Marks v. Morehouse

• Citation: 222 A.D.2d 785,634 N.Y.S.2d 835
• Parties: Michelle MARKS, as Administratrix of the Estate of Kevin J. Marks, Deceased, Respondent, v. Andrew J. MOREHOUSE, Appellant.
• Decision Date: 07 December 1995
• Court: New York Supreme Court — Appellate Division

Page 835

634 N.Y.S.2d 835

222 A.D.2d 785

Michelle MARKS, as Administratrix of the Estate of Kevin J Marks, Deceased, Respondent, v. Andrew J. MOREHOUSE, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 7, 1995.

Featherstonhaugh, Conway, Wiley & Clyne (Denis R. Hurley Jr., of counsel), Albany, for appellant.

Roche, Corrigan, McCoy & Bush (Robert P. Roche, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW, WHITE and YESAWICH, JJ.

YESAWICH, Justice.

Appeal from an order of the Supreme Court (Spain, J.), entered November 18, 1994, which, inter alia, granted plaintiff's cross motion for partial summary judgment on the issue of liability.

Plaintiff's decedent was fatally injured on October 21, 1990, when he fell from a ladder while painting the exterior of a building used for commercial purposes in the City of Albany. At the time, he was assisting Warren Adams, who had contracted to purchase the property from defendant. Defendant, who retained title to the premises, had given Adams permission to clean and paint the interior, prior to the closing, and Adams had, with decedent's help, undertaken exterior work as well, apparently without defendant's knowledge or consent. After the accident, the property was transferred to Adams, pursuant to the contract, by a deed dated October 30, 1990 and recorded in June 1991.

In this action, plaintiff seeks to hold defendant liable, as owner of the premises, for her late husband's injuries and resulting demise, which she contends were caused by unsafe conditions, in violation of Labor Law §§ 200, 240(1) and 241(6). Defendant moved for summary judgment, asserting that he was not, at the time of the accident, an "owner" of the premises for purposes of Labor Law § 240(1) and § 241(6), and that decedent was, in any event, not protected by those statutes because he had not been hired by Adams, but was merely a "volunteer". Plaintiff's cross motion for partial summary judgment on the issue of liability was granted, prompting this appeal.

There is no merit to defendant's argument that he may not be held liable as an "owner" under Labor Law §§ 240 and 241, because he had contracted to sell the property to Adams, and it was Adams who actually engaged decedent, controlled the work and benefitted therefrom. Defendant was not only the legal owner of the property at the relevant time but, pursuant to the contract of sale, also enjoyed full possessory rights thereto until the transfer of title. Inasmuch as he had the right to control access to the property and the activities performed thereon (see, Kerr v. Rochester Gas & Elec. Corp., 113 A.D.2d 412, 416, 496 N.Y.S.2d 880), whether he did, in fact, do so is immaterial.

The liability imposed by Labor Law §§ 240 and 241 "rests upon the fact of ownership[,] and whether [defendant] had contracted for the work or benefitted from it are legally irrelevant" (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 560, 606 N.Y.S.2d 127, 626 N.E.2d 912); the duty to ensure the safety of workers on one's property may not be evaded by delegation (id.; see, Celestine v. City of New York, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548, affg. on mem below 86 A.D.2d 592, 446 N.Y.S.2d 131). Although "ownership", as contemplated by these statutes, is not always limited to the titleholder (see, Mangiameli v. Galante, 171 A.D.2d 162, 163, 574 N.Y.S.2d 842), and a contract vendee, such as Adams, may be considered an "owner" (see, DeFreece v. Penny Bag, 137 A.D.2d 744, 745, 524 N.Y.S.2d 825), neither Adams' acquisition of an equitable interest in the premises, nor his assumption of control over the work, relieves defendant of his nondelegable duty, as the legal owner, to provide a safe environment for those performing certain types of work on his property.

While plaintiff is entitled to partial summary judgment on the issue of ownership, questions of fact remain with respect to whether decedent was serving as a paid employee or merely as a volunteer; in the latter case he would not be entitled to the protections afforded by Labor Law §§ 240 and 241 (see, Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 577, 561 N.Y.S.2d 892, 563 N.E.2d 263; Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032). To support her contention that decedent was among the class of protected persons, plaintiff submitted her...