Herrera v. Ray's Home Improvement, 2008 NY Slip Op 30825(U) (N.Y. Sup. Ct. 3/13/2008)
| Decision Date | 13 March 2008 |
| Docket Number | 0004732/2005,Motion Seq. No.: 4,Motion Cal. No.: 15 |
| Citation | 2008 NY Slip Op 30825 |
| Parties | ERIC HERRERA, SR., and ANA PATRICIA HERRERA, Plaintiff, v. RAY'S HOME IMPROVEMENT, SOUNDVIEW MANAGEMENT, LLC, SOUNDVIEW PROPERTY MANAGEMENT, THE KNOLLS OF FOX HILL, INC., THE KNOLLS OF FOX HILL HOMEOWNER'S ASSOCIATION, INC., BENJAMIN DEVELOPMENT CO., INC., MICHAEL MINUTOLI and ANGELA MINUTOLI, Defendants. |
| Court | New York Supreme Court |
The following papers numbered 1 to 15 read on this motion for an order granting summary judgment in favor of defendants Michael Minutoli and Angela Minutoli on the ground that there is no liability against them as a matter of law and for dismissal of the complaint and cross claims; and on this cross-motion for an order granting plaintiffs summary judgment on the issue of liability, pursuant to Labor Law §§240(1) and 241(6), against defendants The Knolls of Fox Hill, Inc., the Knolls of Fox Hill Homeowner's Association, Soundview Management, LLC, Soundview Property Management, Inc., Michael Minutoli and Angela Minutoli, for the relief demanded in the complaint.1
Upon the foregoing papers, it is hereby ordered that the motion and cross-motion are disposed of as follows:
Plaintiffs Eric Herrera, Sr. ("Herrera") and Ana Herrera commenced this Labor Law action to recover damages for injuries allegedly sustained by Herrera resulting from his fall from a ladder, while in the course of his employment with defendant Ray's Home Improvement ("Ray's") and while working at a condominium complex known as The Knolls of Fox Hill, Inc. ("The Knolls"), pursuant to an agreement between Ray's and The Knolls of Fox Hill Home Owners Association ("The Knolls HOA"). Ray's was hired to perform caulking and painting to the exterior of all the condominium units following the placing of aluminum siding on the condominium units by another contractor. Plaintiffs allege violations of sections 240(1) and 241(6) of the Labor Law. Defendants Michael Minutoli and Angela Minutoli ("Minutoli defendants") move for summary judgment in their favor on the ground that there is no liability against them as a matter of law, and for dismissal of the complaint and cross claims asserted against them. Plaintiffs cross-move for summary judgment in their favor against the alleged property owners, The Knolls and The Knolls HOA, and the Minutoli defendants; and the managing agents, Soundview Management LLC and Soundview Property Management ("Soundview defendants").
Labor Law § 240(1) requires owners of buildings, who contract for, among other things, the construction, demolition, repair, alteration or painting of their buildings, to provide various equipment, including ladders, hoists and scaffolding, which are constructed, placed and operated so as to protect workers from injury. Failure to comply with the statutory requirement of this section subjects building owners to strict liability for injuries incurred by workers as a result of such failure. See, Zimmer v Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (1985); Melo v Consolidated Edison Co. of New York, Inc., 246 A.D.2d 459, affd 92 N.Y.2d 909 (1998). A cause of action under section 240(1) of the Labor Law arises out of the nondelegable duty upon owners and general contractors which applies when an injury is the result of one of the elevation-related risks contemplated by that section [see, Rose v. A. Servidone, Inc., 268 A.D.2d 516 (2nd Dept. 2000)], which prescribes safety precautions to protect laborers from unique gravity-related hazards such as falling from an elevated height or being struck by a falling object when the work site is positioned below the level where materials or loads are being hoisted or secured. See, Narducci v. Manhasset Bay Assocs., 96 N.Y.2d 259 (2001); Misseritti v. Mark IV Constr. Co., Inc., 86 N.Y.2d 487 (1995); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (1993); Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509 (1991).
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety to all persons employed in areas in which construction, excavation, or demolition work is being performed." See, Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 347 (1998); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502 (1993). To support a § 241(6) claim, a plaintiff must allege a violation of the New York State Industrial Code, the implementing regulations promulgated by the State Commissioner of Labor, which sets forth a "specific" standard of conduct, and that such violation was the proximate cause of his injuries. See, Vernieri v. Empire Realty Co., 219 A.D.2d 593, 597 (2nd Dept.1995); Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 501-502 (1993). As with Labor Law § 240(1), only owners and general contractors can be held absolutely liable for statutory violations of Labor Law § 241(6) [See, Rocovich v Consolidated Edison Co., 78 N.Y.2d 509 (1991); Bland v Manocherian 66 N.Y.2d 452 (1985); Zimmer v Chemung County Perf. Arts, Inc., 65 N.Y.2d 513 (1985)], and all other parties are liable "only if they are acting as the `agents' of the owner or general contractor. See, Serpe v Eyris Prods., Inc., 243 A.D.2d 375, 379-380 (2nd Dept. 1997).
