A: All contractors had to follow a certain matter of plans.

Q: And were these plans that you had familiarized yourself with during the course of this job?

A: Absolutely.

Q: And it was something that you had to oversee to make sure that the work was being done pursuant to the plans?

A: Well, with regards to

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