| Duran v Kijak Family Partners, L.P. |
| 2009 NY Slip Op 05286 [63 AD3d 992] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Jose Hilario Duran, Appellant, v Kijak Family Partners,L.P., et al., Respondents. |
—[*1] Whiteman & Frum, Elmsford, N.Y. (Donald L. Frum and Paul Zilberfein of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Colabella, J.), entered July 14, 2008, which granted thedefendants' cross motion for summary judgment dismissing the complaint and, in effect, deniedthe plaintiff's motion for summary judgment on the issue of liability on so much of the complaintas alleged a violation of Labor Law § 240 (1).
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendants' cross motion which were for summary judgment dismissing thecomplaint insofar as asserted against the defendants Kijak Family Partners, L.P., and JosephKijak, and substituting therefor provisions denying those branches of the defendants' crossmotion; as so modified, the order is affirmed, without costs or disbursements.
On July 24, 2006, the plaintiff was working on the roof of a greenhouse when he allegedlyfell through the roof, sustaining injuries. He received workers' compensation benefits as a resultof his accident. The plaintiff commenced this action against defendant Kijak Family Partners,L.P. (hereinafter KFP), which owned the premises where the accident occurred, and theindividual defendants, who were the general partners thereof. The defendants Patricia KijakAnderson, Barbara Kijak Miller, and Joseph Kijak, Jr., also were shareholders in Green ValleyLandscape Design, Inc. (hereinafter Green Valley), the plaintiff's employer. The plaintiff movedfor summary judgment on the issue of liability on so much of the complaint as alleged a violationof Labor Law § 240 (1). The defendants cross-moved for summary judgment dismissingthe complaint.
The evidence did not establish that the defendant Joseph Kijak, who was a general partner ofKFP, also was a shareholder, officer, or employee of Green Valley. Inasmuch as KFP failed toestablish that each of its partners also was a shareholder, officer, or employee of Green Valley,that branch of the defendants' cross motion which was for summary judgment dismissing thecomplaint insofar as asserted against KFP, based on the exclusivity provisions of the Workers'Compensation Law, should have been denied (see Blumberg v Ten Wash. Realty Assoc.,262 AD2d 592, 592-593 [1999]; Lindner v Kew Realty Co., 113 AD2d 36, 45 [1985];see also McFarlane v Chera, 211 AD2d 764, 765 [1995]; cf. Kupke v Mullane,215 AD2d 531 [1995]). Similarly, because Joseph Kijak was not a shareholder, officer, oremployee of Green Valley, there is no basis for a determination that the action against himindividually should be barred under the exclusivity provisions of the Workers' CompensationLaw. As to the defendants Patricia Kijak Anderson, Barbara Kijak Miller, and Joseph Kijak, Jr.,in light of their status as shareholders in Green Valley, the plaintiff's action insofar as assertedagainst them is barred by the exclusivity provisions of the Workers' Compensation Law (cf.Lovario v Vuotto, 266 AD2d 191 [1999]; McFarlane v Chera, 211 AD2d at 764;Lindner v Kew Realty Co., 113 AD2d at 46).
The Supreme Court properly, in effect, denied the plaintiff's motion for summary judgmenton the issue of liability in connection with so much of the complaint as alleged a violation ofLabor Law § 240 (1). The mere fact that the plaintiff fell is insufficient to establish, as amatter of law, that the plywood planks upon which he was directed to stand when performing hiswork and on which he was to move when on the roof did not provide proper protection (seeReborchick v Broadway Mall Props., Inc., 10 AD3d 713, 713-714 [2004]; Nelson vCiba-Geigy, 268 AD2d 570, 571-572 [2000]). "Whether the device provided properprotection is a question of fact, except when the device collapses, moves, falls, or otherwise failsto support the plaintiff and his materials" (Nelson v Ciba-Geigy, 268 AD2d at 572).Also, "[w]here the inconsistent versions of how the accident occurred raise a question of fact asto the credibility of the injured plaintiff, they [are] insufficient to prove, as a matter of law, thatthe defendants' failure to provide the injured plaintiff with proper protection proximately causedhis injuries" (Reborchick v Broadway Mall Props., Inc., 10 AD3d at 714). Here, whilethe plaintiff testified at his deposition that he fell when a board or plank upon which he wasstanding broke, the individual acting as his supervisor testified that the plaintiff fell in an areabetween two planks of wood and that, after the accident, he did not observe any wood missing orbroken, but rather, only "saw the hole in the roof, nothing fell down, it was just the fiberglass"which was between the planks of wood. Thus, the Supreme Court properly, in effect, denied theplaintiff's motion.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Dillon, J.P., Angiolillo, Dickerson and Eng, JJ., concur.