Morin v. Heritage Builders Grp., LLC

• Decision Date: 01 December 2022
• Docket Number: 533628
• Citation: 211 A.D.3d 1138,179 N.Y.S.3d 436
• Parties: Marco MORIN, Appellant—Respondent, v. HERITAGE BUILDERS GROUP, LLC, et al., Respondents—Appellants. (And a Third-Party Action).
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 1138

179 N.Y.S.3d 436

Marco MORIN, Appellant—Respondent,

v. HERITAGE BUILDERS GROUP, LLC, et al., Respondents—Appellants.(And a Third-Party Action).

533628

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

Calendar Date: October 20, 2022

Decided and Entered: December 1, 2022

Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for appellant-respondent.

Napierksi, VanDenburgh, Napierski & O'Connor, LLP, Albany (Thomas J. O'Connor of counsel), for Heritage Builders Group, LLC, respondent-appellant.

Burke, Scolamiero & Hurd, LLP, Albany (Steven V. DeBraccio of counsel), for Joseph Dupuis, respondent-appellant.

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Cross appeals from an order of the Supreme Court (Dianne N. Freestone, J.), entered June 8, 2021 in Saratoga County, which, among other things, denied plaintiff's motion for summary judgment and partially denied defendants’ cross motions for summary judgment dismissing the complaint and cross claims.

In February 2018, plaintiff, a taper employed by third-party defendant Wall–Tech Drywall, LLC, fell and was injured while working at a construction site on the subject property, which was owned by defendant Heritage Builders Group, LLC. As relevant here, Heritage contracted with defendant Joseph Dupuis to install sheetrock at the subject property and Dupuis subcontracted with Wall–Tech to perform taping of the sheetrock at the construction site.

In September 2018, plaintiff commenced this action alleging that, among other things, his injuries resulted from defendants’ failure to comply with Labor Law §§ 240(1) and 241(6). Thereafter, Heritage answered and raised, among other things, cross claims for indemnification against Dupuis. Dupuis answered the complaint and cross-claimed against Heritage. Dupuis also filed a third-party complaint seeking indemnification from Wall–Tech. Supreme Court granted Dupuis’ motion for a default judgment against Wall–Tech for indemnification for damages due to Wall–Tech's failure to appear or answer. Following joinder of issue and discovery, plaintiff moved for partial summary judgment against defendants as to the Labor Law §§ 240(1) and 241(6) causes of action. Thereafter, Heritage moved for summary judgment on its cross claims for indemnification against Dupuis. Dupuis cross-moved for summary judgment dismissing plaintiff's complaint and the cross claims brought by Heritage. Heritage then also cross-moved for summary judgment dismissing plaintiff's complaint. Supreme Court denied plaintiff's and defendants’ motions for summary judgment as to the Labor Law § 240(1) claim, finding that the parties’ conflicting expert opinions created triable issues of fact. The court granted defendants’ cross motions for summary judgment dismissing the Labor Law § 241(6) claim and denied as premature Heritage's motion for summary judgment as to its cross claims for indemnification against Dupuis. These cross appeals ensued.

Plaintiff contends that Supreme Court improperly dismissed his motion for summary judgment as to the Labor Law § 240(1) claim. As relevant here, Labor Law § 240(1) states that "[a]ll contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding ... and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed" ( Labor Law § 240[1] ). Liability under this statute "arises when a worker's injuries are the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" ( Begeal v. Jackson, 197 A.D.3d 1418, 1418, 153 N.Y.S.3d 681 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011] ). "Thus, to prevail on a motion for summary judgment for a Labor Law § 240(1) claim, a plaintiff bears the burden of showing, as a matter of law, that the statute was violated and that the violation was the proximate cause of his or her injuries" ( Begeal v. Jackson, 197 A.D.3d at 1419, 153 N.Y.S.3d 681 ). "Showing potential comparative negligence by the [plaintiff] does not avoid summary judgment. A defendant can, however, raise a factual issue by presenting evidence that the device furnished was adequate and properly placed and that the conduct of the [plaintiff] may be the sole proximate cause of his or her injuries" ( Portes v. New York State Thruway Auth., 112 A.D.3d 1049, 1050, 976 N.Y.S.2d 232 [3d Dept. 2013] [internal citations, quotation marks and brackets omitted], lv dismissed 22 N.Y.3d 1167, 985 N.Y.S.2d 469, 8 N.E.3d 845 [2014] ; see Ball v. Cascade Tissue Group–N.Y., Inc., 36 A.D.3d 1187, 1188, 828 N.Y.S.2d 686 [3d Dept. 2007] ).

