ADDITIONAL CASES Centre Street Systems, Plaintiff v. Tedy’s Construction Company, Defendants. Recitation, as required by CPLR §2219(a), of the papers considered in the review of Plaintiffs’ Motion: Papers Numbered Petition-Order to Show Cause/Notice of Motion Cross Motion/Affirmations/Affidavit/Exhibits Memorandum of Law Annexed 1-4 Opposition 5-10 Reply 11-13 Decision/Order Plaintiff, Tadeusz Piwowarski (“Plaintiff”), moves for summary judgment (Motion Sequence 31) on the issue of liability on his Labor Law §§240(1) and 241(6) claims against Centre Street Systems, Inc. (“Centre Street”), Joseph J. Lodovico (“Lodovico”), and On-Site Demolition & Trucking, Inc. (“On Site”). Defendants Lodovico, On Site, and Centre Street, filed separate motions and cross motions (Motion Sequences 30, 32, and 33, respectively), requesting summary judgment in their favor and dismissing the Plaintiff’s causes of action and any cross claims against them. Plaintiff commenced this action by the filing of a Summons and Verified Complaint, wherein he asserts causes of action against each of the above-named Defendants, based upon New York Labor Law Sections 200, 240(1), 241(a), 241(6) and Rule 23 of the New York State Industrial Code. Plaintiff alleges that he was at an elevation of approximately twenty (20) feet on July 26, 2008 when he fell from a makeshift scaffold, while working on the construction, alteration, repair and renovation of a single-family dwelling located at 41 87th Street, Brooklyn, New York. Plaintiff claims that the property is owned by Lodovico; On Site, was the general contractor; and Centre Street, also a contractor, hired him to work on the project. Plaintiff avers that he received directions and instructions from Lodovico and Centre Street, through its co-owners, Joe DiCanio, Sr. (“Joe, Sr.”) and Joe Dicanio, Jr. (“Joe, Jr.”). Plaintiff asserts that Joe, Jr. came to the job site on a daily basis to check on progress and to ensure that the work was being done correctly. Plaintiff states that he asked Joe, Jr. for a scaffold to reach the height necessary to install roof rafters but that Joe, Jr. refused to provide the scaffold. Plaintiff alleges that Joe, Jr. instructed and directed him and others workers on the specifics of how to build a makeshift scaffold from wood already existing at the work site. Plaintiff contends that Joe, Jr. told them to attach pieces of wood to the opposite walls of the building, to lay wood across the lumber, and to add a vertical piece of wood in the middle underneath the planks. Plaintiff states that the resulting scaffold consisted solely of two unsecured wood planks that extended across the second floor of the building (a width of 18 feet), which rested atop one piece of wood on each side approximately five to six feet above the flooring. Plaintiff alleges that the makeshift scaffold wobbled, shook, and gave way during use, which caused him to fall off the scaffold and out of the structure from the second floor. Plaintiff asserts that the fall was approximately twenty (20) feet to the outside ground. Plaintiff claims that there were no safety railings, harnesses, or lines to prevent a fall from occurring. Plaintiff alleges that he sustained serious and permanent injuries as a result of the fall, including multiple fractures and an epidural hematoma, which required an emergency surgical procedure. Plaintiff submitted deposition testimony from his brother, Slawomir Piwowarski (“Piwowarski”) and the affidavit of Herbert Heller, Jr., PE. in further support of his motion. Piwowarski, who also worked on the project, reiterates the Plaintiff’s account of how a makeshift scaffold versus an actual scaffold came to be used on the day of Plaintiff’s fall. Mr. Heller, a licensed professional engineer with expertise in the field of construction management, design, inspection and safety, opined within a reasonable degree of engineering certainty, that the work conditions, described by Plaintiff, constitute violations of New York Labor Law (“NYLL”) (Sections 240[1] and 241[6]) and the Industrial Code (NYCRR 23-5.1[c][2] and [j][1]). Mr. Heller explained that the Defendants’ failure to provide the Plaintiff with adequate and proper protection while working at an elevated height violated NYLL §§240(1) and 241(6). Mr. Heller further explained that NYCRR 23-5.1(c)(2), requires that all scaffolding be provided with adequate bracing to prevent movement and NYCRR 23-5.1(j)(1), requires safety railings along the