Spirollari v. Breukelen Owners Corp.
| Decision Date | 13 January 2023 |
| Docket Number | Index No. 525474/2018,Motion Sequence Nos. 4,5 |
| Citation | 2023 NY Slip Op 30279 (U) |
| Parties | JORGO SPIROLLARI, Plaintiff, v. BREUKELEN OWNERS CORP, and SMRC MGMT LLC, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
At an IAS Term, Part 81 (MOA) of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 13th day of January, 2023.
PRESENT: HON. CARL J. LANDICINO, Justice.
DECISION AND ORDER
Recitation as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered (NYSCEF)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 87-98, 101-104, Opposing Affidavits (Affirmations)........................................................111-113 Reply Affirmation or Affidavit...............................................................115, 116-118, Memorandum of Law............................................................................... 100, 105, 114
Upon the foregoing papers, and after oral argument with no opposition, the Court finds as follows:
Plaintiff Jorgo Spirollari (hereinafter the "Plaintiff') alleges causes of action for violations of New York State Labor Law §§200 and 241(6) and common law negligence against Defendants Breukelen Owners Corp. ("Breukelen") and SMRC Mgmt, LLC. ("SMRC") (hereinafter referred to individually or collectively as the "Defendants"). Plaintiff alleges in his Verified Bill of Particulars that he was injured on October 23, 2018 while working at 57 Montague Street, Brooklyn, New York (hereinafter the "Premises"). Specifically, the Plaintiff alleges that he suffered personal injuries while using a table saw when a piece of wood shot into his eye.
The Defendants now move (motion sequence #4) for an order pursuant to CPLR 3212 granting summary judgment and dismissing the complaint. The Defendants argue that the Plaintiffs negligence and Labor Law 200 and 241(6) claims must be dismissed against them as neither Breukelen or SMRC directed or controlled the Plaintiffs work. Specifically, the Defendants contend that the Plaintiff was hired by Blerim Xeneili a/k/a Aleko Zeneli, a handyperson that previously worked at the Premises, to work on a project in Unit 12F for the owner of that unit. Defendants contend that they had no knowledge of this activity and that Zeneli was not working on their behalf or at their direction. The Defendants also argue that the Plaintiffs Labor Law 241(6) claims should be dismissed as the Plaintiff failed to plead and prove that the Defendants violated sufficiently specific provisions of the Industrial Code.[1]
The Plaintiff opposes the Defendants' motion and cross-moves (motion sequence #5) for an order pursuant to CPLR 3212 granting the Plaintiff summary judgment against the Defendants with respect to the issue of liability relating to the Plaintiffs Labor Law 241(6) and 200, and common law negligence claims. The Plaintiff argues that he was hired and supervised by an employee of the owner of the Premises, Defendant Breukelen, and also supervised by the managing agent of the Premises, Defendant SMRC.[2] "Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact.'" Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131 [1974]. The proponent for the summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74, 778 N.Y.S.2d 98 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Garnham & Han Real Estate Brokers v. Oppenheimer, 148 A.D.2d 493, 538 N.Y.S.2d 837 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2d Dept 1994], However, "[a] plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case..." if they can show "...that the defendant's negligence was a proximate cause of the alleged injuries." Tsyganash v. Auto Mall Fleet Mgmt., Inc., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74, 75 [2d Dept 2018]; Rodriguez v. City of New York, 31 N.Y.3d 312, 320, 101 N.E.3d 366, 371 [2018].
