Callari v. Pellitieri

• Decision Date: 22 May 1987
• Citation: 130 A.D.2d 935,516 N.Y.S.2d 371
• Parties: David G. CALLARI, Appellant, v. Paul PELLITIERI, Peter Gambino, Philip Sucher, Samuel Kleiner and Frederick J. Labenski, Respondents and Third Party Plaintiffs-Respondents. World Auto Parts, Inc., Third Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 371

516 N.Y.S.2d 371

130 A.D.2d 935

David G. CALLARI, Appellant, v. Paul PELLITIERI, Peter Gambino, Philip Sucher, Samuel Kleiner and Frederick J. Labenski, Respondents and Third Party Plaintiffs-Respondents World Auto Parts, Inc., Third Party Defendant-Respondent.

Supreme Court, Appellate Division Fourth Department.

May 22, 1987.

Hagerty & Hagerty by James Hagerty, Buffalo, for appellant.

Lewis & Lewis, P.C., by Allen Lewis, Buffalo, for defendants-respondents and third-party plaintiffs-respondents.

Koren, Bertell & Hoey by George Collins, Buffalo, for third-party defendant-respondent.

Before DILLON, P.J., and DOERR, GREEN, BALIO and DAVIS, JJ.

MEMORANDUM:

Plaintiff, an employee of World Auto Parts, Inc., (World), was injured when he fell from a warehouse loft. The building was owned by the five defendants and was leased to World. The five defendants were directors and shareholders of World, and defendants Pellitieri, Labenski and Gambino were also officers and employees. Plaintiff had been instructed to build a floor in the loft that would be adequate in size for storage of some 5,000 empty boxes. After three sections of flooring had been constructed, plaintiff was helping a co-employee store boxes when he fell from the loft into a barrel on the warehouse floor. No additional loft flooring has been constructed.

Plaintiff commenced an action against the owners predicat upon common law negligence and violations of sections 200, 240 and 241 of the Labor Law. Following joinder of issue, defendants moved for summary judgment claiming that construction had been completed at the time of the accident and that the defendants had surrendered all control of the premises to World. Plaintiff cross-moved for summary judgment as to liability. This appeal is from an order granting defendants' motion and denying the cross-motion.

Plaintiff concedes that no cause of action exists against his co-employees (Pellitieri, Labenski and Gambino) for claimed violations of the Labor Law or negligence, and we agree that summary judgment was properly granted as to those defendants (see, Heritage v. Van Patten, 59 N.Y.2d 1017, 466 N.Y.S.2d 958, 453 N.E.2d 1247). We also agree that plaintiff failed to raise a bona fide factual issue supporting his claim that construction was in progress and that summary judgment was properly granted dismissing the claimed violations of sections 240 and 241 of the Labor Law. No liability arises under either section where the construction has been completed (see, Malczewski v. Cannon Design, Inc., 125 A.D.2d 941, 510 N.Y.S.2d 339; Jaroszewicz v. Facilities Dev. Corp., 115 A.D.2d 159, 495 N.Y.S.2d 498; Sharaby v. Gamel, 113 A.D.2d 748, 493 N.Y.S.2d 748). Plaintiff avers that after the accident he learned that there were enough boxes to require three more sections of flooring, but failed to indicate when or how he obtained the information or the basis for the conclusory assertion that three more sections would be required. One opposing summary judgment may proffer hearsay evidence, but such proof may not be the sole factual basis for denying summary judgment (Wertheimer v. New York Prop. Ins. Underwriting Assn., 85 A.D.2d 540, 444 N.Y.S.2d 668). We conclude that plaintiff has failed to raise a...