open sides of the scaffolding. Centre Street, On Site and Lodovico each disclaim having direct or supervisory control over the work methods or the manner in which Plaintiff performed his tasks. Centre Street claims that it did not employ the Plaintiff and submitted a decision from the State of New York Workers’ Compensation Board (“the Board”) to support that assertion. Joe, Jr., on behalf of Centre Street, explains that the company is a union, drywall and ceiling contractor, which only hires union workers. Joe, Jr. states that Centre Street would never hire a non-union worker, such as Plaintiff. Joe, Jr. further explained that he knew of the Plaintiff, because the Plaintiff had previously completed work at the residences of certain other family members, including his father, Joe, Sr. Joe, Jr. asserts that he introduced the Plaintiff to his friend, Lodovico, who wanted work done at his residence. Joe, Jr. insists that he never discussed the project with Plaintiff or Lodovico, never reviewed the plans or drawings, and ordered no materials for the project. Joe, Jr. acknowledges that he allowed Lodovico to use Centre Street’s account to purchase materials for the project but only as a cost saving measure, so Lodovico would receive the same discounts extended to contractors. Joe, Jr. also acknowledges that he visited the job site but maintains that he never supervised, gave directions, or instructions to Plaintiff on specifics of being done. In fact, Joe, Jr. states that he knew nothing of the necessity for scaffolding and provided no instructions to build a makeshift scaffold to the Plaintiff, or any worker on site. Joe, Jr. explains that he visited the Plaintiff in the hospital after Lodovico told him about the fall and that months later, the Plaintiff came by the Centre Street office to inquire about filing a worker compensation claim under Centre Street’s policy. Joe, Jr. states that he declined Plaintiff’s request, because Plaintiff is not a Centre Street employee. Lodovico argues that he is exempt from liability, because he is the owner of a single-family dwelling, who provided no tools or directions, and did not control the work in question. Lodovico posits that hiring various persons and companies, such as the architect, contractor, or plumber, does not cause him to lose the homeowner’s exemption. Lodovico avers that he did not direct or control the project and never instructed the Plaintiff on how to accomplish any of the tasks associated with the project. Lodovico acknowledges that the Plaintiff’s brother, Piwowarski, testified during his deposition testimony that Lodovico delivered a message from Joe, Jr., telling the Plaintiff to “add a brace to the middle of the scaffold.” However, Lodovico claims that the message, even if the trier of fact believed Piwowarski, would be insufficient to overcome the homeowner exemption under the NYLL. Lodovico maintains that he had nothing to do with the scaffold being built, that he was not present when it was erected or when the Plaintiff fell. Lodovico alleges that the Plaintiff was in charge of his own work and neither the Plaintiff nor Piwowarski’s provided sufficient facts to make him a supervisor within contemplation of NYLL §§200, 240 and 241. Ganesh Suryavanshi (“Suryavanshi”), who is employed as an Estimator with On Site, states that On Site was hired solely to perform demolition services at the subject premises. Suryavanshi contends that no one from On Site was on the job site when the Plaintiff’s accident occurred and On Site had no tools, equipment, materials, scaffolding, ladders, or other materials at the premises. Suryavanshi states that the Plaintiff was not an employee of On Site and that no one from On Site directed, controlled, or supervised the Plaintiff’s work. Suryavanshi further states that there is no evidence that suggests On Site had anything to do with the assembly, direction, ownership or control of the scaffolding that was being used when the Plaintiff fell. In fact, Suryavanshi claims that On Site completed the demolition work within a two week period, during which time no other contractors were present. Suryavanshi asserts that On Site’s invoice to Lodovico (dated July 21, 2008) supports his account of the chain of events. Suryavanshi surmises that the Plaintiff is attempting to attach liability to On Site simply because On Site filed a work permit application with the DOB. Suryavanshi explains that even though On Site is identified as the