Labor Law § 200, Common Law Negligence
Liability under Labor Law § 200, relates to two different theories of liability. Liability may be found if the construction site at the premises is dangerous or unsafe or if the Defendant exercised supervision and control over the means and methods of the work. Under the theory of unsafe premises "a property owner may be held liable in common-law negligence and under Labor Law § 200 when the owner has control over the work site and either created the dangerous condition causing an injury, or failed to remedy the dangerous or defective condition while having actual or constructive notice of it." Korostynskyy v. 416 Kings Highway, LLC, 136 A.D.3d 758, 759, 24 N.Y.S.3d 747, 748 [2d Dept 2016]. For injuries arising from the manner in which work is performed, the liability must be premised upon one having the authority to exercise supervision and control over the work. See Lombardi v Stout, 80 N.Y.2d 290, 295 [1992]; Hernandez v Pappco Holding Co., 136 A.D.3d 981, 982 [2nd Dept, 2016]; Torres v City of New York, 127 A.D.3d 1163, 1165 [2nd Dept, 2015]; Gallello v MARJ Distribs. Inc., 50 A.D.3d 734, 735 [2nd Dept, 2008], "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." Torres v Perry St. Dev. Corp., 104 A.D.3d 672, 676 [2nd Dept, 2013] quoting Ortega v Puccia, 57 A.D.3d 54, 62 [2nd Dept, 2008], "[T]he right to generally supervise the work, stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law §200 or for common-law negligence." Banscher v Actus Lend Lease, LLC, 132 A.D.3d 707, 709 [2nd Dept, 2015], quoting Gasques v Slate of New York, 59 A.D.3d 666, 668 [2009], affd. 15 N.Y.3d 869 [2010], Turning to the merits of the Defendants' application in relation to the Plaintiffs Labor Law 200 and common law negligence claims, the Defendants argue that they cannot be held liable for the Plaintiffs injuries as they contend that they did not supervise or control the work of the Plaintiff and did not provide the Plaintiff with the equipment that he used. In support of this position, the Defendants rely on the deposition testimony of both the Plaintiff and the deposition of Egland Berkeley Hodge, an employee of Defendant Breukelen.
During his deposition, when asked who employed him to work at the Premises, the Plaintiff stated, "Blerim Zeneli." (Exhibit E, Page 23) When asked how long he had been employed by Zeneli prior to his accident, he stated, "[a] week." (Exhibit E, Page 24). When asked to identify the location in which he performed his work at the Premises, the Plaintiff answered, "[i]t was in 12F." (Exhibit E, Page 53) When asked if the work was limited to unit 12F only, the Plaintiff stated, "[y]es." (Exhibit E, Page 53). When asked if he had ever worked in that unit or the building previously, the Plaintiff stated, "[n]o." (Exhibit E, Page 53). When asked if he had ever spoken to anyone else in the building regarding his work, the Plaintiff stated, "[n]o." (Exhibit E, Page 54). When asked if he had entered into any type of contract with Mr. Zeneli, the Plaintiff stated, "[n]o." (Exhibit E, Page 54). When asked if he knew whether Mr. Zeneli worked at the building, the Plaintiff stated, "I don't know." (Exhibit E, Page 57). When asked how Mr. Zeneli was involved in the renovation, the Plaintiff stated, "[a]s far as I know he took the job from the lady of that unit and then he told me you are doing the job." (Exhibit E, Page 58). When asked to describe what occurred on the day of the accident, the Plaintiff stated that "[h]e [Zeneli] told me that I could do moldings and I can do the cabinets of the kitchen." (Exhibit E, Page 71) The Plaintiff then stated that "[h]e [Zeneli] asked me if I know how to do that, because if you do, I can pay you." (Exhibit E, Page 71). The Plaintiff also stated that "[t]he material for that type of work was there and that is the first day that 1 saw that table saw." (Exhibit E, Page 71). The Plaintiff stated that "I asked him if he has goggles and he told me no, he doesn't." (Exhibit E, Page 71). When asked whether anyone other than himself and Mr. Zeneli were inside unit 12F on the date of the accident, the Plaintiff stated "[n]o." (Exhibit E, Page 72). When asked if Mr. Zeneli was present when his accident occurred, the Plaintiff stated "[n]o." (Exhibit E, Page 76).
When asked what his role was at the Premises, Egland Berkeley Hodge stated, "[superintendent." (...
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