Flores v. Crescent Beach Club, LLC

208 A.D.3d 560

173 N.Y.S.3d 574

Robert FLORES, respondent,

v.CRESCENT BEACH CLUB, LLC, et al., defendants,Lad Creative, Inc., appellant

(and a third-party action).

2020–02706

Index No. 669/17

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

Argued—April 14, 2022

August 10, 2022

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for appellant.

Sullivan Papain Block McGrath Coffinas & Cannavo, P.C., New York, NY (Brian J. Shoot and Deanne M. Caputo of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the defendant Lad Creative, Inc., appeals from an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), dated December 12, 2019. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the motion of the defendant Lad Creative, Inc., which were for summary judgment dismissing the causes of action alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) insofar as asserted against it, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff allegedly was injured while demolishing a rotting wooden pergola at the Crescent Beach Club in Bayville. At the time of the accident, the plaintiff was standing on top of the pergola. He cut a piece of the pergola for demolition, and immediately thereafter, the piece he was standing on gave way and he fell to the ground. The plaintiff commenced two separate personal injury actions that were later consolidated, against, among others, the defendant Lad Creative, Inc. (hereinafter Lad), alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The plaintiff alleged that Lad acted as the general contractor on the project or as an agent of the owner.

Lad moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In an order dated December 12, 2019, the Supreme Court, among other things, denied that branch of Lad's motion. Lad appeals.

" Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" ( McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 ). Similarly, " Labor Law § 241(6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety’ to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed" ( Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ).

A party is a contractor subject to liability under Labor Law §§ 240(1) and 241(6) when it is responsible for coordinating and supervising the project and has a concomitant power to enforce safety standards and to hire responsible contractors (see Londono v. Dalen, LLC, 204 A.D.3d 658, 163 N.Y.S.3d 833 ; Valdez v. Turner Constr. Co., 171 A.D.3d 836, 839, 98 N.Y.S.3d 79 ; Williams v. Dover Home Improvement, Inc., 276 A.D.2d 626, 626, 714 N.Y.S.2d 318 ). "A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has the ‘ability to control the activity which brought about the injury’ " ( Guclu v. 900 Eighth Ave. Condominium, LLC, 81 A.D.3d 592, 593, 916 N.Y.S.2d 147, quoting Walls v. Turner Constr. Co., 4 N.Y.3d 861, 863–864, 798 N.Y.S.2d 351, 831 N.E.2d 408 ; see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317–318, 445 N.Y.S.2d 127, 429 N.E.2d 805 ).

Here, Lad failed to establish, prima facie, that it was not acting as a general contractor or agent of the owner of the premises when the accident occurred (see Londono v. Dalen, LLC, 204 A.D.3d 658, 163 N.Y.S.3d 833 ; Fumo v. NAB Constr. Corp., 289 A.D.2d 442, 443, 734 N.Y.S.2d 631 ). The evidence submitted in support its motion demonstrated, inter alia, that Lad's owner was involved with the hiring of the plaintiff's employer for the pergola demolition and replacement, that he provided some oversight on the job and some direction to the workers, and that he was present at the time of the accident. Since Lad failed to make a prima facie showing that it was not a general contractor or agent of the owner, the Supreme Court properly denied that branch of its motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against it, without regard to the sufficiency of the opposition papers (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 ).

"To succeed on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the accident" ( Doran v. JP Walsh Realty Group, LLC, 189 A.D.3d 1363, 1364, 134 N.Y.S.3d 787 ; see generally Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d at 349, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 502–504, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). Here, the cause of action alleging a violation of Labor Law § 241(6) is predicated on Industrial Code 12 NYCRR 23–3.3(c), which mandates continuing inspections during hand demolition operations to detect hazards "resulting from weakened or deteriorated floors or walls or from loosened material." In support of its motion, Lad established, prima facie, the inapplicability of this provision by demonstrating that the hazard arose from the plaintiff's actual performance of the demolition work itself, and not structural instability caused by the progress of the demolition (see Vega v. Renaissance 632 Broadway, LLC, 103 A.D.3d 883, 885, 962 N.Y.S.2d 200 ; Smith v. New York City Hous. Auth., 71 A.D.3d 985, 987, 897 N.Y.S.2d 232 ; Campoverde v. Bruckner Plaza Assoc., L.P., 50 A.D.3d 836, 837, 855 N.Y.S.2d 268 ). In opposition, the plaintiff failed to raise a triable issue of fact. Consequently, the Supreme Court should have granted that branch of Lad's motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against it.

Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to maintain a safe workplace (see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d at 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82 ). "An implicit precondition to [the] duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" ( Russin v. Louis N. Picciano & Son, 54 N.Y.2d at 317, 445...