general contractor on the work permit application, the permit was issued solely for the temporary fencing that was required for Lodovico’s project. However, Suryavanshi maintains that On Site was not the general contractor for purposes of coordinating and supervising the work of subcontractors. The court will examine the New York Labor Law and relevant case law to address the parties’ respective motions. Sections 240(1) and 241(6) of the Labor Law expressly exempt owners of one and two-family dwellings who contract for but do not direct or control the work being performed. The exemption is intended to shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law, such as the typical homeowner, who is no better situated than the hired worker, to furnish appropriate safety devices and to procure suitable insurance protection (Bartoo v. Buell, 87 NY2d 362, 367 [1996]). When these laws were amended in 1980, the Memorandum of the Law Revision Commission stated the following: “[i]t is unrealistic to expect the owner of a one or two-family dwelling to realize, understand and insure against the responsibility section 240 and 241 now places upon him [or her]…[S]uch owners ought to be secure in the reasonable assumption that if they have no direction or control over the work, they cannot be held strictly liable” (Dineen v. Rechichi, 70 AD3d 81, 84 [4th Dept 2009] citing Mem. of Law Rev. Commn., Bill Jacket, L. 1980, ch. 670). The Law Revision Commission further stated, “[t]his should be true even in the extreme case whether the injured worker is a self-employed, self-proclaimed ‘contractor’ without insurance” (Id.). In light of this remedial purpose, the Court of Appeals has cautioned against applying an overly rigid interpretation of the rule and thus, has applied a more flexible, “site and purpose” test to determine whether the exemption applies. The test involves an analysis of the site and the purpose of the work undertaken and whether the premises undergoing construction is residential or used for commercial activity (Bartoo, at 368; see also Cannon v. Putnam, 76 NY2d 644 [1990]; Lombardi v. Stout, 80 NY2d 290 [1992] and Ramirez v. Begum, 35 AD3d 578 [2006]). By contrast, the phrase “direct and control,” which implicates the homeowner, is construed strictly and refers to situations where the owner supervises the method and manner of the work (Severino v. Reiter, 1 AD3d 427 [2d Dept 2003] citing Kolakowski v. Feeney, 204 AD2d 693 [2d Dept 1994]). Labor Law §200(1), which codifies landowners’ and general contractors’ common-law duty to maintain a safe workplace, provides that recovery against the owner or general contractor cannot be had when the claim arises out of alleged defects or dangers from a subcontractor’s own methods and materials (Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 [1993]). There must also be a showing that the party to be charged exercised some supervisory control over the operation (Id.). Labor Law §240, also known as the scaffold law, provides that all contractors and property owners and their agents, engaged in, among other things, construction, demolition, repairing, or the altering of buildings or structures. shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, pulleys, braces, and other devices which must be constructed, placed and operated to give proper protection to a person so employed (Ortega v. Puccia, 578 AD3d 54, 58 [2d Dept 2008]). In order to invoke the protections afforded by the scaffold law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents, a plaintiff must demonstrate that he or she was both permitted or suffered to work on a building or structure and that he or she was hired by someone, be it owner, contractor, or their agent (Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573, 576-577 [1992]). The Court of Appeals has held that the Legislature’s intent in enacting Labor Law 240 “was to protect work[ers] engaged in their jobs (Alver v. Duartex, 80 AD2d 183, 183 [1981]). In other words, “absolute liability is imposed to protect the employee from [the] hazards of his [or her] work which he [or she] has no choice in avoiding if he [or she] is to earn a livelihood” (Koenig Patrick Constr. Corporation, 298 NY 313 [1948]). To recover under Labor Law §240(1), the Plaintiff would have to establish that the task he was required to undertake created an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against (Broggy v. Rockefeller Group, Inc., 8 NY3d 675, 681 [2d Dept 