| Ramos v Baker |
| 2012 NY Slip Op 00767 [91 AD3d 930] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Marlon Ramos, Respondent, v Robert P. Baker et al.,Appellants. |
—[*1] Paul Carmona & Associates, PLLC, Brewster, N.Y. (Thomas M. DeSimone of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal (1), as limited bytheir brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), datedFebruary 17, 2011, as granted those branches of the plaintiff's motion which were for leave toamend the complaint to add causes of action alleging violations of Labor Law § 200 andregulations under the United States Occupational Safety and Health Act, and alleging negligententrustment and negligent failure to warn, and (2) from an order of the same court, also datedFebruary 17, 2011, which denied their cross motion for summary judgment dismissing thecomplaint or, in the alternative, for summary judgment dismissing the amended complaint.
Ordered that the first order dated February 17, 2011, is affirmed insofar as appealed from;and it is further,
Ordered that the second order dated February 17, 2011, is reversed, on the law, that branch ofthe defendants' cross motion which was for summary judgment dismissing the amendedcomplaint is granted, and that branch of the defendants' cross motion which was for summaryjudgment dismissing the complaint is denied as academic; and it is further,
Ordered that one bill of costs is awarded to the defendants.
In November 2005, the defendant Robert P. Baker, Jr., allegedly arranged with Rene Rivera,the owner of nonparty Woodland Tree Care, Inc. (hereinafter Woodland), to have two men cometo his property and split wood. On November 20, 2005, the plaintiff went to the defendants'property with a coworker and, while using a log splitter owned by either Woodland or Rivera,was injured when his coworker started the machine while the plaintiff's hand was still inside. Thedefendants were not present while the work was being done. Rivera had left the log splitter onthe defendants' property a week earlier, with Baker's permission.[*2]
The plaintiff filed for Workers' Compensation benefitsunder Woodland's policy and testified at a hearing that he was working for Woodland on the dayof the accident. In December 2006, a Workers' Compensation Law Judge found that the plaintiffwas an employee of Woodland and had no employment relationship with Baker, and it awardedthe plaintiff Workers' Compensation benefits under Woodland's policy. In December 2007, apanel of the Workers' Compensation Board affirmed the award. In September 2008, the plaintiffcommenced this action against the defendants alleging common-law negligence.
After discovery was completed, the plaintiff moved for leave to amend the complaintpursuant to CPLR 3025 (b) to assert causes of action alleging violations of Labor Law§§ 200, 241 (6), and regulations under the United States Occupational Safety andHealth Act (hereinafter OSHA), and alleging negligent entrustment and negligent failure to warn.The defendants cross-moved for summary judgment dismissing the complaint or, in the eventthat the court were to grant the plaintiff's motion for leave to amend the complaint, for summaryjudgment dismissing the amended complaint. The Supreme Court granted the plaintiff's motionfor leave to amend the complaint except insofar as the plaintiff sought to add a cause of actionalleging a violation of Labor Law § 241 (6). In a separate order, the Supreme Court deniedthe defendants' cross motion for summary judgment.
Applications for leave to amend pleadings should be freely granted except when the delay inseeking leave to amend would directly cause undue prejudice or surprise to the opposing party, orwhen the proposed amendment is palpably insufficient or patently devoid of merit (seeCPLR 3025 [b]; Lucido v Mancuso,49 AD3d 220, 222 [2008]). Here, the Supreme Court did not improvidently exercise itsdiscretion in granting those branches of the plaintiff's motion which were for leave to amend thecomplaint to add causes of action alleging violations of Labor Law § 200 and OSHAregulations, and alleging negligent entrustment and negligent failure to warn. The defendantswere not unduly prejudiced or surprised by the timing of the motion, and the causes of action thatthe Supreme Court permitted the plaintiff to add were neither palpably insufficient nor patentlydevoid of merit (see Lucido v Mancuso, 49 AD3d at 232). Nonetheless, the defendants,on their cross motion, were entitled to summary judgment dismissing the amended complaint.
As to the causes of action alleging negligent entrustment and negligent failure to warn, thedefendants established their prima facie entitlement to judgment as a matter of law by tenderingevidence that they lacked actual or constructive notice of the allegedly dangerous conditionpresented by alleged defects in the log-splitter that the plaintiff was using when he was injured(see Coffey v Flower City Carting & Excavating Co., 2 AD2d 191, 192 [1956],affd 2 NY2d 898 [1957]; cf.Mulhall v Hannafin, 45 AD3d 55, 58 [2007]). In opposition, the plaintiff failed to raise atriable issue of fact (see Guzzi v City ofNew York, 84 AD3d 871, 873 [2011]; Byrne v Collins, 77 AD3d 782, 784 [2010]; cf. Jablonski v Jakaitis, 85 AD3d969, 971 [2011]).
The defendants were also entitled to summary judgment dismissing the cause of actionalleging a violation of Labor Law § 200. As to this claim, the plaintiff is estopped fromasserting that he was employed by Baker, rather than by Woodland or Rivera, because thatposition would be inconsistent with the finding made at the Workers' Compensation proceedings(see Kilcer v Niagara Mohawk PowerCorp., 86 AD3d 682, 683-684 [2011]; Dupkanicova v James, 17 AD3d 627, 628 [2005]; Santiago vDedvukaj, 167 AD2d 529 [1990]; Calhoun v Big Apple Wrecking Corp., 162 AD2d574, 575 [1990]). To succeed on a claim under Labor Law § 200 against a property owner,a plaintiff injured by his or her use of defective equipment provided by his or her own employermust establish that the defendant had the authority to supervise or control the performance of thework (see Ortega v Puccia, 57AD3d 54, 62 [2008]; cf.Chowdhury v Rodriguez, 57 AD3d 121, 129-130 [2008]). Here, it is undisputed that thelog splitter that allegedly caused the plaintiff's injury was owned by Woodland or Rivera. Inaddition, inasmuch as the defendants established prima facie that they did not bear "theresponsibility for the manner in which the work [was] performed" (Ortega v Puccia, 57AD3d at 62), they established prima facie that they did not have the supervision or controlauthority necessary for the imposition of liability under Labor Law § 200 (id.). Theplaintiff failed to raise a triable issue of fact in opposition (see Pacheco v Halstead Communications, Ltd., 90 AD3d 877[2011]).[*3]
Inasmuch as the defendants were not the plaintiff'semployer, they were entitled to summary judgment dismissing the cause of action based onalleged violations of OSHA regulations (see Khan v Bangla Motor & Body Shop, Inc., 27 AD3d 526, 529[2006]; Riley v ISS Intl. Serv. Sys.,5 AD3d 754, 756 [2004]).
Accordingly, the Supreme Court should have granted that branch of the defendants' crossmotion which was for summary judgment dismissing the amended complaint. Balkin, J.P.,Leventhal, Belen and Roman, JJ., concur.