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MULLEN v. KELLAM

April 27, 1993

TERRY A. MULLEN and GAIL P. MULLEN, Plaintiffs,
v.
BAYARD KELLAM, Individually and as EXECUTOR OF MARGARET RIVES KELLAM, Defendant.



The opinion of the court was delivered by: DAVID N. HURD

 United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 Plaintiffs move for an order from this court granting them partial summary judgment on the issue of liability upon the defendant pursuant to Section 240 of the N.Y.S. Labor Law. Defendant cross-moves for summary judgment on the basis that he is exempt from any absolute liability as contained in Section 240(1). Defendant also moves to dismiss plaintiffs' Section 200 and common law negligence claims due to a lack of proof of the "direction and control" necessary to impose liability.

 FACTS

 The basic facts on the issues of liability are not in dispute. The plaintiff, Terry A. Mullen, who operates a business called Four Corners Painting, was hired by Randall Perham ("Perham"). Perham contracted with the defendant to stain the buildings located on defendant's property known as Twinbrook Farm ("Farm"), in East Chatham, New York. *fn1" The Farm, which defendant does not operate as a commercial farm, is a parcel of land consisting of 259 acres, upon which there are four buildings; an eight room primary dwelling, a cottage, an equipment shed, and a barn/silo complex. The barn/silo complex is separated from the primary dwelling by a distance of approximately 75 yards, with the cottage set between the two buildings.

 In the spring of 1991, the defendant and Perham negotiated an agreement whereby Perham would stain the cottage, equipment shed, and the barn/silo complex for $ 13,080.00. The price to stain the barn/silo complex alone was $ 8,000.00. The initial offer from Perham was $ 4,000.00 higher, but when defendant stated he could not afford that price, Perham responded that he could borrow scaffolding from a friend, thus avoiding the rental price for the scaffolding. On October 25, 1991, plaintiff was working on a scaffold erected and standing next to the silo portion of the barn/silo complex, painting the silo when the scaffold collapsed and toppled over, causing injuries to the plaintiff. *fn2" At the time of the accident, plaintiff was standing on a ladder which was owned by defendant and used by Perham with defendant's permission, atop the four-section scaffolding apparatus. *fn3"

 The silo portion of the barn/silo complex consists of four floors as living quarters, and at the time of the accident, was occupied by a tenant, Richard Miller ("Miller"). The silo had been rented by Miller from about October 1981, through February 1992, per an oral agreement; 1991 rent was $ 250.00 per month. At no time was the barn/silo complex ever occupied by the defendant or any member of his family, nor was the barn portion otherwise occupied as a dwelling.

 MOTION FOR SUMMARY JUDGMENT

 A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc, 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. In other words, a motion for summary judgment pursuant to Fed R. Civ. P. 56 shall be granted only when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Lang v. Retirement Living Pub. Company, 949 F.2d 576, 580 (2d Cir. 1991). Therefore, "summary judgment will not lie if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Thus, if the nonmoving party can not produce sufficient evidence to support the jury verdict, summary judgment is proper. Id. at 249. "In determining how a reasonable jury would decide, the Court must resolve all ambiguities and draw all inferences against the moving party." Lang, 949 F.2d at 580. However, when the moving party has met the burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Liberty Lobby, 477 U.S. at 247-48. At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id. "The judge's function is not to weigh the evidence and determine the truth of the matter," Liberty Lobby, at 248, "such is the prerogative of the finder of fact." Murphy v. Provident Mutual Life Insurance Company, 923 F.2d 923, 930 (2d Cir. 1990)(Kearse, J., dissenting), cert. denied, U.S. , 112 S. Ct. 65. 116 L. Ed. 2d 40 (1991). The judge's role is "to determine whether there does indeed exist a genuine issue for trial." Liberty Lobby, at 249. In a case where both sides have moved for summary judgment, as is the case at bar, each side must sustain its burden of proving the absence of disputed issues of material fact in order to be successful. As noted above, the liability facts with respect to Sections 240(1) & 200 and common law negligence are not in dispute, so the question is whether those facts create an issue which must be decided by a jury.

 SECTION 240

 Section 240(1), (2) & (3) of the New York State Labor Law provide that:

 
(1) All contractors and owners and their agents, except owners of one and two family dwellings who contract for, but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. (emphasis added).
 
(2) Scaffolding or staging more than twenty feet from the ground or floor . . . or erected with stationary supports, except scaffolding wholly within the interior of a building and covering the entire floor space of any room therein, shall have a safety rail of suitable material properly attached, bolted, braced, or otherwise secured, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, with only such openings as may be necessary ...

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