People v. Ultimate Homes, Inc.People v. Ultimate Homes, Inc.
Burke, Scolamiero, Mortati & Hurd, LLP, Albany, NY (Lia B. Mitchell and Peter Balouskas of counsel), for appellant.
Melley Platania, PLLC, Rhinebeck, NY (Steven M. Melley of counsel), for plaintiffs-respondents.
Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, NY (Donna L. Cook of counsel), for defendant-respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant Ultimate Homes, Inc., appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated December 8, 2015. The order, insofar as appealed from, (1) denied the motion of the defendant Ultimate Homеs, Inc., for summary judgment dismissing the causes of action alleging a violation of
ORDERED that the
ORDERED that on the Court‘s own motion, the notice of appeal from so much of the order as, in effect, sua sponte, directed the dismissal of the cross claims of the defendant Ultimate Homes, Inc., against the defendant J.G. Fortin Drywall, Inc., is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof which, in effect, sua sponte, directed dismissal of the cross claims of the defendant Ultimate Homes, Inc., against the defendant J.G. Fortin Drywall, Inc., (2) by deleting the provision thereof which denied those branches of the motion of the defendant Ultimate Homes, Inc., which were for summary judgment dismissing the causes of action alleging a violation of
The plaintiff Guy Poulin (hereinafter the plaintiff), a drywall installer, alleged that he was injured at a residential construction site when hе fell through the opening of an unfinished stairwell into the basement of the premises. The plaintiff, and his wife suing derivatively, commenced this action asserting causes of action pursuant to
After discovery, the Nielsons moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Ultimate moved for summary judgment dismissing the plaintiffs’
The Supreme Court, inter alia, granted that branch of the Nielsons’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, denied Ultimate‘s motion for summary judgment dismissing the causes of action pursuant to
We agree with the Supreme Court‘s determination to grant that branch of the plaintiffs’ cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of
However, the Supreme Court should not have denied those branches of Ultimate‘s motion which were for summary judgment dismissing the causes of action pursuant to
Here, Richard Miller, Ultimate‘s lead carpenter, testified at his deposition that a railing previously placed around the stairwell opening was specifically removed so that the drywall installers could access the area in order to do their work. Jean-Guy Fortin, Fortin‘s principal, testified at his deposition that
Based upon the foregoing evidence, Ultimate established, prima facie, that the accident arose from the method and manner in which the plaintiff and Jean-Guy Fortin covered the stairwell opening (see Gillis v Brown, 133 AD3d 1374, 1375-1376 [accident arose from “defects or dangers in the methods or materials of the work” where the plaintiff was injured “while working on an elevated scaffold at a construction site, his right foot fell through an opening created by missing planks“]; Klimowicz v Powell Cove Assoc., LLC, 111 AD3d 605, 606, 608 [“plaintiff, who had climbed onto the wall header near the eave of the barn, put the weight of his legs on plywood that had been placed in the eave by defendants to block wind and precipitation, and the plywood shifted and fell, causing plaintiff to fall to the ground and sustain injuries. . . . [D]efendants’ placement of plywood along the eaves of the barn as a block to the elements was not a ‘defective condition;’ instead, the alleged defect arose from plaintiff‘s methods or manner of performing the work“]; Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 447 [accident arose from means and methods of work where “[p]laintiff was walking towards a window through which insulation was being delivеred, when he stepped on an eight-by-four-foot section of three-quarter-inch-thick plywood, which unexpectedly ‘flipped up.’ The sheet of plywood had been covering an opening in the floor.“]; Riley v Stickl Constr. Co., 242 AD2d 936, 936-937 [“McNamee employees completed
Contrary to our dissenting colleague‘s argument that our analysis overlooks the plaintiff‘s allegation that the accident was caused by a dangerous or defective premises condition, we have considered the plaintiff‘s allegation in that regard and conclude that Ultimate established, prima facie, that the accident did not arise from a dangerous or defective premises сondition but from the method and manner of the work. The dissent relies upon Reyes v Arco Wentworth Mgt. Corp. (83 AD3d 47, 52), in which this Court held: “[W]hen an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of
Further, Ultimate established that it did not exercise supervision or control over the performance of the work giving rise to the plaintiff‘s injury (see Suconota v Knickerbocker Props., LLC, 116 AD3d at 508-509; Ortega v Puccia, 57 AD3d at 61). Ultimate, which gave no instructions to Jean-Guy Fortin or the plaintiff as to how to do their work, had, at most, general supervisory authority over the plaintiff‘s work, which is insufficient to form a basis for the imposition of liability (see Suconota v Knickerbocker Props., LLC, 116 AD3d at 508-509). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted those branches of Ultimate‘s motion which were for summary judgment dismissing the causes of action alleging a violation of
The Supreme Court should not have, in effect, sua sponte, directed dismissal of Ultimate‘s cross claims against Fortin for common-law indemnification and contribution, which relief Fortin did not request in its motion papers (see USAA Fed. Sav. Bank v Calvin, 145 AD3d 704, 706). Moreover, the Supreme Court should have granted that branch of Ultimate‘s
Ultimate met its prima facie burden for summary judgment on its cross claim for common-law indemnification against Fortin by establishing that it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part and that Fortin exercised actual supervision and control over the work giving rise to the injury (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 377-378; Felker v Corning, Inc., 90 NY2d 219, 226; Bermejo v New York City Health & Hosps. Corp., 119 AD3d 500, 504). In opposition, Fortin failed to raise a triable issue of fact.