2007]). A plaintiff must also establish which specific statute was violated and show that the violation was a proximate cause of his or her injuries (Allan v. DHL Express, Inc., 99 AD3d 828, 833 [2d Dept 2012]). Section 241(6) of the Labor Law requires all areas in which construction, excavation or demolition work is being performed be constructed, shored, equipped, guarded, arranged, operated and conducted to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. In this case, the Plaintiff’s expert, Mr. Heller, stated that a makeshift scaffold was an improper device to use and did not provide proper protection when the Plaintiff was installing Lodovico’s roof rafters. Mr. Heller indicated that a pipe scaffold with a platform and safety rails should have been provided. He explained that Section 23-5.1(c)(2) requires a scaffold be provided with adequate horizontal and diagonal bracing to prevent any lateral movement, and Section 23-5.1(j)(1) requires safety railings. Mr. Heller opined within a reasonable degree of engineering certainty, that failure to provide such scaffold violated Sections 240(1) and 241(6) of the Labor Law and Sections 23.5.1(c)(2) and 23-5.1(j)(1) of the Industrial Code. The court credits Mr. Heller’s opinion that the makeshift scaffold was improper and did not have appropriate bracing or safety railings. The remaining issue is two fold: whether the Plaintiff, on his cause of action, or Defendants, Centre Street, Lodovico, and On Site, on their respective defenses, have met the burden of demonstrating the absence of material issues of fact sufficiently to warrant the court in directing judgment in their favor as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). It is well settled that the burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility but to merely determine whether such issues exists (Rebecchi v. Whitmore, 172 AD2d 600, 601 [2d Dept 1991]). Regarding Centre Street, Plaintiff testified at his deposition that Joe, Jr., who he referred to as “the boss,” previously hired him for projects and paid him in cash. Plaintiff averred that Joe, Jr. introduced him to Lodovico when Plaintiff was working at the Museum of Natural History. Plaintiff indicated that Joe Jr. pointed him and another worker out to Lodovico and indicated that they would be the ones doing the work at Lodovico’s residence. Plaintiff testified that he first saw architectural plans for the project at the Centre Street office. Plaintiff stated that Joe, Jr. showed him the plans to ensure Plaintiff was capable of doing the work. The On Site estimator, Suryavanshi, explained that On-Site is located next door to the Centre Street office, and he testified during his deposition that he saw Plaintiff at the Centre Street office, and on another occasion, working on the roof of Centre Street’s building. Plaintiff stated that he first arrived at Lodovico’s residence with the other owner of Centre Street (Joe, Sr.). Plaintiff averred that it was Joe Sr. who explained that the first step for the project was to dig a hole and lay footing. Plaintiff indicated that Joe, Jr. told him how to start installation of the roof and regularly checked on the Plaintiff’s work product to ensure the work was done properly. Plaintiff further testified that Joe Jr. would direct him and the other workers to make changes, such as add floor joists and cross braces to strengthen the floor underlayment. The Plaintiff claims that he told Joe, Jr. that a scaffold was needed for the build out of the roof but that Joe, Jr. refused and told Plaintiff how to build a make shift scaffold instead. Despite Plaintiff’s assertions regarding Centre Street’s involvement, there is evidence that he may have worked directly for Lodovico. Lodovico claims to have negotiated to pay the Plaintiff $40,000 for the job. Lodovico indicated that he tendered cash installment payments directly to the Plaintiff before the accident occurred. In fact, there is evidence that the Plaintiff may have bought his own crew of labors with him to work on the project. Centre Street and Lodovico claims that the Plaintiff was a self-employed, self-proclaimed contractor. However, there was insufficient documentary evidence, and testimony adduced during depositions, to clearly show that the Plaintiff was an independent contractor with the requisite skill set to plan, oversee, and execute the scale of project that was underway at Lodovico’s residence. Additionally, there is no evidence that the