Marques v. Elite Flooring, Inc.

• Decision Date: 16 March 2012
• Docket Number: Index No: 2734/10
• Parties: MARCILIO MARQUES and MARIA MARQUES, Plaintiffs, v. ELITE FLOORING, INC., INNOVAX-PILLAR, INC., VICTORIA CONSULTING AND DEVELOPMENT LLC, THE ROMAN CATHOLIC CHURCH OF THE AMERICAN MARTYRS, Individually and d/b/a AMERICAN MARTYR SCHOOL, ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK CITY DEPARTMENT OF EDUCATION, THE CITY OF NEW YORK, and THE NEW YORK CITY SCHOOLS CONSTRUCTION AUTHORITY, Defendants.
• Court: New York Supreme Court

2012 NY Slip Op 31679

MARCILIO MARQUES and MARIA MARQUES, Plaintiffs,

v.ELITE FLOORING, INC., INNOVAX-PILLAR, INC., VICTORIA CONSULTINGAND DEVELOPMENT LLC, THE ROMAN CATHOLIC CHURCH OF THE AMERICAN MARTYRS,

Individually and d/b/a AMERICAN MARTYR SCHOOL, ROMAN CATHOLIC DIOCESE

OF BROOKLYN, NEW YORK CITY DEPARTMENT OF EDUCATION, THE CITY OF NEW YORK,

and THE NEW YORK CITY SCHOOLS CONSTRUCTION AUTHORITY, Defendants.

Index No: 2734/10

NEW YORK STATE SUPREME COURT - QUEENS COUNTY IAS TERM, PART 31

Dated: March 16, 2012

Short Form Order

Present: HONORABLE FREDERICK D.R. SAMPSON

Justice

Motion Date: 11/17/11

Motion Cal. No: 23

Motion Seq. No: 6

The following papers numbered 1 to 37 read on this motion for an order, pursuant to CPLR § 3212, granting summary judgment to defendants The Roman Catholic Church of the American Martyrs and Roman Catholic Diocese of Brooklyn on all plaintiffs' causes of action against them; and as to liability on their cross-claim for contractual liability against defendant the New York City Schools Construction Authority; and on this further motion by defendants Elite Floors, Inc., incorrectly s/h/a Elite Flooring, Inc., Innovax-pillar, Inc., New York City Department of Education, the City of New York and New York City School Construction Authority Incorrectly s/h/a the New York City School Construction Authority, for an order, pursuant to CPLR § 3212, for summary judgment dismissing plaintiffs' complaint and all cross-claims asserted against them.

+----------------------------------------------------------------+
                ¦                                                       ¦PAPERS  ¦
                ¦                                                       ¦        ¦
                ¦                                                       ¦NUMBERED¦
                +-------------------------------------------------------+--------¦
                ¦Notices of Motion-Affidavits-Exhibits-Memorandum of Law¦1 - 17  ¦
                +-------------------------------------------------------+--------¦
                ¦Answering Affidavits-Exhibits-Memorandum of Law        ¦18 - 29 ¦
                +-------------------------------------------------------+--------¦
                ¦Reply                                                  ¦30 - 37 ¦
                +----------------------------------------------------------------+
                

Upon the foregoing papers, it is hereby ordered that the motions are disposed of as follows:

Facts

Defendants The Roman Catholic Church of the American Martyrs and Roman Catholic Diocese of Brooklyn (collectively the "Church defendants"), the owners of the American Martyrs Catholic School, leased the premises to defendant New York City Schools Construction Authority s/h/a the New York City School Construction Authority ("SCA"), for the purposes of converting the building to an Annex School for defendant New York City Department of Education. SCA contracted with defendant Innovax-pillar, Inc. ("Innovax"), the general contractor, for the school conversion and renovation project. Innovax hired Elite Floors, Inc., incorrectly s/h/a Elite Flooring, Inc. ("Elite"), the sub-contractor who hired non-party Metro, plaintiff's employer, to perform the removal and installation of the basement floor of the premises. Plaintiff was allegedly injured when he and two co-workers were attempting to lower a scarifying machine, a heavy piece of machinery used to remove the existing floor, to the basement of the premises using an elevated plywood ramp positioned over stairs. The ramp broke under the weight of the machine, causing plaintiff to fall and the machine fell on top of him, knocking him to the ground below. It is upon the foregoing that the Church defendants and defendants Innovax, Elite, New York City Department of Education, the City of New York and SCA (collectively the "City defendants"), move for, inter alia, summary judgment dismissing the Marques plaintiffs' complaint, pursuant to CPLR § 3212, asserting violations under Labor Law §§ 200, 240(1) and 241(6). The Church defendants also seek liability on their cross-claim for contractual liability against SCA, and the City defendants further seek summary judgment and dismissal of all cross-claims asserted against them.