SCHEINKMAN, P.J., CONNOLLY and CHRISTOPHER, JJ., concur.
DUFFY, J., concurs in part and dissents in part, and votes to dismiss the appeal by the defendant Ultimate Homes, Inc., from so much of the order as granted the converted motion of the defendant J.G. Fortin Drywall, Inc., for summary judgment dismissing the complaint insofar as asserted against it, as the defendant Ultimate Homes, Inc., is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144), to modify the order, on the law, by deleting the provision thereof, in effect, sua sponte, directing the dismissal of the cross claims of the defendant Ultimate Homes, Inc., against the defendant J.G. Fortin Drywall, Inc., for common-law indemnification and contribution, and substituting therefor а provision converting those cross claims to third-party causes of action, and, as so modified, to affirm the order insofar as
I agree with my colleagues that the appeal by the defendant Ultimate Homes, Inc. (hereinafter Ultimate), from so much of the order as granted the converted motion of the defendant J.G. Fortin Drywall, Inc. (hereinafter Fortin), for summary judgment dismissing the complaint insofar as asserted against Fortin must be dismissed, as Ultimate is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d at 157). I also agree that the Supreme Court properly granted that branch of the plaintiffs’ cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of
The plaintiff Guy Poulin (hereinafter the plaintiff), and his wife suing derivatively (hereinafter together the plaintiffs), commenced this action seeking damages for injuries that the plaintiff contends he sustained when he began installing drywall in a single-family home that was under construction. The general contractor for the construction, Ultimate, had been at the site for approximately two months. At his deposition, the plaintiff testified that he had not been to the location prior to the day of his accident. The plaintiff also testified that, on the day at issue, he and his boss, who was the owner of Fortin, observed an unguarded stairwell opening when they went to sheetrock the ceiling and the walls above the hole. The plaintiff further testified that he and his boss placed a sheet of plywood on a plank on the top of the opening but it was insufficient to cover the hole, and, since there was no other plywood or plank available, they decided they would work instead in another room. The plaintiff thereafter fell and landed in the basement of the premises. He testified that he did not know what caused him to fall through the hole and could not recall why he fell or what he was doing immediately before his fall. At the time of the accident, even though a workman from Ultimate was framing
The plaintiffs asserted causes of action against, among others, Ultimate and Fortin under
At his deposition, the plaintiff also testified that, under similar circumstances, a contractor generally would have covered the stairwell opening to enаble them to drywall the ceiling above the hole. The owner of the premises testified at his deposition that he had never seen the stairwell opening uncovered. The owner further testified that the stairwell opening was always covered completely with approximately two planks at the end of the day and that he believed that the planks were placed by Ultimate and were being used to protect persons from falling through the opening into the basement. The owner of Ultimate admitted at his deposition that there were no warning signs, safety tape, cones, or scaffolding placed around the stairwell opening. He also testified that he did not recall providing any temporary covering prior to the accident. The Ultimate worker who was present at the work site at the time of the plaintiff‘s accident testified at his deposition that Ultimate had not covered the opening but had placed wooden railings around the perimeter of the stairwell opening as a safety precaution to prevent anyone from walking into the opening. He also testified that he did not recall if the railings were in place the day of the incident at issue.