Plaintiff was a licensed and bonded tradesman with his own insurance, tools and supplies. Contrary to Centre Street’s contention, the doctrine of collateral estoppel does not apply, because the issue addressed in the Plaintiff’s workers’ compensation hearing is not identical to the issue presented in this case (Schwartz v. Public Adm’r of Bronx County, 24 NY2d 65 [1969]). The framed issue at the Plaintiff’s workers’ compensation hearing was whether an employer/employee relationship existed between Centre Street and the Plaintiff when the accident occurred on July 26, 2008. In addressing the issue, the Board made credibility assessments and examined, among other things, Centre Street’s tax returns, payroll and list of commercial jobs. The Board ultimately concluded that the Plaintiff was not a Centre Street employee within contemplation of the Workers’ Compensation Law. Notwithstanding that fact, it is well settled that there are pronounced and fundamental differences between the definitions of “employer,” “employee” and “employment,” as provided in Section 201 (4) through (6) of the Workers’ Compensation Law and the definitions of “employee,” “employer” and “employed” as provided in Section 2 (5) through (7) of the Workers’ Compensation Law (Baker v. Muraski, 61 AD3d 1373 [4th Dept 2009] citing Matter of Bartenders Unlimited [Commissioner of Labor, 289 AD2d 785, 786-787 [3d Dept 2001], lv denied 98 NY2d 601[2002]). Additionally, the Legislature enacted these two laws for different reasons. The Workers’ Compensation Law was enacted for socioeconomic remediation reasons as a means of protecting workers and their dependents from want in case of injury on the job (Rodriguez v. Burn-Brite Metals Col., Inc., 1 NY3d 553, 555-556 [2003] quoting Matter of Hohannesen v. New York City Dept. of Hous. Preserv. & Dev., 84 NY2d 129 [1994]). In that context, the factors to be considered in determining whether an employer/employee relationship exists within the meaning of the Workers’ Compensation Law are: (1) the right to control the claimant’s work; (2) the right to discharge the claimant; (3) the method of payment; and (4) the furnishing of equipment and the relative nature of the work (Rastaetter v. Charles S. Wilson Memorial Hospital, 80 AD2d 608 [2d Dept 1981]). Contrastingly, the principal objective and purpose of sections 200, 240, 241, and 241 of the Labor Law, is to provide for the health and safety of employees (Mordkofsky v. V.C.V. Dev. Corp., 76 NY2d 573, 577 [1990]). In order to invoke the protections afforded by the Labor Law and to come within the special class for whose benefit liability is imposed upon contractors, owners and their agents, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent (Mordkofsky, 76 NY2d at 576-577 [1990] quoting Whelen v. Warwick Val. Civic & Social Club, 47 NY2d 970 [1979]). In light of these differences, the court finds Centre Street’s arguments unavailing and thus, declines to grant collateral estoppel effect to the Board’s decision for purposes of absolving Centre Street of any liability at this stage. There are also factual impediments requiring denial of Lodovico’s application for summary judgment. It is undisputed that the subject property is Lodovico’s home, which is a single-family dwelling. The purpose of the project was to add an extension to the house, and there is no evidence that any portion of the house was being used, or projected to be used, for commercial purposes. However, Lodovico can not avail himself of the protections afforded to owners of single family dwellings at this juncture, because there are unresolved issues concerning the extent to which Lodovico directed and controlled, or supervised the method and manner of the Plaintiff’s work, ordered changes in the specifications of the work being done, and reviewed the progress and details of the job with the Plaintiff and/or Centre Street (see Devodier v. Haas, 173 AD2d 437 [2d Dept 1991]). There is evidence that Lodovico sourced the materials needed for the project, by ordering products through Centre Street’s account. Additionally, there are allegations that Lodovico instructed the Plaintiff on how to accomplish certain tasks, such as cutting joists and the distance that should be between each joist. There are also allegations that Lodovico told the Plaintiff and other workers to reinforce the floors, to extend the footing, and, in general, what he wanted to be done and how to do it. In fact, the Plaintiff’s