| Perla v Daytree Custom Bldrs., Inc. |
| 2014 NY Slip Op 05313 [119 AD3d 758] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Milton Perla et al., Appellants, v DaytreeCustom Builders, Inc., Respondent. |
Lurie, Ilchert, MacDonnell & Ryan, LLP, New York, N.Y. (Dennis A. Breen ofcounsel), for appellants.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order by the Supreme Court, Suffolk County(Whelan, J.), dated January 8, 2013, as, in effect, denied their motion for summaryjudgment on the issue of liability on the cause of action alleging a violation of LaborLaw § 240 (1) and pursuant to CPLR 3126 to strike the defendant's answerfor failure to provide discovery or, in the alternative, its first affirmative defense based onthe exclusivity provision of the Workers' Compensation Law.
Ordered that the order is affirmed insofar as appealed from, with costs.
While in the course of his employment, the injured plaintiff fell off of the roof of ahouse and, thereafter, he received Workers' Compensation benefits from his employerbased on this incident. Subsequently, he, and his wife suing derivatively, commenced thisaction against the defendant to recover damages, inter alia, for a violation of Labor Law§ 240 (1). The plaintiffs moved for summary judgment on the issue ofliability on the cause of action alleging a violation of Labor Law § 240 (1)and pursuant to CPLR 3126 to strike the defendant's answer for failure to providediscovery or, in the alternative, to strike its first affirmative defense based on theexclusivity provision of the Workers' Compensation Law. The Supreme Court, inter alia,in effect, denied that branch of the plaintiffs' motion which was for summary judgmenton the issue of liability with respect to the cause of action alleging a violation of LaborLaw § 240 (1), concluding that a triable issue of fact existed as to whetherthe defendant was an alter ego of the injured plaintiff's employer, and denied that branchof the plaintiffs' motion which was pursuant to CPLR 3126 on the ground that theplaintiffs failed to establish that the defendant's failure to comply with discovery waswillful or contumacious.
"Labor Law § 240 (1) imposes upon owners and general contractors,and their agents, a nondelegable duty to provide safety devices necessary to protectworkers from risks inherent in elevated work sites" (McCarthy v Turner Constr., Inc., 17 NY3d 369, 374[2011]). To prevail on a Labor Law § 240 (1) cause of action, a plaintiffmust demonstrate that the statute was violated and that the violation was a proximatecause of his or her injuries (seeBlake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]). Here,the plaintiffs established their prima facie entitlement to judgment [*2]as a matter of law with respect to this cause of action byshowing that the defendant failed to provide the injured plaintiff with a proper safetydevice and that this failure was a proximate cause of his injuries (see Quinteros v P. Deblasio,Inc., 82 AD3d 861, 861-862 [2011]; see also Henry v Eleventh Ave., L.P., 87 AD3d 523, 524[2011]).
However, in opposition, the defendant raised a triable issue of fact as to whether itwas an alter ego of the injured plaintiff's employer, which would relegate the plaintiffs tothe exclusive remedy provided by Workers' Compensation Law §§ 11and 29 (6) (see Thomas vDunkirk Resort Props., LLC, 101 AD3d 1721, 1722 [2012]; Andrade v BrookwoodCommunities, Inc., 97 AD3d 711 [2012]; George v IBC Sales Corp., 76 AD3d 950, 952 [2010]; Nelson v Shaner Cable, 2AD3d 1371 [2003]).
Further, the Supreme Court providently exercised its discretion in denying thatbranch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike thedefendant's answer or its first affirmative defense, since there was no clear showing thatthe defendant's failure to comply with discovery demands was willful or contumacious(see CPLR 3126; HoiWah Lai v Mack, 89 AD3d 990, 991 [2011]; Delarosa v Besser Co., 86AD3d 588, 589 [2011]; Palomba v Schindler El. Corp., 74 AD3d 1037, 1037-1038[2010]). In addition, the plaintiffs failed to submit an affirmation of good faith indicatingthat efforts had been made to resolve the purported discovery dispute prior to engaging inmotion practice, as required by 22 NYCRR 202.7 (a) (2) (see Hoi Wah Lai vMack, 89 AD3d at 991; Walter B. Melvin, Architects, LLC v 24 Aqueduct LaneCondominium, 51 AD3d 784 [2008]).
The plaintiffs' remaining contention is improperly raised for the first time on appealand, therefore, is not properly before this Court (see Potter v Potter, 116 AD3d 1021 [2014]; HSBC Bank USA, N.A. vCalderon, 115 AD3d 708 [2014]). Dillon, J.P., Lott, Austin and Barros, JJ.,concur. [Prior Case History: 2013 NY Slip Op 50142(U).]