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Starkey v. Capstone Enterprises of Portchester

June 9, 2006

RICHARD STARKEY AND MICHELLE STARKEY, PLAINTIFFS,
v.
CAPSTONE ENTERPRISES OF PORTCHESTER, INC., CAPSTONE ENTERPRISES, GLENMAN INDUSTRIAL & COMMERCIAL CONTRACTOR CORP., GLENMAN CONSTRUCTION CORPORATION, JMOA ENGINEERING, P.C.
BABFAR EQUIPMENT CORPORATION AND JOHN DOE ONE THROUGH JOHN DOE NINE, UNKNOWN ENTITIES INVOLVED IN THE INSTALLATION AND/OR SUPERVISION OF A TEMPORARY HEATING UNIT AT THE IRVINGTON HIGH SCHOOL/MIDDLE SCHOOL FACILITY, DEFENDANTS.
CAPSTONE ENTERPRISES OF PORTCHESTER, INC., THIRD-PARTY PLAINTIFF,
v.
ZODIAC INDUSTRIES, INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: McMahon, J.

DECISION AND ORDER DENYING DEFENDANT BABFAR EQUIPMENT CORPORATION'S MOTION FOR SUMMARY JUDGMENT

Introduction

Beginning in September 2002, plaintiff Richard Starkey was employed by Zodiac Industries ("Zodiac") as a foreman and HVAC mechanic, positions which entailed supervising craftsmen and physically installing duct work. He received an hourly wage.

In 2003, the Irvington Public School District was in the midst of a renovation project which included construction of a theater arts building. The school district hired several different companies to work on the construction project in various capacities, including Capstone Enterprises of Portchester ("Capstone), Glenman Industrial & Commercial Contracting Corp. ("Glenman"), and JMOA Engineering, P.C. ("JMOA"). Defendant Babfar Equipment Corporation ("Babfar") leased temporary heating units to the school district for use in its new buildings. Zodiac was hired as a subcontractor.

On January 15, 2003, Starkey was present at the construction site, installing the heating units, when the ladder that he was standing on broke. As a result, Starkey suffered a serious injury to his right ankle that required immediate surgery and months of physical therapy. Starkey never again worked for Zodiac after this incident.

On January 12, 2006, Starkey and his wife, plaintiff Michelle Starkey, filed a verified complaint in the Supreme Court of the State of New York, County of Westchester, naming Capstone, Glenman, JMOA, Babfar, and other unknown entities as defendants, and alleging that Richard Starkey was injured as a result of defendants' negligence and failure to comply with state regulations. On February 15, 2006, Babfar filed a Notice of Removal, removing the case to this Court. Defendant Babfar now moves for summary judgment. For the reasons stated below, the motion is denied without prejudice.

Babfar's Role in the Irvington Construction Project

Irvington hired several contractors and other organizations to participate in its construction project; however, the relative roles performed by each company are somewhat in dispute.

Starkey contends that the school hired Capstone and Glenman as contractors, while JMOA was hired to do design work and supervise the construction workers, and Zodiac Industries ("Zodiac") was hired by Capstone as a subcontractor to install heating units at the school. Plaintiffs' Rule 56.1 Statement ("Plaintiffs' 56.1") ¶¶ 2-3; see also Verified Complaint ("Ver. Cplt") ¶ 53; Plaintiffs' Affidavit ("Plaintiff") ¶ 6. Further, Starkey states that defendant Babfar leased these temporary heating units to Irvington, and also contracted to install the units at the construction site. 56.1 ¶ 4, 8. However, it is the precise role played by Babfar which remains in dispute.

Babfar asserts, through its president Bruce Berry, that it had no involvement with any work performed at the Irvington construction site other than leasing the temporary heaters to the school district. Plaintiffs' Exhibit E (Affidavit of Bruce Berry) ("Berry") ¶ 2. Specifically, Babfar contends that it was not involved in the heaters' installation, and that its employees neither worked, nor supervised others, at the Irvington construction site, nor were they present at the site at any time. Id. ¶¶ 3-7. In his deposition, Starkey acknowledged that he took orders only from his supervisor at Zodiac, Peter Pascalini. Plaintiffs' Exhibit A (Deposition of Richard Starkey from initial lawsuit) ("Starkey") at 47-48.

Documents regarding the relationship between Irvington and Babfar are arguably unclear. According to a Babfar job quote dated October 29, 2002, installation of the duct work was the responsibility of the "contractor"; however, the agreement does not make clear whether the term "contractor" applies to Babfar or to another party. Plaintiffs' 56.1 ¶ 8; see also Defendant's Exhibit E. The job quote lists both "Contractor Responsibilities" and "Services Included in Rental Price," and there is no overlap between the two sections. Defendant's Exhibit E at 4.

There is also some dispute over the ownership of the ladder from which Starkey contends that he fell. In his verified complaint, Starkey notes that the ownership of the ladder is uncertain, and that it could have been furnished either by Capstone, Glenman, Babfar, JMOA, the unnamed defendants, or a subcontractor. Ver. Cplt. ¶¶ 24, 36, 41, 47, 53. Babfar, however, maintains that it had no involvement with the ladder. Berry ¶ 9; see also Affidavit of Brian Kalman ("Kalman") at Exhibit F (Response to Notice to Admit). In his deposition, Starkey noted his belief that the ladder belonged to Zodiac, a conclusion which he drew based upon his frequent observations of the ladder on the back of Pascalini's truck. Starkey at 41.

Procedural History

Richard and Michelle Starkey initially brought suit against Glenman in the Supreme Court of the State of New York for the County of Westchester. After the discovery process revealed the presence of other parties, the initial suit was dismissed. Plaintiff ¶ 5. In its place, on January 12, 2006, the Starkeys brought suit against Capstone, Glenman, JMOA, Babfar, and nine unknown entities in the same court, alleging that Richard Starkey was injured as a result of defendants' negligence and failure to comply with state safety regulations, and that as a result Michelle Starkey suffered the loss of consortium of her husband. See Ver. Cplt. ¶ 55-57, ...


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