The Minutoli defendants, who own a unit in the condominium complex near where Herrera's accident occurred, seek summary judgment dismissing the complaint and all cross claims interposed against them based upon their contention that there can be no liability against the condominium unit owners as owners of common elements under the multiple dwelling law. In support of this position they cite Pekelnaya v. Allyn, 25 A.D.3d 111 (1st Dept. 2005), a case examining the question of "whether liability should be imposed on the owners of individual condominium units for injuries to third persons resulting from a defect in a common element." The Appellate Division, First Department, answered the question in the negative, stating, in substance, that a condominium unit owner's minority proportionate leasehold interest in a condominium's common elements is not an interest in the freehold necessary to subject the condominium unit owner to liability as an owner of the common elements under the Multiple Dwelling Law.
In Tumminello v. Hamlet Development Co., 255 A.D.2d 575, leave to appeal denied, 93 N.Y.2d 80 (1999), the Appellate Division, Second Department, in a case directly on point, affirmed the decision of the nisi prius court, which held that individual condominium unit owners were exempt from liability for failure to provide the plaintiff, who was doing work on roof, reasonable and adequate protection and safety. In making the underlying determination, the trial court stated the following rationale [Tumminello v. Hamlet Development Co., 174 Misc.2d 239, 242 664 N.Y.S.2d 211, 213 (N.Y.Sup.1997)]:
[T]here is a specific exception to owners of one and two family residences who do not direct or control the work being performed in or on the premises. Cannon v. Putnam, 76 N.Y.2d 644, 563 N.Y.S.2d 16, 564 N.E.2d 626 (1990). Unless owners of one and two family dwellings exercise direction and control of construction work and/or the workers, they are exempt from liability under the Labor Law. This is true even where the homeowner contracts for the work to be performed with plaintiff's employer. This exemption includes cooperative owners. Brown v. Christopher Street Owners, 211 A.D.2d 441, 620 N.Y.S.2d 374 (1st Dept.1995); aff'd, 87 N.Y.2d 938, 641 N.Y.S.2d 221, 663 N.E.2d 1251 (1996); DeNota v. 45 East 85th St. Corp., 163 Misc.2d 734, 622 N.Y.S.2d 192 (1995).
See, also, Putnam v. Karaco Industries Corp., 253 A.D.2d 457 (2nd Dept. 1998). The exception to this exemption from strict liability is when it is shown that the owner(s) directed or controlled the work being performed. Arama v. Fruchter, 39 A.D.3d 678 (2nd Dept. 2007); Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847 (2nd Dept. 2006); Duarte v. East Hills Const. Corp., 274 A.D.2d 493 (2nd Dept. 2000); see, also, Bartoo v Buell, 87 N.Y.2d 362 (1996); Cannon v Putnam, 76 N.Y.2d 644 (1990). As the Minutoli defendants made a prima facie showing that they were entitled to the protection of the homeowner's exemption and plaintiffs, in opposition, failed to raise a triable issue of fact as to whether these defendants exercised any degree of direction and control over the work Herrera performed, the motion for summary judgment by the Minutoli defendants is granted, and the complaint hereby is dismissed as to them.
Plaintiffs' motion for summary judgment against defendants The Knolls, The Knolls HOA, and the Soundview defendants ("defendants"), on the issue of liability stands on a different footing. In order to recover on a claim pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident. Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287 (2003); Kwang Ho Kim v. D & W Shin Realty Corp., __ A.D.3d__, __ N.Y.S.2d__, 2008 WL 82623 (2nd Dept. 2008); Camlica v. Hansson, 40 A.D.3d 796 (2nd Dept. 2007); Delahaye v. Saint Anns School, 40 A.D.3d 679 (2nd Dept. 2007). A plaintiff cannot recover under Labor Law § 240(1) if his or her actions were the sole proximate cause of the accident. See, Camlica v. Hansson, supra, and cases cited therein. Where there is no evidence of violation and the proof reveals that the plaintiff's own negligence was the sole proximate cause of the accident, liability cannot be imposed under Labor Law § 240(1). Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287 (2003); Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1...
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