Rimoldi v. Schanzer

• Decision Date: 14 February 1989
• Docket Number: No. 1,No. 2,1,2
• Citation: 147 A.D.2d 541,537 N.Y.S.2d 839
• Parties: Mario J. RIMOLDI, et al., Respondents, v. Robert SCHANZER, et al., Defendants, Samuel Millman, et al., Appellants (Action). Jose RAMIREZ, etc., Respondent, v. Robert SCHANZER, et al., Defendants; Samuel Millman, Appellant (Action).
• Court: New York Supreme Court — Appellate Division

Page 839

537 N.Y.S.2d 839

147 A.D.2d 541

Mario J. RIMOLDI, et al., Respondents, v.Robert SCHANZER, et al., Defendants,Samuel Millman, et al., Appellants(Action No. 1).

Jose RAMIREZ, etc., Respondent, v.Robert SCHANZER, et al., Defendants;

Samuel Millman, Appellant (Action No. 2).

Supreme Court, Appellate Division Second Department.

Feb. 14, 1989.

Sichol & Hicks, P.C., Suffern (John R. Lindstrom, of counsel), for appellants.

Ecker, Loehr & Ecker, Yonkers (William Nathaniel Carroll and Robert Corke, of counsel), for respondentsMarie J. Rimoldi and Diane Neidinger Rimoldi.

Before MOLLEN, P.J., and THOMPSON, KUNZEMAN, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In two actions to recover damages for wrongful death which are to be jointly tried, the defendants Samuel and Adrianne Millman(hereinafter the Millmans) appeal from an order of the Supreme Court, Rockland County(Kelly, J.), dated June 18, 1987, which denied their motion for summary judgment dismissing the complaint in ActionNo. 1 as against them and the complaint in ActionNo. 2 as against Samuel Millman.

ORDERED that the order is modified by deleting the provisions denying those branches of the Millmans' motion which were to dismiss(1) the demands for punitive damages against them in ActionNo. 1 and against Samuel Millman in ActionNo. 2, and (2) those causes of action in the complaints which seek to recover damages against them for alleged violations of the Workers' Compensation Law, the Education Law and the Occupational Safety and Health Act and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The instant action arises out of an accident which occurred in July 1983 at the Millmans' residence in Pomona, New York.The Millmans were in the process of having an inground pool installed in their backyard when two of the employees of the general contractor involved in the construction were accidentally killed by falling debris from a backyard patio.As a result of the accident, the estate of the decedent Vincent W. Rimoldi commenced a wrongful death action against the Millmans and the general contractors, and the estate of the decedent Anthony H. Ramirez commenced a wrongful death action against Samuel Millman and the general contractors.

The record establishes that in June 1983 the Millmans consulted with the defendantsLarry Rowe and Robert Schanzer d/b/a Leisure Pool Service regarding the installation of the inground pool in their backyard.Given the undersized nature of the Millmans' lot, the existence of a large tree in the middle of the yard and a concrete patio extending from the rear of the house, Schanzer recommended that an octagonal-shaped pool be constructed.Although the parties discussed the possibility of removing the tree, Mr. Millman allegedly decided not to have the tree taken down.As a result, the parties agreed to the installation of a 23-foot octagonal pool which would not necessitate the removal of either the tree or the patio.By contract dated July 3, 1983, the parties agreed to the terms of the construction.The contract provided that Schanzer & Rowe d/b/a Leisure Pool Service would "furnish all materials and perform all labor necessary to complete" the work.

The excavation work on the Millmans' pool began on or about July 7, 1983, and continued for about three days.At that time, neither the Millmans nor Schanzer had applied for a building permit.During one of the parties' preliminary discussions, Schanzer apparently told Mr. Millman that while a building permit is usually needed for the installation of a pool, the pool could be completed before the permit was obtained.Schanzer, however, did not advise the Millmans as to whether a permit should be obtained, although he did know that a permit was required.

On July 12, one of the Millmans' neighbors informed the local building inspector of the construction on the Millmans' property.That same day, the building inspector visited the Millmans' property and upon observing the work, advised Mr. Millman that he was required to have a building permit.The building inspector also indicated that the pool as planned did not conform with the local sideline requirements.

