| Assevero v Hamilton & Church Props., LLC |
| 2015 NY Slip Op 06567 [131 AD3d 553] |
| August 19, 2015 |
| Appellate Division, Second Department |
[*1](August 19, 2015)
| Lucy Assevero, Appellant, v Hamilton &Church Properties, LLC, Defendant/Third-Party Plaintiff-Respondent. CastleConstruction Group, Third-Party Defendant-Appellant. (And a Second Third-PartyAction.) |
Edelman & Edelman, P.C., New York, N.Y. (David M. Schuller of counsel), forplaintiff-appellant.
Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Lisa De Lindsay ofcounsel), for third-party defendant-appellant.
French & Casey, LLP, New York, N.Y. (Doug Rosenzweig of counsel), fordefendant/third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Schmidt,J.), dated April 27, 2012, as granted those branches of the defendant/third-partyplaintiff's cross motion which were for summary judgment dismissing the causes ofaction alleging violations of Labor Law §§ 240 (1) and 241 (6), anddenied her motion for summary judgment on the cause of action alleging a violation ofLabor Law § 240 (1), and the third-party defendant separately appeals, aslimited by its brief, from so much of the same order as denied those branches of its crossmotion which were for summary judgment dismissing the contractual and common-lawindemnification causes of action asserted in the third-party complaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting those branches of the motion of the defendant/third-party plaintiff which werefor summary judgment dismissing the causes of action alleging violations of Labor Law§§ 240 (1) and 241 (6), and substituting therefor a provision denyingthose branches of the motion; as so modified, the order is affirmed insofar as appealedfrom, with one bill of costs to the defendant/third-party plaintiff payable by thethird-party defendant, and one bill of costs to the plaintiff payable by thedefendant/third-party plaintiff.
Hugo Assevero was injured when he fell from a ladder while working on a project torenovate a four-story building located at 230 Elizabeth Street, Manhattan, which wasowned by Hamilton & Church Properties, LLC (hereinafter Hamilton). Hamilton'ssole member is Adam Woodward, who formed the limited liability company for thepurpose of purchasing the building. According to Assevero, the accident occurred whenthe unsecured extension ladder that he was [*2]descending shifted, causing him to fall from the third floorto the basement. On the date of the accident, there were no stairs, scaffolding, staging, ortemporary stairs in the building, and workers at the site were using ladders to travelbetween floors. The ladder Assevero was using when the accident occurred belonged tothe Castle Construction Group (hereinafter Castle), a subcontractor on the project.Following the accident, Assevero commenced this action against Hamilton, seeking torecover damages for violations of Labor Law §§ 200, 240 (1) and 241(6), and common-law negligence. Hamilton in turn commenced a third-party actionagainst Castle, seeking, inter alia, contractual and common-law indemnification.
At his deposition, Woodward testified that Hamilton purchased the subject buildingin September 2004 for $2.4 million. At the time of purchase, the ground floor of thebuilding was leased to a retail store that sold women's handbags and accessories, andthere were three residential apartments on the upper floors. The renovations which werein progress at the time of the accident added a fifth floor to the building, and convertedthe upper floors into two duplex residential apartments. Upon completion of therenovations, the duplex apartment on the second and third floors was leased to tenants,and the duplex apartment on the fourth and fifth floors was occupied by Woodward andhis family. The ground floor of the building remained available to be leased for retail use.On June 20, 2011, the New York City Department of Buildings issued a new certificateof occupancy, which classified the building in the J-3 occupancy group applicable toone- and two-family residential dwellings.
After depositions were completed, Assevero moved for summary judgment on thecause of action alleging a violation of Labor Law § 240 (1), arguing thatHamilton violated that provision by failing to provide him with any safety devices toprevent him from falling to the basement. Hamilton then cross-moved, inter alia, forsummary judgment dismissing the causes of action alleging violations of Labor Law§§ 240 (1) and 241 (6), arguing that the homeowners' exemption toliability applied because the building was an owner-occupied, two-family dwelling thatwas not used solely for commercial purposes, and Hamilton did not direct or control thework being performed at the time of the accident. Castle also cross-moved, inter alia, forsummary judgment dismissing the contractual and common-law indemnification causesof action asserted in the third-party complaint.
