De Lopez v. 234 Decatur St.

1

2024 NY Slip Op 30195(U)

PATRICIA BIDO DE LOPEZ, Plaintiff, v. 234 DECATUR STREET LLC, and MASTERPIECE S.A. CORP., Defendants.

Index No. 514256/2019, Motion Seq. Nos. 7, 8

Supreme Court, Kings County

January 16, 2024

Unpublished Opinion

DECISION/ORDER

HON DEBRA SILBER, J.S.C.

Recitation as required by CPLR 2219(a), of the papers considered in the review of these motions for summary judgment.

Papers

NYSCEF

Notice of Motion, Affirmation and Exhibits Annexed........

107-118, 131; 119-124

Answering Affidavits..................

132-135,136-144; 126-130

Reply Affidavits.....................

147-148

Upon the foregoing cited papers, the Decision/Order on these motions is as follows:

This is a Labor Law action commenced by plaintiff on June 27, 2019. The accident took place on April 16, 2019, at a construction site located at 234 Decatur Street, Brooklyn, NY. The complaint asserts causes of action premised on violations of Labor Law §§ 240 (1), 241 (6), 241-a, and 200, as well as for common-law negligence. Defendants each answered the complaint and discovery ensued. The case is now on the trial calendar.

In motion sequence #7, plaintiff moves for an order granting her partial summary judgment on her claims under Labor Law §§ 240 (1) and 241 (6). In motion sequence #8 defendant 234 Decatur Street LLC (hereafter "Decatur") moves for an order granting it summary judgment and dismissing the plaintiff's complaint as well as the co-defendant's cross claims. Both defendants have opposed plaintiff's motion, but only plaintiff has opposed Decatur's motion.

While defendant Decatur opposes plaintiff's motion substantively, it also bases its motion on a jurisdictional issue, that the defendant as the property owner is exempt from liability under the homeowner's exemption applicable to Labor Law §§ 240 (1) and 241 (6). In addition defendant also claims it cannot be liable under Labor Law § 200 or common law negligence as it did not direct or control the means and methods of the work.

The court will address the claim concerning the homeowner's exemption first. Decatur claims that the sole owner of the limited liability company is a woman named Doreen Deleon, who purchased the property in 2017 in the name of the LLC. Counsel avers in his affirmation in support that while it was a four-family when purchased, she "intends" to convert it into a two-family house. He states "She intends to convert the third and fourth floors into one unit for Nasiline or the possibility of another family member living within the Brownstone" [Doc 130 ¶14]. The only items submitted in support of this motion are three EBT transcripts, one for each of the three parties. It is not possible to make a prima facie case on this claim with EBT transcripts. Therefore, the court must find that Decatur is not entitled to the homeowner's exception. There is no evidence that Ms. Deleon resides at the premises, nor is there any evidence that she has already or actually "intends' to convert it into a two-family house. As she has failed to eliminate all triable issues of fact on the issue of whether she is entitled to the homeowner's exemption, she cannot obtain summary judgment (see Pawelic v Siegel, 220 A.D.3d 883 [2d Dept 2023]; Parrino v Rauert, 208 A.D.3d 672 [2d Dept 2022]). As the court makes clear in Parrino, "Owners of one- or two-family dwellings are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed (see Bartoo v Buell, 87 N.Y.2d 362, 367, 662 N.E.2d 1068, 639 N.Y.S.2d 778; Khan v Khan, 197 A.D.3d 1165, 1167, 153 N.Y.S.3d 529). The applicability of the exemption turns on whether the site and purpose of the work were connected to the owner's residential use of the property (see Khela vNeiger, 85 N.Y.2d 333, 337-338, 648 N.E.2d 1329, 624 N.Y.S.2d 566; Marquez v Mascioscia, 165 A.D.3d 912, 913, 86 N.Y.S.3d 180). "Where an owner engages in both commercial and residential uses of the property, a determination as to whether the exemption applies must be based on the owner's intentions at the time of the injury." Here, four years after the plaintiff's accident, the property is still currently registered^[1] with the City of NY as a four-family multiple dwelling [Doc 128]. Further, the permit from the NYC Department of Buildings that was issued to Masterpiece is for changing a four-family building into a three-family building.^[2]

Plaintiff supports her motion with an affirmation of counsel, the pleadings, plaintiff's bill of particulars, a copy of the deed to Decatur, the three parties' EBT transcripts, a copy of the 2017 contract between the defendants, and an affidavit executed by someone with defendant Masterpiece for submission in a separate declaratory judgment action. The court notes that the insurance company won the action and Masterpiece has no insurance for this accident, neither Worker's Compensation nor liability, based on the insurance company's claim that Masterpiece had misrepresented the nature of its business in its application for insurance, thus permitting plaintiff to sue her employer. A copy of the court's decision is at Doc 114.

