Morin v. Heritage Builders Grp.

• Decision Date: 20 May 2021
• Docket Number: Index 20183176
• Citation: 2021 NY Slip Op 32912 (U)
• Parties: MARCO MORIN, Plaintiff, v. HERITAGE BUILDERS GROUP, LLC., and JOSEPH DUPUIS d/b/a J and J DRYWALL, Defendants. JOSEPH DUPUIS, Individually and d/b/a J and J DRYWALL, Third-Party Plaintiffs, v. WALL-TECH DRYWALL. LLC. Third-Party Defendant.
• Court: New York Supreme Court

2021 NY Slip Op 32912(U)

MARCO MORIN, Plaintiff,
v.
HERITAGE BUILDERS GROUP, LLC., and JOSEPH DUPUIS d/b/a J and J DRYWALL, Defendants.

JOSEPH DUPUIS, Individually and d/b/a J and J DRYWALL, Third-Party Plaintiffs,
v.
WALL-TECH DRYWALL. LLC. Third-Party Defendant.

Index No. 20183176

Supreme Court, Saratoga County

May 20, 2021

Unpublished Opinion

Daniel R. Santola, Esq. Powers Santola, LLP Attorney for Plaintiff Albany, York Daniel R. Santola, Esq. Powers & Santola, LLP Attorney for Plaintiff Albany, New York

Thomas J. O'Connor, Esq. Ronnie Sills Lindberg, Esq. Napierski, Vandenburgh, Napierski O'Connor, LLP Attorney for Defendant Heritage Builders Group, LLC Albany, York

Melissa A. Smallacombe, Esq. Burke, Scolamiero Hurd, LLP Attorrtey for Defendant/Third-Party Plaintiff Joseph Dupuis & J and J Drywall Hudson, New York

DECISION & ORDER

HON. DIANNE N. FREESTONE JUSTICE

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Plaintiff Marco Morin commenced this personal injury action on September 26, 2018 by filing a summons and complaint in the Saratoga County Clerk's Office.^[1] Thereafter, defendant Heritage Builders Group, LLC (hereinafter referred to as "Heritage") served an answer to the complaint dated October 23, 2018, which interposed nine affirmative defenses and two cross claims for indemnification against defendants Joseph Dupuis (hereinafter individually referred to as "Dupuis") and J and J Drywall (hereinafter collectively referred to as "J & J Drywall"). On or about October 30, 2018. J & J Drywall answered the complaint and asserted thirteen affirmative defenses and a cross claim against Heritage. On November 7, 2018, plaintiff served an amended complaint. On December 3, 2018, J & J Drywall served an answer to plaintiffs amended complaint. On December 27, 2018, Heritage served an amended answer to plaintiffs amended complaint. On December 16, 2019, J & J Drywall filed a third-party summons and complaint seeking indemnification against third-party defendant Wall-Tech Drywall, LLC (hereinafter referred to as "Wall-Tech"). By Order dated June 11, 2020, the Court granted J & J Drywall's motion for a default judgment against Wall-Tech. The parties have served numerous amended pleadings throughout the course of the proceedings concluding with the parties' stipulation to amend pleadings filed on February 7, 2020 wherein the parties consented that the amended answer of Heritage served on December 27, 2018 be deemed withdrawn and that it be substituted with Heritage's second amended answer.

On February 15, 2018, plaintiff was working at a construction site of a multi-family dwelling in the Timber Creek Development situated at 44 Cypress Street in the Town of Ballston, Saratoga Count}'. Plaintiff was reportedly injured when the elevated planking he was on, which ran from the scaffold to the windowsill, slipped from the windowsill while he was taping the seam

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of the sheetrocked cathedral ceiling. Heritage was the owner of said property and Dupuis was the owner of J & J Drywall. Heritage hired J & J Drywall to install the sheetrock at the subject property. J & J Drywall subcontracted with Wall-Tech to tape the sheetrock as part of the construction project. Plaintiff was an employee of Wall-Tech.

Following joinder of issue and discovery, by notice of motion dated February 22, 2021, plaintiff moved for summary judgment on his Labor Law §§ 240(1) and 241(6) causes of action pursuant to CPLR 3212. By notice of motion dated March 29, 2021, Heritage moved for summary judgment on its cross claims for indemnification against J & J Drywall. J and J Drywall opposed Heritage's motion by attorney's affirmation dated April 14, 2021. By notice of motion dated April 15. 2021, J & J Drywall opposed plaintiffs motion and cross-moved for summary judgment dismissing plaintiffs complaint along with the cross claims interposed by Heritage. By notice of motion dated April 16, 2021, Heritage opposed plaintiffs motion and cross-moved for summary judgment dismissing plaintiffs complaint. On April 26, 2021, plaintiff submitted a reply affirmation in support of his motion and in opposition to defendants' motions seeking dismissal of plaintiffs Labor Law § 240(1) and Labor Law § 241(6) causes of action. On April 26, 2021, Heritage submitted a reply to J & J Drywall's opposition to its motion for indemnification. On April 29, 2021, Heritage submitted a reply affirmation in support of heritage's cross-motion for summary judgment and in reply to plaintiffs opposition thereto. On April 29, 2021, J & J Drywall submitted an attorney affirmation in reply to plaintiffs opposition to its cross motion for summary judgment. Finally, on May 13, 2021, the Court afforded the parties an opportunity to virtually argue their respective motions and to address any of the issues contained within said papers.

