| Lazri v Kingston City Consol. School Dist. |
| 2012 NY Slip Op 04266 [95 AD3d 1642] |
| May 31, 2012 |
| Appellate Division, Third Department |
| Albert Lazri, Appellant, v Kingston City Consolidated SchoolDistrict, Respondent. |
—[*1] McGaw, Alventosa & Zajac, Jericho (Andrew Zajac of counsel) and Phelan, Phelan &Danek, L.L.P., Albany, for respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Zwack, J.), entered November 21,2011 in Ulster County, which, among other things, held plaintiff's motion for partial summaryjudgment in abeyance pending further discovery.
Plaintiff was employed by Marfi Construction Corporation, which was hired to perform workon the roof of a school building owned by defendant in the Town of Hurley, Ulster County. OnSunday, November 1, 2009, plaintiff was installing a drip edge on the roof of the building whenhe fell to the ground and was injured. As a result, plaintiff commenced two actions, one in UlsterCounty against defendant and another in Kings County against BBL Construction Services, LLC,the construction manager on the project, alleging that defendant and BBL were negligent andviolated provisions of the Labor Law in connection with this accident.
Plaintiff subsequently moved for summary judgment, claiming that defendant was, as amatter of law, legally responsible for the injuries he sustained in the fall from the roof. In supportof his motion, plaintiff submitted his own affidavit and that of a coworker, detailing thecircumstances surrounding the accident and indicating that safety devices had not been providedwhen they worked on the roof at the job site. In response, defendant argued that plaintiff's [*2]motion should be denied because a question of fact existed as towhether the job site was closed at the time of the accident. In the alternative, defendant arguedthat prior to plaintiff making this motion, the parties did not engage in any discovery, and thismotion for summary judgment was, at best, premature. In support of their position, defendantsubmitted an affidavit from Robin Scrodanus, the project manager for BBL, claiming that underBBL's contract with defendant, BBL was responsible for scheduling work that was to beperformed on the project and Marfi's employees were to work on Monday through Friday, when aBBL representative was present on the job site. She further affirmed that Marfi needed priorauthorization from BBL to work on weekends and, on the date of plaintiff's accident, which wasa Sunday, no authorization for access to the job site had been sought by Marfi or given and norepresentative of defendant or BBL was present. Supreme Court found that since discovery hadnot been conducted, plaintiff's motion for summary judgment was premature and held it inabeyance. Plaintiff now appeals.
"To receive the benefits of Labor Law §§ 240 and 241, a worker must show 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' " (Haque v Crown Hgts. NRP Assoc., LP,33 AD3d 864 [2006], quoting Whelen v Warwick Val. Civic & Social Club, 47NY2d 970, 971 [1979]; see Abbatiello vLancaster Studio Assoc., 3 NY3d 46, 51 [2004]; Singh v City of New York, 68 AD3d 1095, 1096 [2009]). Here,plaintiff stated that on the date of his accident, he had been asked by his employer to work on thesite with at least one other Marfi employee. He stated, and his coworker confirmed, that despiterepeated requests, they had not been provided any safety devices while on the job site and weretold that none were available.
In opposition to plaintiff's motion, defendant offered the Scrodanus affidavit, which detailedthe provisions in the parties' contract that designated BBL as responsible for preparing theproject's work schedule. She stated that "Marfi . . . and its employees were onlysupposed to be working at the site Monday through Friday when the owner's agent, BBL, waspresent and when the Field Superintendent for BBL was present as well." According toScrodanus, Marfi was not permitted to work on the project during the weekends when the worksite was closed without giving 24 hours notice to defendant or BBL, and obtaining their approval.She further stated that Marfi had not notified BBL or defendant that they intended to work theSunday that plaintiff's accident occurred and had not obtained the requisite approval pursuant tothe parties' contract. Scrodanus reiterated that no representative of defendant or BBL was presentat the site when plaintiff fell from the roof and the job site, pursuant to the terms of the contract,was "closed." This affidavit and the relevant provisions of the parties' contract create a questionof fact as to whether the job site was closed at the time of plaintiff's accident. As a result,plaintiff's motion for summary judgment should not have been held in abeyance, it should havebeen denied (see Haque v Crown Hgts. NRP Assoc., LP, 33 AD3d at 864; compare Singh v City of New York, 68AD3d 1095 at 1096 [2009]).
Lahtinen, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as held plaintiff's motion forpartial summary judgment in abeyance; said motion denied; and, as so modified, affirmed.