Poulin v. Ultimate Homes, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Poulin v. Ultimate Homes, Inc., 166 A.D.3d 667, 87 N.Y.S.3d 189 (N.Y. App. Div. 2018)
• Decision Date: 07 November 2018
• Docket Number: 2016–00873,Index No. 7149/13
• Parties: Guy POULIN, et al., Plaintiffs-Respondents, v. ULTIMATE HOMES, INC., Appellant, J.G. Fortin Drywall, Inc., Defendant-Respondent, et al., Defendants.

166 A.D.3d 667

87 N.Y.S.3d 189

Guy POULIN, et al., Plaintiffs-Respondents,

v.ULTIMATE HOMES, INC., Appellant, J.G. Fortin Drywall, Inc., Defendant-Respondent, et al., Defendants.

2016–00873

Index No. 7149/13

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

Argued—February 13, 2018

November 7, 2018

Burke, Scolamiero, Mortati & Hurd, LLP, Albany, N.Y. (Lia B. Mitchell and Peter Balouskas of counsel), for appellant.

Melley Platania, PLLC, Rhinebeck, N.Y. (Steven M. Melley of counsel), for plaintiffs—respondents.

Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Donna L. Cook of counsel), for defendant-respondent.

ALAN D. SCHEINKMAN, P.J., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Ultimate Homes, Inc., appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated December 8, 2015. The order, insofar as appealed from, (1) denied the motion of the defendant Ultimate Homes, Inc., for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and for summary judgment against the defendant J.G. Fortin Drywall, Inc., on its cross claim for common-law indemnification, (2) granted the converted motion of the defendant J.G. Fortin Drywall, Inc., for summary judgment dismissing the complaint insofar as asserted against it and, in effect, sua sponte, directed the dismissal of the cross claims of the defendant Ultimate Homes, Inc., against the defendant J.G. Fortin Drywall, Inc., for common-law indemnification and contribution, and (3) granted that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Ultimate Homes, Inc.

ORDERED that the appeal by the defendant Ultimate Homes, Inc., from so much of the order as granted the converted motion of the defendant J.G. Fortin Drywall, Inc., for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as the defendant Ultimate Homes, Inc., is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, in effect, sua sponte, directed the dismissal of the cross claims of the defendant Ultimate Homes, Inc., against the defendant J.G. Fortin Drywall, Inc., is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[a][2] ; [c] ); and it is further,

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof which, in effect, sua sponte, directed dismissal of the cross claims of the defendant Ultimate Homes, Inc., against the defendant J.G. Fortin Drywall, Inc., (2) by deleting the provision thereof which denied those branches of the motion of the defendant Ultimate Homes, Inc., which were for summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence insofar as asserted against it, and for summary judgment against the defendant J.G. Fortin Drywall, Inc., on its cross claim for common-law indemnification, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as reviewed, with costs payable by the defendant J.G. Fortin Drywall, Inc., to the defendant Ultimate Homes, Inc.

The plaintiff Guy Poulin (hereinafter the plaintiff), a drywall installer, alleged that he was injured at a residential construction site when he fell through the opening of an unfinished stairwell into the basement of the premises. The plaintiff, and his wife suing derivatively, commenced this action asserting causes of action pursuant to Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence, against: (1) the general contractor, the defendant Ultimate Homes, Inc. (hereinafter Ultimate), (2) the drywall subcontractor, the defendant J.G. Fortin Drywall, Inc. (hereinafter Fortin), and (3) the homeowners, the defendants Charles and Ruth Nielson (hereinafter together the Nielsons). Ultimate asserted cross claims against Fortin for contribution and common-law indemnification. Fortin pleaded as an affirmative defense that the plaintiff was its employee and that the action was, therefore, barred pursuant to Workers' Compensation Law § 11, and asserted cross claims for contribution and common-law indemnification against Ultimate and the Nielsons.

After discovery, the Nielsons moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Ultimate moved for summary judgment dismissing the plaintiffs' Labor Law § 200 and common-law negligence causes of action insofar as asserted against it, and for summary judgment on its cross claim against Fortin for common-law indemnification. Ultimate argued that the accident arose from the method and manner of the work, or, in the alternative, if the court determined that the plaintiff's injury was caused by a dangerous premises condition, that Ultimate did not create or have actual or constructive notice of it. The plaintiffs cross-moved, inter alia, for summary judgment on the issue of liability on their cause of action pursuant to Labor Law § 240(1) against Ultimate and Fortin. Fortin moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that it was barred by Workers' Compensation Law § 11.

The Supreme Court, inter alia, granted that branch of the Nielsons' motion which was for summary judgment dismissing the complaint insofar as asserted against them, denied Ultimate's motion for summary judgment dismissing the causes of action pursuant to Labor Law § 200 and common-law negligence insofar as asserted against it and for summary judgment on its cross claim against Fortin for common-law indemnification, granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on their cause of action pursuant to Labor Law § 240(1) against Ultimate, converted Fortin's motion to a motion for summary judgment and, thereupon, granted Fortin's motion for summary judgment dismissing the complaint insofar as asserted against it. Further, although Fortin did not move for relief against Ultimate, the Supreme Court, in effect, sua sponte, directed dismissal of Ultimate's cross claims against Fortin. Ultimate appeals, and we modify.

We agree with the Supreme Court's determination to grant that branch of the plaintiffs' cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against Ultimate. The plaintiffs established, prima facie, that the plaintiff was injured when he fell through an open, unfinished stairwell and that he was not provided with safety devices to prevent or break his fall (see King v. Malone Home Bldrs., Inc., 137 A.D.3d 1646, 28 N.Y.S.3d 511 ; Cody v. State of New York, 52 A.D.3d 930, 859 N.Y.S.2d 316 ; Brandl v. Ram Bldrs., Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511 ; Perkins v. Loewentheil & Daughters, 282 A.D.2d 510, 723 N.Y.S.2d 503 ; John v. Baharestani, 281 A.D.2d 114, 721 N.Y.S.2d 625 ; Schneider v. Hanover E. Estates, 237 A.D.2d 274, 654 N.Y.S.2d 789 ). Regardless of the precise manner in which the accident occurred, a defendant is not absolved from liability where, as here, a plaintiff's injuries are at least partially attributable to the defendant's failure to provide protection as mandated by the statute (see Nephew v. Klewin Bldg. Co., Inc., 21 A.D.3d 1419, 804 N.Y.S.2d 157 ; Cammon v. City of New York, 21 A.D.3d 196, 201, 799 N.Y.S.2d 455 ; Laquidara v. HRH Constr. Corp., 283 A.D.2d 169, 724 N.Y.S.2d 53 ). In opposition, Ultimate failed to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).

However, the Supreme Court should not have denied those branches of Ultimate's motion which were for summary judgment dismissing the causes of action pursuant to Labor Law § 200 and common-law negligence insofar as asserted against it. " Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work" ( Ortega v. Puccia, 57 A.D.3d 54, 60, 866 N.Y.S.2d 323 ). "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 work site, and those involving the manner in which the work is performed" ( id. at 61, 866 N.Y.S.2d 323 ). Where "a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation" ( Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 ; see Lombardi v. Stout, 80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 604 N.E.2d 117 ). "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" ( Ortega v. Puccia, 57 A.D.3d at 62, 866 N.Y.S.2d 323 ). "[M]ere 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" ( id. ; see Suconota v. Knickerbocker Props., LLC, 116 A.D.3d 508, 508, 984 N.Y.S.2d 27 ).

Here, Richard Miller, Ultimate's lead...