Plaintiff was deposed on June 21,2021. The deposition was held on Zoom. Plaintiff was provided with a Spanish interpreter. She lives in Brooklyn with her children and is divorced. She came to the U.S. in 2014 from the Dominican Republic. She has a green card. She started working in construction in the summer of 2018 for Masterpiece. A friend who worked there brought her to the job site he was working on, and she was hired. She described her duties as "cleaning; there was taking out the garbage; there was picking up debris; there was bringing over materials; there was breaking walls. Then you have to pick up the debris, then you have to get rid of it. And you have to take in wood deliveries, bring it to wherever it was needed. We would have to sand down doors. All sorts of construction type work" [Doc 122 Page 34-35], She had not taken any classes in construction or safety.

The job site was owned by defendant Decatur and Masterpiece was the general contractor. She worked for Masterpiece as a laborer. The owner, she believes, is Michael Reagan. He does not speak Spanish, and she does not speak English. Her supervisors were Vinny and Wilmo. She was always paid in cash. She had started working at the Decatur project about five months before the accident. She came to work each day wearing a company sweater, jeans, work boots and a company hard hat. She brought her own gloves in case none were available from Masterpiece. They gave her goggles. On the date of the accident, plaintiff arrived in the morning and Wilmo told her to go upstairs to the top floor with paper towels and spray cleaner and to clean the top-floor apartment they had finished work on. He said there was already a ladder in the apartment, and she should use it [id. Page 49]. She complied, and began cleaning, working alone. There was only one ladder on the top floor. There were a number of different ladders used at the building during the work, and they were all owned by Masterpiece. This one was an A-frame ladder, with maybe seven steps. It was lying on the floor in the hallway. She did not need to use the ladder earlier in the day. She had not used this ladder before. After lunch, she was working in the master bedroom and was about to clean the moldings above the closet. She opened the ladder on the bedroom floor and made sure it was locked [id. Page 58]. It appeared old and dirty. She climbed up the ladder to the fifth step and started working. When she leaned to the right, "that's when it felt unstable or started moving around, and it started to come down, and I came down with it" [id. Page 66]. She and the ladder fell to the floor. She fell onto her right side. She got up and was in pain in her back, right shoulder, and right leg. She found Wilmo and told him what happened and that she was going to the hospital [id. Page 87], She went to Jamaica Hospital. There are no photos of the ladder. There were no witnesses to the accident.

Michael Reagan was deposed on July 12, 2022, but testified that he was not at the site at the time of the plaintiff's accident. He visited the site a few times per month [Doc 139 Page 39]. He testified that at the time of plaintiff's accident he was not an owner or an officer of Masterpiece. His title was managing director. He is now a vice-president. He agreed that Masterpiece was the general contractor for the job. He said that it was 90% finished, but not completely finished. The court notes that this could be because their insurance was cancelled, but Mr. Reagan blamed the delay on the Buildings Department. He said he had signed the contract with the owner for the work and acknowledged that it was for almost $600,000. He could not say if plaintiff worked for Masterpiece. He did not know if Masterpiece provided ladders. He claimed there were subcontractors at the job site but could not name any. He also was unable to name any of Masterpiece's employees.

Wilmo Alvarez was deposed on January 26, 2023. This was almost four years after the accident. He was provided with a Spanish interpreter. He said he is a carpenter for Masterpiece and has been employed by them for about ten years. Vinny was the site safety person. On the day of plaintiff's accident, Vinny told him to have her clean the top floor apartment [Doc 138 Page 65]. After plaintiff told him about her accident, he called Vinny, who was not on site. He went to the top floor apartment the day after the accident to look at it, but he could not remember if the ladder was there [id. Page 69], Labor Law § 240 (1)

Labor Law section 240 (1) "requires certain contractors and property owners to provide adequate safety...