Discussion

Summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See, Zuckerman v. City of New York, supra.

I. Labor Law § 200 and Common Law Negligence

Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide a safe workplace. See, Reilly-Geiger v. Dougherty, 85 A.D.3d 1000 (2nd Dept. 2011). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a worksite, and thoseinvolving the manner in which the work is performed. Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (citations omitted). By contrast, when the manner of work is at issue, 'no liability will attach to the owner solely because [he or she] may have had notice of the allegedly unsafe manner in which work was performed' (citations omitted). Rather, when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (citations omitted)." Ortega v. Puccia, 57 A.D.3d 54, 61-62 (2nd Dept. 2008); see, Reyes v. Arco Wentworth Management Corp., 83 A.D.3d 47 (2nd Dept. 2011); LaRosa v. Internap Network Services Corp., 83 A.D.3d 905 (2nd Dept. 2011); Aragona v. State, 74 A.D.3d 1260 (2nd Dept. 2010); Martinez v. City of New York, 73 A.D.3d 993 (2nd Dept. 2010); Kwang Ho Kim v D & W Shin Realty Corp., 47 A.D.3d 616, 620 (2nd Dept. 2008); Quintavalle v. Mitchell Backhoe Service, Inc., 306 A.D.2d 454 (2nd Dept. 2003). "The determinative factor is whether the party had 'the right to exercise control over the work, not whether it actually exercised that right.'" Herrel v. West, 82 A.D.3d 933, 933-934 (2nd Dept. 2011); see, Bakhtadze v. Riddle, 56 A.D.3d 589 (2nd Dept. 2008).

"Moreover, '[a]lthough property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200 (citations omitted).'" Pilato v. 866 U.N. Plaza Associates, LLC, 77 A.D.3d 644, 646 (2nd Dept. 2010); see, Cabrera v. Revere Condominium, 91 A.D.3d 695 (2nd Dept. 2012). "A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed." McKee v. Great Atlantic & Pacific Tea Co., 73 A.D.3d 872 (2nd Dept. 2010); Ortega v. Puccia, 57 A.D.3d 54, 61-62 (2nd Dept. 2008).

In the case at bar, the evidence adduced clearly establishes that the Church defendants are not liable under Labor Law § 200, as they did not have notice of the allegedly defective condition, nor did they have the opportunity to direct or supervise the work, or take measures to ensure the safety of plaintiff Marcilio Marques ("plaintiff"). With regard to the motion by the City defendants, that branch of the motion to dismiss the complaint based upon the insufficiency of the Notices of Claims is denied. "The test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city to investigate ... Thus, in determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the [claim]." Rosenbaum v. City of New York, 8 N.Y.3d 1(2006). The Court finds that the allegations set forth therein were sufficient to put the City defendants on notice of the potential Labor Law causes of action that would possibly arise as a result of the accident. Likewise denied is that branch of the motion for dismissal of section 200, as the Marques plaintiffs have raised triable issues of fact as to whether the City defendants had actual or constructive notice of the unsafe condition, and exercised sufficient control over the work being performed to correct or avoid the unsafe condition.

II. Labor Law § 240(1)

A cause of action under section 240(1) of the Labor Law, imposes a 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, 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 where the work site is positioned at or below the level where materials or loads are being hoisted or secured. See, Wilinski v. 334...