Hamm v. Review Assocs.

2022 NY Slip Op 01011

Peter Hamm, Appellant, v. Review Associates, LLC, et al., Respondents (and a third-party action).

No. 2019-09299, Index No. 513791/17

Supreme Court of New York, Second Department

February 16, 2022

Krentsel & Guzman, LLP, New York, NY (Marcia K. Raicus of counsel), for appellant.

Goldberg Segalla LLP, Garden City, NY (Theodore W. Ucinski III of counsel), for respondent Review Associates, LLC.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Stacey Seltzer of counsel), for respondent Fresh Direct LLC.

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated July 11, 2019. The order granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the defendants' separate motions which were for summary judgment dismissing the Labor Law § 240(1) cause of action insofar as asserted against each of them, and substituting therefor a provision denying those branches of the motions, and (2) by deleting the provision thereof granting those branches of the motion of the defendant Fresh Direct, LLC, which were for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action insofar as asserted against it, and substituting therefor a provision denying those branches of its motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff, an employee of the third-party defendant, allegedly fell from a ladder and sustained injuries while he was working at premises located in Long Island City, which were owned by the defendant Review Associates, LLC (hereinafter Review), and leased by Review to the defendant Fresh Direct, LLC (hereinafter Fresh Direct). At the time of the accident, Fresh Direct had a service contract with the plaintiff's employer to service/maintain the security system it had previously installed on the Fresh Direct premises. The accident occurred when the plaintiff was in the process of placing a security camera back into its plastic protective housing after testing it, and the ladder, which he alleged had been given to him by a Fresh Direct employee just prior to the accident, slipped, and he fell. The camera had not been working for some time prior to the accident and was located approximately 20 feet from the ground and mounted to a concrete cinder block wall. The plaintiff alleged that one of the locks on the side of the ladder had broken off and that the caps that covered the metal feet were missing on one side. After the accident, the plaintiff commenced the instant action against Review and Fresh Direct to recover damages for personal injuries, alleging common-law negligence, and violations of Labor Law §§ 200, 240(1), and 241(6) against both defendants. He alleged, inter alia, that the accident occurred as a result of a dangerous, hazardous, and/or defective ladder. Review and Fresh Direct separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the defendants' motions. The plaintiff appeals.

"Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers" (Aragona v State of New York, 147 A.D.3d 808, 809 [internal quotation marks omitted]; see Rizzuto v L.A. Wenger Contr. Co., 91 N.Y.2d 343, 348). "To establish liability under Labor Law § 241(6), a plaintiff or a claimant 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 case" (Aragona v State of New York, 147 A.D.3d at 809; see Hricus v Aurora Contrs., Inc., 63 A.D.3d 1004, 1005).

Both Review and Fresh Direct, established, prima facie, that the plaintiff failed to plead any Industrial Code violations in either the complaint or bill of particulars (see Borland v Sampson Steel Fabricators, 298 A.D.2d 831, 833; Raposo v WAM Great Neck Assn., 251 A.D.2d 392, 393; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502). Therefore, the defendants established, prima facie, their respective entitlement to judgment as a matter of law dismissing this cause of action insofar as asserted against each of them by demonstrating that this cause of action was not applicable (see Raposo v WAM Great Neck Assn., 251 A.D.2d at 393). In opposition, the plaintiff failed to raise a triable issue of fact in this regard as to either defendant (see Zholanji v 52 Wooster Holdings, LLC, 188 A.D.3d 1300, 1303). Thus, the Supreme Court properly granted those branches of the defendants' motions which were for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against each of them.

To prevail on a cause of action under Labor Law § 240(1), a plaintiff must establish, among other things, that he or she was injured during the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d 650, 652-653 [internal quotation marks omitted]; see Stockton v H & E Biffer Enters. No. 2, LLC, 196 A.D.3d 709, 710). "In determining whether a particular activity constitutes 'repairing,' courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)" (Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d at 653, citing Esposito v New York City Indus. Dev. Agency, 1 N.Y.3d 526, 528; see Stockton v H & E Biffer Enters. No. 2, LLC, 196 A.D.3d at 710). "Generally, courts have held that work constitutes routine maintenance where the work involves 'replacing components that require replacement in the course of normal wear and tear'" (Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 A.D.3d at 653, quoting Esposito v New York City Indus. Dev. Agency, 1 N.Y.3d at 528; see Stockton v H & E Biffer Enters. No. 2, LLC, 196 A.D.3d at 710; Gonzalez v Woodbourne Arboretum, Inc., 100 A.D.3d 694, 697). "Where something has gone awry, however, requiring repair, section 240(1) is applicable" (Parente v 277 Park Ave. LLC, 63 A.D.3d 613, 614; see e.g. Nowakowski v Douglas Elliman Realty, LLC, 78 A.D.3d 1033, 1034; Juchniewicz v Merex Food Corp., 46 A.D.3d 623, 624; Lofaso v J.P. Murphy Assoc., 37 A.D.3d 769, 771; Sprague v Peckham Materials Corp., 240 A.D.2d 392, 393).

Contrary to the defendants' assertions, neither defendant established its prima facie entitlement to judgment as a matter of law dismissing this cause of action insofar as asserted against each of them on the ground that the plaintiff, at the time he fell, was merely engaged in routine maintenance. The evidence submitted by the defendants in support of their respective motions, which included a transcript of the plaintiff's deposition testimony, raised triable issues of fact as to whether he was engaged in repairs or routine maintenance at the time the accident occurred (see Cantalupo v Arco Plumbing & Heating, Inc., 194 A.D.3d 686, 688). Since neither defendant established its prima facie entitlement to judgment as a matter of law dismissing this cause of action insofar as asserted against each of them, it is unnecessary for this Court to address whether the plaintiff's opposition papers raised a triable issue of fact in this regard (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). Thus, the Supreme Court should have denied those branches of the defendants' motions which were for summary judgment dismissing the cause of action alleging violations of Labor Law § 240(1) insofar as asserted against each of them.

Under the common law, a property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v 45 Tiemann Assoc., 87 N.Y.2d 871, 872; Basso v Miller, 40 N.Y.2d 233, 241). Indeed, "[a] landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" (Groom v Village of Sea Cliff, 50 A.D.3d 1094, 1094 [internal quotation marks omitted]; see Mowla v Baozhu Wu, 195 A.D.3d 706, 707). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (Steed v MVA Enters., LLC, 136 A.D.3d 793, 794 [internal quotation marks omitted]; Mowla v Baozhu Wu, 195 A.D.3d at 707 [internal quotation marks omitted]). In a premises liability case, a defendant landowner, or a party in possession or control of real property, moving for summary judgment has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it (see Mowla v Baozhu Wu 195 A.D.3d at 707; Fields v New York City Hous. Auth., 186 A.D.3d 1330, 1330-1331; Gairy v 3900 Harper Ave., LLC, 146 A.D.3d 938, 938; see also Monastiriotis v Monastiriotis, 141 A.D.3d 510, 511). "[W]hether a dangerous or defective condition exists on...