In support of his motion, plaintiff submitted, among other things, plaintiff's deposition transcript, Dupuis’ deposition transcript, plaintiff's affidavit and an expert affidavit by Eugene Camerota, a registered professional engineer. During his deposition, plaintiff testified that to tape in the kitchen/dining area at the subject property, which had a cathedral ceiling, he needed scaffolding, which he obtained from Dupuis’ other job site. He explained that he began taping at the far edge of the ceiling and moved two to three times with the scaffold to cover the ceiling, section by section. He testified that after moving the scaffold a few times, he ran a plank from the scaffold to the windowsill so that he could run one piece of tape across the entire room. He was walking on the plank before falling. Significantly, in his affidavit, plaintiff explained that it is necessary to run one piece of tape across the entire room to avoid "tell ta[le] marks where the ends of the tape overlap[ ]" and "unacceptable flaws." Plaintiff stated that this method is how he performed his work throughout his professional career and "how all professional tapers work."¹ Plaintiff's expert, Camerota, opined that this continuous single sweep method is preferable because stopping and starting in different sections often results in an "unacceptable wavy line" and creates "tell-tale lines." Camerota also opined that scaffolding was the only appropriate safety device to use in this job and that one section of scaffolding was "insufficient to perform the work of taping the long seams in the ceiling in a professional manner which calls for the various steps to each be done in one continuous sweep." He further stated that the failure to provide plaintiff with sufficient scaffolding was "a substantial factor in causing the collapse of the stretch plank and resultant injuries." The "foregoing evidence was sufficient to establish on a prima facie basis that plaintiff's injury arose from an elevation-related hazard, that defendant[s] failed to provide adequate safety devices, and that the failure proximately caused" plaintiff's injuries ( Kropp v. Town of Shandaken, 91 A.D.3d 1087, 1088, 937 N.Y.S.2d 345 [3d Dept. 2012] ; see Markou v. Sano–Rubin Constr. Co., Inc., 182 A.D.3d 674, 677, 122 N.Y.S.3d 386 [3d Dept. 2020] ).

In support of its own motion, and in response to plaintiff's motion, Dupuis submitted, among other things, an expert affidavit by John Coniglio, a safety professional, Dupuis’ affidavit and an expert affidavit by Ernest Gailor, a licensed professional engineer. Coniglio, who detailed his experience with "drywall construction and job set up," disagreed with plaintiff's contention that his method of taping was necessary and instead opined that the scaffold could have been moved along the tape line "without any detriment to quality of the work being performed." He stated that using one line of tape as plaintiff did was "simply an issue of preference and perhaps convenience." He opined that plaintiff's injury was caused by plaintiff himself and could have been avoided if he had used the available scaffold properly.² Although plaintiff takes issue with Coniglio's qualifications, "these purported shortcomings go to the weight, and not the admissibility, of the opinion evidence" ( LaScala v. QVC, 201 A.D.3d 798, 801, 162 N.Y.S.3d 383 [2d Dept. 2022] ; see Specfin Mgt. LLC v. Elhadidy, 201 A.D.3d 31, 38, 158 N.Y.S.3d 366 [3d Dept. 2021] ). Given that Coniglio's affidavit raised a question of fact as to whether plaintiff was the sole proximate cause of his injuries and whether Labor Law § 240(1) was violated, inasmuch as it is disputed whether one scaffold was sufficient to perform the job, defendants rebutted plaintiff's prima facie case (see Petticrew v. St. Lawrence Cement, Inc., 57 A.D.3d 1266, 1268, 870 N.Y.S.2d 556 [3d Dept. 2008] ; Canino v. Electronic Tech. Co., 28 A.D.3d 932, 933–934, 813 N.Y.S.2d 557 [3d Dept. 2006] ). As such, Supreme Court properly denied plaintiff's motion for summary judgment as to this cause of action. For these same reasons, Supreme Court properly denied defendants’ cross motions for summary judgment as to Labor Law § 240(1).

Contrary to plaintiff's contention, we also find that Supreme Court properly partially granted defendants’ cross motions by dismissing plaintiff's Labor Law § 241(6) cause of action. "To prevail on a Labor Law § 241(6) claim, a plaintiff must demonstrate the violation of a regulation setting forth a specific standard of conduct applicable to the working conditions which existed at the time of the injury and that the violation was the proximate cause of the injury" ( Hall v. Queensbury Union Free Sch. Dist., 147 A.D.3d 1249, 1251, 47 N.Y.S.3d 765 [3d Dept. 2017] [internal quotation marks and citations omitted]; see Edwards v. State Univ. Constr. Fund, 196 A.D.3d 778, 785 n. 7, 151 N.Y.S.3d 464 [3d Dept. 2021] ). Here, plaintiff relies on 12 NYCRR 23–5.22 [c], which...