Goodrich v. Watermill Townhouses, Inc.

• Court: New York Supreme Court
• Writing for the Court: ANTHONY J. CARPINELLO
• Citation: Goodrich v. Watermill Townhouses, Inc., 645 N.Y.S.2d 721, 169 Misc.2d 314 (N.Y. Sup. Ct. 1996)
• Decision Date: 19 April 1996
• Parties: Kevin GOODRICH, Plaintiff, v. WATERMILL TOWNHOUSES, INC., Defendant, and Third-Party Plaintiff. Edward Hofler, Individually and Doing Business as Rhinebeck Renovators, Third-Party Defendant.

Page 721

645 N.Y.S.2d 721

169 Misc.2d 314

Kevin GOODRICH, Plaintiff, v. WATERMILL TOWNHOUSES, INC., Defendant, and Third-Party Plaintiff Edward Hofler, Individually and Doing Business as Rhinebeck Renovators, Third-Party Defendant.

Supreme Court, Ulster County.

April 19, 1996.

Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh (Andrew L. Spitz of counsel), for plaintiff.

F. Douglas Novotny, Albany, for defendant and third-party plaintiff.

Kris T. Jackstadt, Albany, for third-party defendant.

ANTHONY J. CARPINELLO, Justice.

In this Labor Law § 240 case, the plaintiff Kevin Goodrich moves for summary judgment pursuant to CPLR 3212 on the issue of liability. The defendant Watermill Townhouses, Inc. ("Watermill") and the third-party defendants Edward Hofler, individually and d/b/a Rhinebeck Renovators cross-move for summary judgment, contending that Watermill is not an "owner" within the meaning of Labor Law § 240 and is therefore not a proper party to this action. As will be set forth more fully below, the Court concludes that Watermill should in fact be treated as an "owner" for purposes of Labor Law § 240. However, because the Court finds that questions of fact exist as to the cause of plaintiff's accident, the plaintiff's motion for summary judgment on the issue of liability is denied.

This case arises out of injuries sustained by the plaintiff Kevin Goodrich on October 16, 1991 while working at the Watermill Townhouse complex in Lake Katrine. Plaintiff was an employee of third-party defendant Rhinebeck Renovators. In his affidavit in support of this motion, plaintiff states that prior to the accident he was standing on a 40 foot extension ladder removing old caulking from the easterly side of one of the townhouse units. He states that as he began to descend the ladder, the ladder began sliding to the left and that when his right foot was on the third rung of the ladder, the ladder shifted and spun to the left, propelling the plaintiff against the side of the apartment unit. Plaintiff also produces the deposition testimony of Stefan Washburn, who was present at the time of the accident. Washburn testified that he heard the plaintiff yell and then looked around the corner of the building and saw the ladder tipping to the right and the plaintiff falling against the corner of the building. Washburn testified that he ran to the ladder and grabbed it after the plaintiff "slammed himself up against the building." It is plaintiff's claim on this motion that the failure to secure the ladder constitutes a violation of Labor Law § 240.

Labor Law § 240(1), the "scaffold law," provides that "[a]ll contractors and owners * * * shall furnish or erect, or cause to be furnished or erected * * * 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 [construction workers employed on the premises]." "The purpose of the statute is to protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility" (Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82). The duty imposed by this section is non-delegable and absolute, and an owner is liable for a violation of this section even though the job was performed by an independent contractor over which it exercised no supervision or control and regardless of the negligence of the worker (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932). Finally, this section "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Id. [citations omitted].

On its cross-motion for summary judgment, Watermill argues that it is not an "owner" within the meaning of Labor Law § 240 and thus cannot be held liable for a violation of that statute. Counsel for Watermill annexes to its papers the contract with Rhinebeck Renovators for completion of the work at issue in this case. The contract, which is dated July 2, 1991, is between Rhinebeck Renovators and Watermill Townhouse One. Apparently, Watermill Townhouses, Inc. was not incorporated until August 22, 1991, after the contract with Rhinebeck Renovators was signed but before the plaintiff's accident. Further, counsel argues that Watermill is a not-for-profit corporation and does not own any real property. The units are owned by the individual condominium owners. The owners also possess a percentage interest in the common areas of the condominium. Therefore, counsel argues that Watermill was simply a homeowner's association that did not contract with Rhinebeck Renovators, did not exist at the time that the contract was signed, and did not own any real property on the date of the accident. Accordingly, counsel for Watermill urges that this Court dismiss the complaint as against it.

To qualify as an "owner" for purposes of the Labor Law, it is not necessary that a party actually hold title to the property upon which the accident occurs (Copertino v. Ward, 100 A.D.2d 565, 566, 473 N.Y.S.2d 494). Rather, the Appellate Division has held that the targets of the statutory liability are "those who have the power to enforce safety standards and choose responsible subcontractors" (Nowak v. Smith & Mahoney, P.C., 110 A.D.2d 288, 290, 494 N.Y.S.2d 449). Thus, "the key criterion is 'the right to insist that proper safety practices were followed and it is the right to control the work that is significant, not the actual exercise or nonexercise of control' " (Id., citing, Copertino v. Ward, supra, at 567, 473 N.Y.S.2d 494). "[The owner] is the party who, as a practical matter, has the right to hire or fire subcontractors and to insist that proper safety practices are followed" (Sweeting v. Board of Cooperative Educational Services, 83 A.D.2d 103, 114, 443 N.Y.S.2d 910).

In this case, as counsel for Watermill points out, Watermill did not contract with Rhinebeck Renovators. Watermill Townhouse One was the entity that contracted with Rhinebeck Renovators. Watermill had not been incorporated at the time that the contract was executed. However, a review of the deposition transcript of Nicholas G. Koopman, Jr. reveals that the facts of this case are not nearly as cut-and-dried as Watermill claims on its cr...