The proponent of a summary judgment motion is obligated to make a prima facie showing of entitlement to judgment as a matter of law by tendering admissible evidence demonstrating the

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absence of a material question of fact (see Alvarez v Prospect Hosp, 68 N.Y.2d 320, 324 [1986]; Pullman v Silverman. 28 N.Y.3d 1060, 1062 [2016]; Andrew R. Mancini Associates. Inc. v Mary Imogene Bassett Hosp, 80 A.D.3d 933, 935 [3d Dept 2011]; Smith v Allen. 124 A.D.3d 1128 [3d Dept 2015]; Freitag v Village of Potsdam. 155 A.D.3d 1227, 1229 [3d Dept 2017]). If the moving party meets its initial burden, the burden then shifts to the nonmoving party to produce evidence sufficient to demonstrate a material issue of fact to avoid summary judgment (see Zuckerman v Citv of New York. 49 N.Y.2d 557, 562 [1980]; Stonehill Capital Mat.. LLC v Bank of the W.. 28 N.Y.3d 439, 448 [2016]; U.W. Marx. Inc. v Koko Contr. Inc.. 97 A.D.3d 893, 894 [3d Dept 2012]; Hicks v Berkshire Farm Ctr. & Servs. for Youth. 123 A.D.3d 1319 [3d Dept 2014]). It is well settled that a court reviewing a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party (see Vega v Restani Constr. Corp.. 18 N.Y.3d 499, 503 [2012]: Nomura Asset Capital Corp. v Cadwalader. Wickersham & Taft LLP. 26 N.Y.3d 40, 49 [2015]; Winne v Town of Duanesbure. 86 A.D.3d 779, 780 [3d Dept 2011]; Marra v Hushes. 123 A.D.3d 1307 [3d Dept 2014]). A court '"may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned"' Rock-Wright v O'Connor, 172 A.D.3d 1507, 1509 [3d Dept 2019], quoting Glick & Dolleck v Tri-Pac Export Corp.. 22 N.Y.2d 439, 441 [1968]).

Initially, plaintiffs reply affirmation states in pertinent part, that "[p]laintiff hereby withdraws and discontinues any claim based upon common law negligence and/or section 200 Labor Law." Accordingly, plaintiffs first and fourth causes of action are deemed withdrawn and, as such, are hereby dismissed.

Turning to plaintiffs motion for partial summary judgment on his remaining causes of action, plaintiff contends that he is entitled to summary judgment on his Labor Law § 240(1) and

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241(6) causes of action. In support, plaintiff proffered, inter alia, the pleadings, deposition testimony and an expert affidavit from Eugene R. Camerota, a professional engineer with expertise in accident reconstruction and construction accidents.

At his examination before trial, plaintiff testified that Dupuis contacted him regarding some dry wall finishing at a multi-family home in Timber Creek. Plaintiff indicated that he had worked with J & J Drywall on other projects and that they never had a written contract. Plaintiff also indicated that J & J Drywall would supply tools and equipment for him when the job required work above an elevation of 8 feet. Plaintiff testified that he had an aluminum stretch plank and ladder in his truck and had to retrieve one of J & J Drywall's scaffolds for the subject job. Plaintiff testified that he completed taping the second floor with his stilts and. after having a discussion with Dupuis, he retrieved the scaffold from a finished job in Stillwater, New York. Plaintiff testified that he assembled J & J Drywall's scaffold in the kitchen/dining area so he could begin taping the room which had a cathedral ceiling. Plaintiff testified that he setup "the scaffold with a plank running off it all the way to the windowsill." Plaintiff further testified that he was on the aluminum plank at the time of his fall and that it was his intention to run one piece of tape across the entire cathedral ceiling. Plaintiff also testified that he walked out on the platform, had his tools in his hand and was spreading compound when the aluminum plank slipped off the end of the windowsill.

In support of the motion plaintiff also submitted his affidavit. Plaintiff averred that he has been a taper for more than 35 years. Plaintiff averred that "[n]either [him]self nor [his] employer [had] any scaffolding so J & J [Drywall] agreed to provide the scaffolding for this taping job." Plaintiff further averred that the "only scaffolding supplied was one section of tubular metal scaffolding which had a working surface platform of 5 x 7 foot and was approximately 8 foot

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high." Plaintiff also averred that the process of taping dry wall requires that it "be done in a single stroke or sweep across the entire seam" to avoid "tell tail marks where the ends of the tape overlapped" or cracks where the two ends of tape are put together. Plaintiff attested that "[t]o avoid these unacceptable flaws applying the tape and smoothing it out needs to be done in one continuous application along the entire seam." Plaintiff also described the process of taping when drywall meets at angles greater than 90 degrees such as when taping cathedral ceilings. Plaintiff attested that the tape could not be applied in a continuous strip from the one section of scaffold that was supplied by J & J Drywall. Finally, plaintiff attested that this is how he was taught and how he...