Lopez v. Dagan

• Decision Date: 21 August 2012
• Citation: 949 N.Y.S.2d 671,2012 N.Y. Slip Op. 05999,98 A.D.3d 436
• Court: New York Supreme Court — Appellate Division
• Parties: Fredy LOPEZ, Plaintiff–Respondent–Appellant, v. Rafael DAGAN, et al., Defendants–Appellants–Respondents, Goldstein & Associates, Defendant–Respondent, Olga Bakick Architect, Defendant.

98 A.D.3d 436
949 N.Y.S.2d 671
2012 N.Y. Slip Op. 05999

Fredy LOPEZ, Plaintiff–Respondent–Appellant,
v.
Rafael DAGAN, et al., Defendants–Appellants–Respondents,
Goldstein & Associates, Defendant–Respondent,
Olga Bakick Architect, Defendant.

Supreme Court, Appellate Division, First Department, New York.

Aug. 21, 2012.

[949 N.Y.S.2d 672]

Perez & Varvaro, Uniondale (Joseph Varvaro of counsel), for appellants-respondents.

Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for respondent-appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Douglas R. Halstrom of counsel), for respondent.

MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, ROMÁN, JJ.

[98 A.D.3d 436]Orders, Supreme Court, New York County (Joan A. Madden, J.), entered on or about April 12, 2011 and April 19, 2011, which, to the extent appealed from as limited by the briefs, in an action for personal injuries sustained by plaintiff when the temporary floor on which he was working collapsed, granted defendants-owners' motion for summary judgment to the extent of dismissing plaintiff's Labor Law § 240(1) and § 241(6) claims as against them, and denied the motion with respect to plaintiff's Labor Law § 200 and common-law negligence claims, granted defendant-engineer's motion for summary judgment dismissing the complaint and all cross claims as against it, and denied plaintiff's cross motion for leave to serve an amended bill of particulars, and for partial summary judgment as to liability[98 A.D.3d 437]on his § 240(1) and § 241(6) claims, modified, on the law, to dismiss plaintiff's § 200 and common-law negligence claims as against the owners, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against defendant owners Rafael Dagan and Jacklin Dagan.

The owners made a prima facie showing of their entitlement to judgment as a matter of law under the homeowner's exemption of Labor Law § 240(1) and § 241(6). It is undisputed that the sole purpose of the construction work was to convert a multiple dwelling into a one-family dwelling for the owners' use ( Stejskal v. Simons, 3 N.Y.3d 628, 629, 782 N.Y.S.2d 397, 816 N.E.2d 186 [2004] ). The owners also submitted evidence, including their contract with the general contractor and deposition testimony, showing that they did not direct or control the work at issue ( see Affri v. Basch, 13 N.Y.3d 592, 595–596, 894 N.Y.S.2d 370, 921 N.E.2d 1034 [2009];Chowdhury v. Rodriguez, 57 A.D.3d 121, 126–127, 867 N.Y.S.2d 123 [2008] ). Plaintiff's evidence that the owners hired the contractors and visited the work site regularly failed to raise an issue of fact as to whether they directed or controlled the work ( see Chowdhury, 57 A.D.3d at 127, 867 N.Y.S.2d 123;Jenkins v. Jones, 255 A.D.2d 805, 806, 680 N.Y.S.2d 307 [1998] ).

The engineer made a prima facie showing that it did not have the authority to direct, supervise or control the injury-producing work, and thus was not liable as an agent of the owners under Labor Law § 240(1) and § 241(6). Indeed, the engineer's contract with the owners provided that it did not have control over, and was not responsible for, “any construction means, methods, procedures, temporary structures or work....” In response, plaintiff failed to raise a triable issue of fact. The engineer's contractual duty to visit the site “at periodic intervals” to determine if construction was in accordance with plans and specifications, is insufficient by itself to hold the engineer liable under Labor Law § 240(1) and § 241(6), and

[949 N.Y.S.2d 673]

there is no evidence otherwise to indicate that the engineer had the authority to direct or control the work at issue ( see Carter v. Vollmer Assoc., 196 A.D.2d 754, 602 N.Y.S.2d 48 [1993];Sikorski v. Springbrook Fire Dist. of Town of Elma, 225 A.D.2d 1041, 639 N.Y.S.2d 226 [1996] ).