Ultimate moved for summary judgment dismissing the causes of action alleging a violation of
I agree with the majority that the Supreme Court properly granted that brаnch of the plaintiffs’ cross motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of
However, I disagree with the majority‘s determination to grant that branch of Ultimate‘s motion which was for summary judgment dismissing the causes of action alleging a violation of
The majority rests its grant of summary judgment to Ultimate dismissing the
It is axiomatic that a defendant moving for summary judgment with respect to causes of action alleging a violation of
To the extent that the majority attempts to distinguish Reyes v Arco Wentworth Mgt. Corp. (83 AD3d at 50-51) to suggest that Ultimate‘s burden of proof on its motion for summary judgment on these causes of action need only address the means and method theory of liability, this Court‘s long-standing precedent (see e.g. Pineda v Elias, 125 AD3d 738, 738-739; Garcia v Market Assoc., 123 AD3d at 665; DiMaggio v Cataletto, 117 AD3d 984, 986), as well as that of its
The cases cited by the majority—Paez v Shah (78 AD3d 673, 674-675); Harper v Holland Addison, LLC (75 AD3d 495, 496); and Navarro v City of New York (75 AD3d 590, 591-592)—in support of its conclusion that the accident did not arise from a dangerous or defective premises condition but from the means and methods of the work, are distinguishable from the facts in this case. In Paez v Shah (78 AD3d at 674), the plaintiff was injured when he was operating an electric handsaw after the general contractor had removed the safety guard from the handsaw at the work site. This Court reversed the Supreme Court order denying summary judgment to the defendant owner where the owner proffered the deposition testimony of the owner, the plaintiff, and the contractor demonstrating that the owner neither directed nor controlled the plaintiff‘s work and had no notice of the unsafe condition of the handsaw that had been provided to the plaintiff by the contractor. In contrast, here, Ultimate is the general contractor, not the owner, and its employee testified at his deposition that Ultimate was well aware of the open stairwell and had previously placed railings around it.
In Harper v Holland Addison, LLC (75 AD3d 495), this Court affirmed the dismissal of causes of action alleging a violation of
In Navarro v City of New York (75 AD3d at 592), this Court
Here, since the plaintiffs’ theory of liability includes their allegation that Ultimate was negligent as a result of a dangerous condition on the premises—the unguarded hole—Ultimate is not entitled to summary judgment as to this cause of action unless it has demonstrated, prima facie, either that the plaintiff‘s accident arose solely from the manner in whiсh work was performed under
Indeed, a view of the evidence in the light most favorable to the nonmovant, here, the plaintiffs, requires denial of Ultimate‘s motion for summary judgment on these causes of action (see Stukas v Streiter, 83 AD3d 18, 22; Pearson v Dix McBride, LLC, 63 AD3d 895, 895). In reaching its conclusion, the
The majority‘s footnoted contention that, even if the accident arose from a dangerous or defective premises condition, Ultimate is still еntitled to summary judgment on these
The majority‘s determination that any dangerous condition that may have existed was somehow created by the plaintiff and Jean-Guy Fortin because the plaintiff and Fortin were unable to completely cover the unguarded hole created by Ultimate turns premises liability on its head. ”
Although there are no cases in this Court with facts comparable to the facts at issue here, in McKay v Weeden (148 AD3d at 1718-1719), the Fourth Department affirmed the denial of summary judgment in a case squarely on all fours with the facts alleged here. There, the subcontractor plaintiff asserted causes of action alleging, inter alia, Labor Law violations and common-law negligence against the general contractor in that case, seeking damages for injuries he alleged he sustained when, while hanging drywall, he stepped into an unguarded stаirwell opening on the first floor and fell down onto the basement floor (see id. at 1719). There, the railing around the unguarded stairwell, as well as a plywood cover, had previously been removed by an unknown person (see id. at 1719-1721). The Fourth Department affirmed the Supreme Court‘s denial of the general contractor‘s motion for summary judgment, determining that, even if the general contractor established that it did not supervise or control the plaintiff‘s work, since the plaintiffs also alleged that the accident occurred due to a dangerous condition on the premises, the general contractor was required, but failed, to further “establish as a matter of law that [it] did not exercise any supervisory control over the general conditions of the premises or that [it] neither created nor had actual or constructive notice of the dangerous
Here, Ultimate also was required to establish that it never had control over the work site or that it neither created nor had actual or constructive notice of the allegedly dangerous condition on its premises (see McKay v Weeden, 148 AD3d at 1721). Since Ultimate has failed to establish its prima facie entitlement to judgment as a matter of law as to these issues, and triable issues of fact exist, summary judgment as to these causes of action alleging common-law negligence and violation of
Ultimate also was not еntitled to summary judgment on its cross claims alleging common-law indemnification and contribution against Fortin, as it failed to eliminate triable issues of fact as to the cause of the accident, whether Ultimate was negligent in causing the accident, and the relative culpability, if any, of Fortin (see Chilinski v LMJ Contr., Inc., 137 AD3d at 1188; Ginter v Flushing Terrace, LLC, 121 AD3d 840, 844-845). The Supreme Court also should not have, in effect, sua sponte, dismissed Ultimate‘s cross claims against Fortin, alleging common-law indemnification and contribution pursuant to
Although there is no longer a direct action pending against Fortin, Ultimate‘s cross claims against it alleging common-law indemnification and contribution may be maintained in a third-party action (see Soodoo v LC, LLC, 116 AD3d 1033, 1034; Jones v New York City Hous. Auth., 293 AD2d 371, 372). Accordingly, I would also deny summary judgment to Fortin on those cross claims, and reinstate such claims as third-party causes of action by Ultimate against Fortin.
ENTER:
Aprilanne Agostino
Clerk of the Court