Mr. Millman advised Schanzer of his discussions with the building inspector and they then considered possible alternatives for constructing the pool so as to satisfy the sideline requirements.In order to maintain the presence of the tree in the backyard, which Schanzer felt was impractical to remove because of the size of its roots, Schanzer recommended that a portion of the backyard patio be removed.Mr. Millman consented to Schanzer's recommendations and the parties further agreed to change the configuration of the pool to make it slightly narrower in order to satisfy the sideline requirements.

The following day, July 13, Mrs. Millman and Schanzer went to the local building department.At that time, the building inspector personally informed Schanzer of the sideline requirements.On July 14, Mr. Millman visited the building department to file the building permit application and pay the requisite fee.Significantly, the application filed by Mr. Millman states that the builder and supervisor of the construction were the owners of the premises, namely the Millmans.

A factual dispute exists as to what instructions, if any, the building inspector gave to Mr. Millman on July 12 and 14 regarding the continuance of the construction of the pool without a building permit.Initially, during his examination before trial, Mr. Millman claimed that at no time prior to the issuance of the building permit did the building inspector discuss the issue of whether the construction could continue.However, in his affidavit in support of the motion for summary judgment Mr. Millman stated that prior to the issuance of the building permit, the building inspector advised him that the excavation could continue without a permit.In contrast, the building inspector, in a memorandum dated July 12, 1983, noted that on that date, following the inspection of the premises, he told Mr. Millman to stop the work and obtain a building permit.Similarly, in a subsequent affidavit, the building inspector stated that on July 12th, he ordered all work on the pool to cease until a building permit was issued.The building inspector also noted that when the application was filed by Mr. Millman there was no mention of the removal of a portion of the backyard patio or excavation of the area adjacent thereto.

The excavation work of the backyard resumed on July 15, 1983 even though no building permit had been issued.The general contractor determined that the backyard patio, which was a concrete slab approximately six inches thick, would be removed by digging under the patio and then hammering off pieces of the slab.The Millmans left for work on the morning of July 15th prior to the commencement of the excavation and returned home at approximately 3:30 P.M.When Mr. Millman walked to the backyard, he observed the workers digging and he noticed that some panels had been placed in the excavated areas.When Mr. Millman indicated that in his opinion the panels were "a little off", Schanzer ordered his workers to realign the panels.Mr. Millman then entered the house.Shortly thereafter, the rear-yard patio collapsed on the decedents who had been excavating beneath it.

The plaintiffs' claims against the Millmans are essentially premised on allegations that the Millmans participated in the direction and control of the construction and excavation on their property and as such violated various statutory provisions including Labor Law §§ 240(1)and241(6), which set forth requirements for conducting construction and excavation work.In addition, the plaintiffs claim, inter alia, that the Millmans violated the provisions of Labor Law § 200, which requires that an owner provide a safe place to work for the employees of a general contractor working on his or her premises.

Following service of their answer, the Millmans moved for summary judgment dismissing the complaint in both actions on the basis that they did not "direct or control" the construction or excavation of the pool and thus were excluded from liability under Labor Law §§ 240(1)and241(6).Additionally, the Millmans argued that they cannot be held liable for a breach of their statutory duty under Labor Law § 200 because the accident was caused not by a failure to provide a safe work place but rather by hazards which were inherent in the work which the contractor chose to perform.

The Supreme Court denied the Millmans' motion on the basis that a triable issue of fact exists as to whether the Millmans directed or controlled the installation of the pool and the excavation work.Additionally, the court determined that triable issues of fact exist on the issue of whether the Millmans breached their statutory duty under Labor Law § 200 and whether the breach, if any, was a proximate cause of the accident.We agree and, accordingly, affirm that part of the Supreme Court's order.

Labor Law § 240 sets forth certain standards which must be adhered to by general contractors and owners in conducting construction and excavation work and imposes absolute liability for injuries which occur as a result of a deviation from those standards.This liability is wholly independent of the owner's actual supervision or control of the workplace (Haimes v. New York Tel. Co., 46 N.Y.2d 863, 412 N.Y.S.2d 863, 385 N.E.2d 601;Picciotto v. Molloy Coll., 129 A.D.2d 619, 514 N.Y.S.2d 405).Moreover, Labor Law § 241(6) imposes a non-delegable duty of insuring that the area where the work is to be performed is "so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed"(see, Zimmer v. Chemung County Performing Arts, 65...