To support his Labor Law § 241(6) claims, plaintiff cross moved for leave to amend his bill of particulars to add provisions of the Industrial Code and Administrative Code of the City of New York. Because plaintiff's § 241(6) claims were properly dismissed, the court properly denied leave to amend as moot.

The court, however, should have dismissed plaintiff's Labor Law § 200 and common-law negligence claims as against the [98 A.D.3d 438]owners. With respect to plaintiff's claim pursuant to Labor Law § 200, the owners made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that plaintiff's accident was caused by the means and methods employed by the general contractor, namely, the improper installation of a temporary floor, and that they had no supervisory control over the operation ( see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110 [1993];Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117 [1992] ). In response, plaintiff failed to raise an issue of fact. To the extent that plaintiff's injuries arose from a dangerous condition on the premises, which under the common-law the owners were duty-bound to guard against, the owners established prima facie entitlement to summary judgment on plaintiff's common-law negligence claim by proffering evidence that they neither created the accident-causing condition ( Wasserstrom v. New York City Tr. Auth., 267 A.D.2d 36, 37, 699 N.Y.S.2d 378 [1999],lv. denied94 N.Y.2d 761, 707 N.Y.S.2d 142, 728 N.E.2d 338 [2000];Allen v. Pearson Publ. Empire, 256 A.D.2d 528, 529, 683 N.Y.S.2d 100 [1998];Kraemer v. K–Mart Corp., 226 A.D.2d 590, 641 N.Y.S.2d 130 [1996] ), nor had prior notice, actual or constructive, of it ( Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994];Bogart v. Woolworth Co., 24 N.Y.2d 936, 937, 301 N.Y.S.2d 995, 249 N.E.2d 771 [1969];Irizarry v. 15 Mosholu Four, LLC, 24 A.D.3d 373, 806 N.Y.S.2d 534 [2005] ). In response, plaintiff failed to raise a triable issue of fact, and summary judgment in favor of the owners was thus warranted.

The dissent argues that the record here raises an issue of fact with respect to notice such that the owners should not be granted summary judgment on plaintiff's common-law negligence or Labor Law § 200 claim. We disagree. The pertinent issue here is whether there is any evidence that the owners had actual or constructive notice of any structural deficiency of the temporary floor. The record is bereft of any evidence that prior to this accident the owners were ever actually aware that the floor was improperly installed or structurally deficient. Nothing in the record indicates that the floor, when viewed and stood upon, appeared or felt compromised. Accordingly, there is no evidence that the owners had actual notice. Nor is there any evidence that they had constructive notice. A defendant is charged with constructive notice of a defective condition when the condition is visible, apparent, and exists for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy it ( Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ). Here, at best, the portions of the record upon which the dissent relies only establish that the owners had ample opportunity to observe

[949 N.Y.S.2d 674]

any defective condition which might manifest itself. However, since the defective condition was latent and not visibly apparent, that [98 A.D.3d 439]the owners were frequently present at the accident site even for prolonged periods of time is insufficient to establish constructive notice.

Plaintiff's Labor Law § 200 and common-law negligence claims were properly dismissed as against the engineer; there is no evidence that the engineer had the contractual right to control the injury-producing work or that it failed to use due care in the exercise of its professional services ( see Carter, 196 A.D.2d at 754, 602 N.Y.S.2d 48).

All concur except CATTERSON, J., who dissents in part in a memorandum as follows:

CATTERSON, J. (dissenting in part).

I must respectfully dissent to the extent that I would deny the defendant owners' motion for summary judgment and reinstate the plaintiff's Labor Law § 200 and common-law negligence claims against them insofar as they are based on a dangerous premises condition, and there is an issue of fact as to whether the homeowners had actual or constructive notice of the condition.

The following facts are established in the record: the defendants Rafael and Jacklin Dagan (hereinafter referred to as “the homeowners”) are the owners of a five-story building located at 333 East 51st Street in Manhattan (hereinafter referred to as “the premises”). The homeowners...