Mallory v. Vallis, LLC
| Decision Date | 13 January 2022 |
| Docket Number | Index 159063/2019 |
| Citation | 2022 NY Slip Op 30222 (U) |
| Parties | EARLE MALLORY, DANA MALLORY, Plaintiff, v. VALLIS, LLC, ALEX FRIDLYARD, ALEX FRIDLYAND, INDIVIDUALLY AND D/B/A THE GABLES FARM Defendant. |
| Court | New York Supreme Court |
MOTION DATE 11/19/2021
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 23, 24, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37, 38, 39 40, 41, 42, 43 were read on this motion to/for PARTIAL SUMMARY JUDGMENT .
Upon the foregoing documents, it is ordered that plaintiff's motion for summary judgment pursuant to Labor Law §§§ 240(1), 241(6), and 200 and defendants' cross motion for summary judgment, dismissing plaintiff's complaint, are determined as follows:
Plaintiffs commenced the instant action alleging that Earle Mallory was injured while working on a mobile, motorized work scaffold ("scissor lift"), at least 13 feet off the ground on August 16, 2019 at the Gables Farm when the under-construction barn he was working within collapsed, toppling over the lift.
In support of the motion, the movants and cross movants submit, inter alia, the deposition transcripts of defendant Alex Fridlyand (member of Vallis LLC [herein "Vallis"]), plaintiff Earle L. Mallory, Jr. (employee of Bijou Contracting, Inc.), Tyler Silveira/Bijou Contracting, Inc. (owner/general contractor of the subject barn that collapsed), Samuel Migliorelli (employee of Bijou Contracting, Inc.), Robert Mackey (Silveira's friend who assisted at project), Gerald Krupa (Vallis farmhand), and the expert affidavit of Alden P. Gaudreau, PhD.
The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating that absence of any triable issues of fact and establishing entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; see also Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). Only when the movant satisfies its prima facie burden will the burden shift to the opponent "to lay bare his or her proof and demonstrate the existence of triable issues of fact" (Alvarez, 68 N.Y.2d at 324; see also Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; Chance v Felder, 33 A.D.3d 645, 645-646 [2d Dept 2006]).
As a preliminary matter, all causes of action are dismissed as to Alex Fridlyand, individually. Nothing in the record indicates that Fridlyand, individually, possessed or exercised supervisory control and authority over the work being performed (compare Johnson v City of New York, 120 A.D.3d 405 [1st Dept 2014](Bovis found to be statutory agent where found to have acted as the "eyes and ears" of the project, and had broad responsibility to coordinate and supervise the work of the contractors); Walls v Turner Constr. Co., 4 N.Y.3d 861 [2005]).
In determining whether someone is a statutory agent for the purposes of the Labor Law, courts generally examine whether a third-party contractor, construction manager, or superintendent was delegated the safety responsibilities of the owner by, in practice, having been regularly on site having the responsibility for coordinating the work, and having the authority to stop unsafe work practices and to report unsafe conditions to the trade foreman (see Kittelstad v Losco Group, Inc., 92 A.D.3d 612 [1st Dept 2012]; see Rainer v Gray-Line Development Co., LLC, 2012 WL 9570399 [Sup Ct, New York County 2012, Scarpulla, J.], mod 117 A.D.3d 634 [1st Dept 2014]). Here, it is evident that Fridlyand is a member of the ownership LLC and not a third-party. Moreover, he testified that he never assists on any construction projections at Gable's Farm as "[he] would be useless." He added that when it comes to these types of projects, "he does not understand all the things, about how things are done." With respect to the subject construction of the pole barn, the testimony produced essentially demonstrated that Fridlyand showed Silveira a picture of the type of red barn he wanted, told him where it should go, what size it should be, and then left it to Silveira and Bijou Contracting, Inc. to produce the barn based on the agreed upon quoted price for materials and labor. It is undisputed that Silveira supervised and controlled the construction of the subject pole barn and that Fridyland was largely out of contact with the project while on safari with his family in Africa at the time of the accident, shortly after the project had commenced (see generally Vazquez v Humboldt Seigle Lofts, LLC, 145 A.D.3d 709 [2d Dept 2016]). Moreover, even if Fridyland did exercise the requisite safety supervisory control, this would be through his capacity as a member of the ownership LLC, Vallis, and not individually as a third-party agent to the owner.
For many of the reasons stated above, Vallis cannot be held liable pursuant to Labor Law § 200.
Labor Law § 200 (1) provides, in pertinent part, as follows:
[a]ll places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.
It is well settled that the purpose of Labor Law § 200 was to codify the common law duty owed by owners and general contractors to maintain a safe work site (see Comes v New York State Electric & Gas Corp., 82 N.Y.2d 876 [1993]). Claims for personal injury under Labor Law § 200 and common law negligence fall into two categories: (1) those arising from the manner in which the work was performed and (2) those arising from an alleged defect or dangerous condition existing on the premises (see Cappabianca v Skanska USA Bldg. Inc., 99 A.D.3d 139 [1st Dept 2012]).
Plaintiffs generally contend that Vallis is negligent both based on the careless supervision and control of the manner in which the work by Bijou's employees or subcontractors was performed and also due to the dangerous or defective conditions of or on the premises. As to the former, it is undisputed that it was Silveira who supervised and controlled plaintiff Mallory and not Vallis (see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352 [1998]; see also Hughes v Tishman Constr. Corp., 40 A.D.3d 305, 311 [1st Dept 2007] ()). .
Nevertheless, plaintiffs believe the stronger argument is the latter, that Vallis created the dangerous and unsafe condition of the inadequately braced barn through its contractor, Bijou, and had actual or constructive knowledge of the condition. Specifically, plaintiffs maintain that Fridlyand admitted to a certain level of involvement in the planning, design, and presence at the site and had knowledge that the scissor lift was rented without safety harnesses or lanyards and would be used for dangerous above-ground work under the unsafe roof trusses[1] Notwithstanding the actual lack of evidence adduced to demonstrate that Vallis through Fridyland had genuine input or knowledge of the structural design of the barn, had presence at the site, and/or knew about the type of scaffold that would be used, the defects that the plaintiffs describe are not defects inherent with the property but are instead the result of the manner in which Mallory's employer performed the work in attempting to construct the pole barn (see Williams v Turner Const. Co., 2012 WL 6617352 [Sup Ct, New York County 2012, Edmead, J.]; see Dalanna v the City of New York, 308 A.D.2d 400 [1st Dept 2003]). As such, Vallis' potential negligence must be predicated on their control and supervision, which, as previously established, was non-existent. Thus, that branch of plaintiffs' motion pursuant to Labor Law § 200 is denied, and the corresponding branch of defendants' cross motion is granted.
Labor Law § 241 (6) provides, in pertinent part:
Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection for workers and to comply with specific safety rules which have been set forth by the Commissioner of the Department of Labor (see St. Louis v Town of N. Elba, 16 N.Y.3d 411, 413 [2011]). In order to demonstrate liability pursuant to Labor Law § 241 (6), it must be shown that the defendants violated a specific, applicable regulation of the Industrial Code, rather than a provision containing only generalized requirements (see Nostrom v A.W. Chesterton Co., 15 N.Y.3d 502, 507 [2010]).
Here plaintiffs allege that defendants violated 12 NYCRR 23-18.8(c)(1). 12 NYCRR 23-18.8(c)(1), "which makes approved safety hats for persons 'required to work or pass within any area where there is a danger of being struck by falling objects or materials' is sufficiently concrete to give rise to Labor Law 241(6) liability" (Rutkowski v New York Convention Ctr. Dev. Corp., 146 A.D.3d 686 [1st Dept...
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