Tyczynski v. 973 Fifth, LLC
| Decision Date | 04 April 2019 |
| Docket Number | Index No.: 512390/2016 |
| Parties | ANDREJ TYCZYNSKI, Plaintiff, v. 973 FIFTH, LLC, and WESTCHESTER CUSTOM KITCHENS, INC. d/b/a BEECH ASSOCIATES, Defendants. |
| Court | New York Supreme Court |
At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 4th day of April, 2019.
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 |
| Notice of Motion/Cross Motion and |
| Affidavits (Affirmations) Annexed |
| 1/2, 3/4, |
| Opposing Affidavits (Affirmations) |
| 5, 6, 7, |
| Reply Affidavits (Affitmations) |
| 8, 9, 10, 11, |
| Memorandum of Law |
| 12, 13, 14, 15 |
Upon the foregoing papers, and after oral argument, the Court finds as follows:
This is an action to recover damages for personal injuries allegedly sustained by the Plaintiff Andrzej Tyczynski (hereinafter "the Plaintiff") on June 25, 2014, while he was working at a property owned by Defendant 973 Fifth, LLC (hereinafter "Defendant 973"), located at 974 Fifth Avenue, New York, N. Y. (hereinafter "the Property" or "Premises"). At the time of the alleged incident the Plaintiff was employed by non-party SM Painting and was at the Property as a part of his employment. The Plaintiff alleges that he was plastering a wall at the Property and could not continue to plaster because he could not reach his work area with the assistance of the ladder he had, when his supervisor allegedly instructed him to utilize the wooden fireplace frame to reach the area at issue. The Plaintiff alleges that shortly after he moved from the ladder to the fireplace frame he lost his balance, fell and was injured.
Defendants Westchester Custom Kitchens, Inc. d/b/a Beech Associates (hereinafter "Defendant Beech") move (motion sequence #4) move for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing all causes of action against them. Specifically, Defendant Beech argues that the Plaintiff's Labor Law §200 and common law negligence claims should be dismissed as Defendant Beech contends that it did not have supervisory control over the Plaintiff and did not have notice of the alleged dangerous condition that led to the incident at issue. As to the Plaintiff's Labor Law §241(6) claim Defendant Beech contends that it should be dismissed given that the claims made pursuant to Industrial Code 12 NYCRR 23-1.5, 1.7, 1.8, 1.15, 1.16, 1.17, 1.19, 1.30, 2.1 and 2.6 were either not supportive of a Labor Law §241(6) claim or unfounded given the facts at issue.
Defendant 973 also moves (motion sequence #5) for an order pursuant to CPLR 3212, granting summary judgment in its favor and dismissing all causes of action against it. Defendant 973 contends that the claims of the Plaintiff and any and all cross-claims by Co-Defendant Beech should be dismissed given that Defendant 973 is entitled to the so called "homeowner's exemption" to the Plaintiff's Labor Law §§ 240(1) and 241(6) claims, because the home is a single family residence and Defendant 973 did not control the Plaintiff's work. Defendant 973 alleges that it is an LLC wholly owned by the principals, David Leuschen and Alexia Lueschen (husband and wife), and the Premises is a single family residence. Defendant 973 contends that the defendant's corporate status is irrelevant to establishing its prima facie burden and that what is significant is that Defendant 973 are owners of a one family dwelling and that they did not direct or control the work at issue. As to the Plaintiff's Labor Law §200 and common law negligence claims, Defendant 973 contends that these claims should be dismissed as Defendant 973 did not control or have a supervisory role over the Plaintiff's work.
"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 AD3d 493 [2nd Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [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 AD3d 70, 74 [2nd Dept, 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [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 AD2d 493 [2nd 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 [2nd Dept, 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2nd Dept, 1994].