brother, Piwowarski, referred to Lodovico as “Mr. Construction” during his deposition testimony, because of the excellent instructions that Lodovico allegedly provided to workers on a consistent basis. Finally, there is question of fact regarding the extent to which Lodovico and Centre Street worked collaboratively on the project and if so, whether any such collaboration is sufficient to implicate Lodovico. There is evidence that the Plaintiff and other workers would have stopped working if either Lodovico or Centre Street told them to stop. Lodovico was not always present on site. However, it appears that Centre Street may have functioned as Lodovico’s eyes, ears, and voice by coordinating the project and specifically, the building of a makeshift scaffold to install roof rafters, on Lodovico’s behalf (see Walls v. Turner Const. Co., 4 NY3d 861, 864 [2005]). There is also a question as to whether Centre Street presented as general supervisor, by checking the progress of Plaintiff’s work and reporting to Lodovico (compare Gonzalez v. Magestic Fine Custom Home, 115 AD3d 796 [2d Dept 2014], with Borbeck v. Hercules Const. Corp., 48 AD3d 498 [2d Dept 2008]). Thus, it is unclear whether Lodovico delegated the construction work in which Plaintiff was engaged at the time of his injury (Parsolano v. Nassau County, 93 AD2d 815 [2d Dept 1983] see also, Russin v. Louis N. Picciano & Son, 54 NY2d 311, 318 [1981]). These material issues of fact are a bar to Lodovico’s application for summary judgment. Regarding On Site, its employee, Suryavanshi, described the demolition at Lodovico’s residence as a small job. He confirmed that the standard procedure of executing a contract was not followed, because Lodovico was a friend of the Centre Street owners. The box for “General Contractor” is marked with an “x” in On Site’s application with the DOB. In the “Type of Permit” section the boxes reserved for “Construction Equipment” and “Fence” are also marked with an “x.” However, Suryavanshi testified at his deposition that those indicators did not accurately reflect On Site’s role on the Lodovico project. When queried about the issue concerning Plaintiff, Suryavanshi explained that On Site had completed its demolition task and had no on going presence at the job site when the Plaintiff’s accident occurred. Suryavanshi stated that On Site was not present, had no equipment on the premises, and no authority to enforce safety standards on the day of Plaintiff’s fall. The invoice that On Site annexed to its motion papers tends to support Suryavanshi’s assertions. It contains a description of the services provided as “demolition” and reflects a service fee of $9,000, with a notation that the fee was paid-in-full on July 21, 2008. Additionally, there was no deposition testimony from the Plaintiff, or any party, that implicates On Site as the entity that hired, employed, directed, supervised, or controlled the Plaintiff’s work. Plaintiff stated that the demolition portion of the project was complete when he arrived. Plaintiff further stated that the walls were taken down, the sheetrock was stripped, and the exterior walls and stucco were removed. The fact that On Site was listed on the work permit application as the general contractor, without more, is insufficient to raise a triable issue of fact as to whether, for purposes of the Labor Law, On Site was the contractor at Lovodico’s residence (Huerta, 56 AD3d 63 [2d Dept 2008] citing Aversano v. JWH Contr., LLC, 37 AD3d 745, 746 [2d Dept 2007]). Thus, the court finds that On Site has established prima facie entitlement to summary judgment as a matter of law on the Plaintiff’s Labor Law §§200, 240(1) and 241(6), and common-law negligence cause of action (Huerta v. Three Star Constr. Co., Inc., 56 AD3d 613 [2d Dept 2008]). Plaintiff and remaining Defendants have failed to raise a triable issue of fact. Accordingly, it is hereby ORDERED that, the Plaintiff’s motion for summary judgment is denied as against Defendants Joseph Lodovico, Centre Street Systems, Inc., and On-Site Demolition & Trucking, Inc., and it is further ORDERED that, Defendant On Site Demolition & Trucking, Inc.’s cross motion is granted in all respects. This matter is dismissed as against On Site Demolition & Trucking, Inc., and it is further ORDERED that, Defendants Joseph J. Lodovico and Centre Street Systems, Inc.’s respective motions for summary judgment are denied in their entirety. This constitutes the Decision and Order of the court.