The Supreme Court granted those branches of Hamilton's cross motion which werefor summary judgment dismissing the causes of action alleging violations of Labor Law§§ 240 (1) and 241 (6), and denied Assevero's motion for summaryjudgment on the cause of action alleging a violation of Labor Law § 240(1), concluding that Hamilton was entitled to the homeowner's exemption from liabilityunder Labor Law §§ 240 (1) and 241 (6). The Supreme Court alsodenied those branches of Castle's cross motion which were for summary judgmentdismissing the contractual and common-law indemnification causes of action asserted inthe third-party complaint. Assevero died after filing his notice of appeal from theSupreme Court's order, and the administrator of his estate, Lucy Assevero, has beensubstituted as the plaintiff in this action.
"In 1980, the Legislature amended Labor Law §§ 240 and 241 toexempt 'owners of one and two-family dwellings who contract for but do not direct orcontrol the work' from the absolute liability imposed by these statutory provisions"(Bartoo v Buell, 87 NY2d 362, 367 [1996]; see Chowdhury v Rodriguez, 57 AD3d 121, 126 [2008]).The homeowners' exemption "was enacted to protect those people who, lacking businesssophistication, would not know or anticipate the need to obtain insurance to cover themagainst the absolute liability imposed" by Labor Law §§ 240 and 241(Lombardi v Stout, 80 NY2d 290, 296 [1992]). The intent of the homeowner'sexemption was to make the law fairer and more reflective of the "practical realitiesgoverning the relationship between homeowners and the individuals they hire to performconstruction work on their homes" (Cannon v Putnam, 76 NY2d 644, 649[1990]; see Khela v Neiger, 85 NY2d 333, 337 [1995]). The fact that title to anotherwise qualifying one- or two-family dwelling is held by a corporation rather than anindividual homeowner does not, in and of itself, preclude application of the exemption(see Parise v Green ChimneysChildren's Servs., Inc., 106 AD3d 970, 971 [2013]; Castellanos v United CerebralPalsy Assn. of Greater Suffolk, Inc., 77 AD3d 879, 880 [2010]; Uddin v Three Bros. Constr.Corp., 33 AD3d 691, 692-693 [2006]; Baez v Cow Bay Constr., 303AD2d 528, 529 [2003]).
[*3] Here,Hamilton failed to make a prima facie showing that the subject building qualified as atwo-family dwelling entitled to the protection of the homeowner's exemption. AlthoughHamilton submitted evidence that the building's certificate of occupancy classified itwithin the J-3 occupancy group that includes one- and two-family residential dwellings(see Administrative Code of City of NY § 27-266), thisclassification is not dispositive because it is primarily intended to govern what buildingcode safety standards are applicable to the building (see generally Greystone HotelCo. v City of N.Y. Bd. of Stds. & Appeals, 214 AD2d 467, 467-468[1995]).
Hossain v Kurzynowski(92 AD3d 722 [2012]), in which this Court considered the issue of whether athree-unit residential building qualified for the homeowner's exemption, is instructive. InHossain, the plaintiff was injured while performing repairs on a residentialbuilding owned by the defendants. The subject building was classified as a three-familydwelling by the New York City Department of Buildings, and contained three separateapartments, each one with a separate entrance. The defendants argued that the buildingshould nevertheless be considered a two-family dwelling because they and members oftheir family resided in two of the three apartments. This Court rejected the defendants'argument that the two apartments that they and their family members occupied should beconsidered one unit, pointing out that "these two apartments did not constitute asingle-family dwelling, as each provided separate living spaces on different floors, eachwith its own entrance" (id. at 724). This Court also noted that the defendantsfailed to submit any evidence demonstrating that the related occupants of the twoseparate apartments were living together and maintaining a common household as asingle family. Thus, as a matter of law, the two apartments occupied by the defendantsand their relatives did not together constitute a single-family dwelling, and the twoapartments coupled with the third did not constitute a two-family dwelling.