"An owner of a one- or two-family dwelling is exempt from liability under Labor Law §§ 240(1) and 241(6) unless he or she directed or controlled the work being performed." Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 849, 823 N.Y.S.2d 477, 479 [2nd Dept, 2006]; Ortega v. Puccia, 57 A.D.3d 54, 59, 866 N.Y.S.2d 323, 328 [2nd Dept, 2008]. "The fact that title to an otherwise qualifying one- or two-family dwelling is held by a corporation rather than an individual homeowner does not, in and of itself, preclude application of the exemption."Assevero v. Hamilton & Church Properties, LLC, 131 A.D.3d 553, 556, 15 N.Y.S.3d 399, 402 [2nd Dept, 2005]; Castellanos v. United Cerebral Palsy Ass'n of Greater Suffolk, Inc., 77 A.D.3d 879, 909 N.Y.S.2d 757 [2nd Dept, 2010]; Parise v. Green Chimneys Children's Servs., Inc., 106 A.D.3d 970, 971, 965 N.Y.S.2d 608, 609 [2nd Dept, 2013]. However, the Defendant must also show that it did not "direct or control the work being performed." Garcia v. Pond Acquisition Corp., 131 A.D.3d 1102, 1103, 16 N.Y.S.3d 755, 756 [2nd Dept, 2015].
Turning to the merits of the application by Defendant 973, the Court finds that it has met its prima facie burden. In support of its application for dismissal of the Plaintiff's Labor Law §§240(1) and 241(6) claims, Defendant 973 relies on the deposition testimony and an Affidavit of David Leuschen, a member 973 Fifth, LLC, the deposition testimony of the Plaintiff, and the deposition testimony of Ludovit Gondkovsky, a former employee of Defendant Beech. In his Affidavit (Defendant 973 Motion, Exhibit J, Paragraph 3) David Leuschen states that "the only use of the premises has been solely as a one family home for the residence of my immediate family." When asked whether anyone from 973 Fifth LLC supervised or controlled the work performed at the premises, Mr. Lueschen testified at his deposition (Defendant 973 Motion, Exhibit P, Paage 21) "not that I'm aware of and "that the answer stays no." See Kosinski v. Brendan Moran Custom Carpentry, Inc., 138 A.D.3d 935, 937, 30 N.Y.S.3d 237, 239 [2nd Dept, 2016]. As a result, Defendant 973 satisfies its prima facie burden on whether it qualifies for the "homeowners exemption" in as much as it is a one family home not used for commercial purposes and the testimony of David Leuschen in both his deposition testimony and his affidavit contends that neither he nor Alexia Lueschen, his spouse, were directing or controlling the work being performed at the Premises. See Sandals v. Shemtov, 138 A.D.3d 720, 721, 29 N.Y.S.3d 448, 449 [2nd Dept, 2016]; Kosinski v. Brendan Moran Custom Carpentry, Inc., 138 A.D.3d 935, 937, 30 N.Y.S.3d 237, 239 [2nd Dept, 2016].
The Court also finds that the Plaintiff has not raised a material issue of fact as to whether Alexia Leuschen did in fact direct or control the work being performed, sufficient to overcome the homeowner's exemption from liability. In opposition to the application by Defendant 973, the Plaintiff does not challenge the fact that the property is a one or a two family home, but contends that Defendant 973 is not the appropriate entity to be covered by the "homeowners exemption." The Plaintiff contends that the exemption was not intended to protect, the principal members of Defendant 973 because they "are not unsophisticated homeowners". However, this is not the standard. A defendant must only establish "evidence showing that the home was used solely as a residence and not to operate a business or generate income, and that the defendant did not direct or control the work being performed." Garcia v. Pond Acquisition Corp., 131 A.D.3d 1102, 1103, 16 N.Y.S.3d 755, 756 [2nd Dept, 2015].
The Plaintiff has also failed to raise a material issue of fact as to whether Defendant 973 directed or controlled the work. In his deposition testimony, David Lueschen testified (Defendant 973 Motion, Exhibit P, Page 23) that Alexia Leuschen "ran a reasonable-sized design firm in her previous life, and I think met Ray [Beech] through that." While the Plaintiff also points to the deposition testimony of Ludovit Gondovsky, who was a former employee of Defendant Beech, who testified that (Defendant 973's Motion, Exhibit O, Page 53) he saw Alexia Leuschen at the job site several times, his testimony states that when she was there she spoke to the contractors "about like painting, choosing the color of the paint and stuff like that, and was probably toward the end of '14." "A homeowner's involvement in these areas reflects typical homeowner interest in the ongoing progress of...
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