In this case, as in Hossain, the subject building does not qualify as aone-family or two-family dwelling within the scope of the exemption. The ground floorof the building contains a commercial unit intended for use as a retail store. Thecommercial unit has its own street level entrance, and is separate from the building's tworesidential apartments. Both of the apartments are also separate and have their ownentrances. Moreover, two of the three separate units in the building are used to generaterental income. Although the Legislature did not define the terms "one- or two- familydwellings" when it enacted the homeowner's exemption (see Van Amerogen vDonnini, 78 NY2d 880, 882 [1991]), extending the exemption to a three-unitbuilding of this nature does not further the statutory aim which underlies it. Since thebuilding does not qualify as a one-family or two-family dwelling, we reject Hamilton'scontention that it is entitled to the homeowner's exemption based upon application of the"site and purpose" test, which is used to determine the availability of the exemptionwhere a one or two-family dwelling is used for both commercial and residential purposes(see Cannon v Putnam, 76 NY2d at 650; Sanchez v Marticorena, 103 AD3d 1057, 1058 [2013]).Accordingly, the Supreme Court erred in granting those branches of Hamilton's crossmotion which were for summary judgment dismissing the Labor Law§§ 240 (1) and 241 (6) causes of action on the ground that Hamiltonwas entitled to the homeowner's exemption from liability under Labor Law§§ 240 (1) and 241 (6).
Contrary to the plaintiff's contention, she is not entitled to summary judgment on thecause of action alleging a violation of Labor Law § 240 (1). In support ofthe motion, Assevero submitted evidence establishing that he fell from an unsecuredextension ladder when the ladder shifted, which was sufficient to make a prima facieshowing of entitlement to judgment as a matter of law on the cause of action alleging aviolation of Labor Law § 240 (1) (see Grant v City of New York, 109 AD3d 961, 962 [2013];Gonzalez v AMCC Corp.,88 AD3d 945, 946 [2011]). However, in opposition, Hamilton raised a triable issueof fact as to whether Assevero's alleged misuse of the ladder was the sole proximatecause of the accident (seeRobinson v East Med. Ctr., LP, 6 NY3d 550, 553-555 [2006]; Daley v 250 Park Ave., LLC,126 AD3d 747, 749 [2015];Corchado v 5030 Broadway Props., LLC, 103 AD3d 768, 769 [2013]; Miller v Spall Dev. Corp., 45AD3d 1297 [2007]).
The Supreme Court properly denied those branches of Castle's cross motion whichwere for summary judgment dismissing the contractual and common-law indemnificationcauses of [*4]action asserted in the third-party complaint.Castle failed to make a prima facie showing that it had no contractual obligation toindemnify Hamilton. Although the subcontract purchase order between Castle andHamilton did not itself contain an indemnification provision, the purchase order madereference to an AIA Document, A-401 Standard Form of Agreement, which does containsuch a provision. Castle's own submissions raised a triable issue of fact as to whether theparties intended the provisions of the A-401 Standard Form of Agreement to beincorporated by reference into the purchase order (see Spiegler v Gerken Bldg. Corp., 35 AD3d 715 [2006]).Castle also failed to make a prima facie showing that it would not be required toindemnify Hamilton under the terms of the A-401 Standard Form of Agreement, if it wasindeed incorporated by reference, because its submissions raised triable issues of fact asto whether the accident arose out of, or resulted from, the performance of its work, andwhether the accident was caused by any negligent acts or omissions by Castle (see Balladares v Southgate OwnersCorp., 40 AD3d 667, 671 [2007]; Greco v Archdiocese of N.Y., 268AD2d 300, 302 [2000]). Since Castle's submissions revealed the existence of triableissues of fact as to its alleged negligence in causing the accident, it also failed todemonstrate, prima facie, its entitlement to judgment as a matter of law dismissing thecommon-law indemnification causes of action asserted in the third-party complaint (see Ginter v Flushing Terrace,LLC, 121 AD3d 840, 845 [2014]; Mikelatos v Theofilaktidis, 105 AD3d 822, 824 [2013]; Weitz v Anzek Constr. Corp.,65 AD3d 678, 681 [2009]). Dillon, J.P., Chambers, Hall, and Maltese, JJ.,concur.