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Ferluckaj v. Goldman Sachs & Co.

April 2, 2009

MILIHA FERLUCKAJ, RESPONDENT,
v.
GOLDMAN SACHS & CO., APPELLANT, HENEGAN CONSTRUCTION CO., INC. DEFENDANT.
GOLDMAN SACHS & CO., THIRD-PARTY PLAINTIFF,
v.
AMERICAN BUILDING MAINTENANCE CO., THIRD-PARTY DEFENDANT.



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

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Plaintiff fell off a desk on which she was standing while cleaning the inside of an office building window, in space leased to defendant Goldman Sachs & Co. We hold that, because uncontroverted evidence shows that Goldman did not hire plaintiff's employer to clean the window and that Goldman exercised no control over plaintiff's work, Goldman is not liable to plaintiff under Labor Law § 240 (1). Supreme Court and the Appellate Division erred in denying Goldman's motion for summary judgment.

The building in question is at 32 Old Slip, in Manhattan. Goldman leased a number of floors from the building's owner, Paramount Group, Inc. Paramount hired third party defendant, American Building Maintenance Co. (ABM), to provide cleaning and janitorial services. Among ABM's duties under its contract with Paramount was to clean the building's windows every three months. Tenants, including Goldman, could and sometimes did contract directly with ABM for "special services," but window cleaning was not treated as a special service. It was provided by Paramount to Goldman in exchange for the rent.

Plaintiff, an ABM employee, fell while she was cleaning a window on a floor that Goldman had not yet occupied. Goldman was scheduled to, and did, begin moving in on the day after the accident. Plaintiff claims, and we assume it to be true, that the cleaning she was working on was not a regular quarterly cleaning, but a special "preoccupancy" cleaning, to get the space ready for Goldman's use. Preoccupancy cleanings, however, were also provided for in the Paramount-ABM contract, which requires ABM to provide such cleanings without extra cost to Paramount: "Prior to tenant occupancy, contractor shall provide the initial cleaning or [sic] all interior windows for which there will be no charge to Paramount Group, Inc. or tenant."

There is no evidence in the record that Goldman hired ABM to perform either a regular quarterly cleaning or a preoccupancy cleaning. The contractor that Goldman used to do renovation work on the space, defendant Henegan Construction Co., Inc., did not subcontract any work to ABM.

In sum, the evidence points clearly and without contradiction to the conclusion that it was Paramount, not Goldman, that hired ABM to do the project on which plaintiff was working when she fell. Plaintiff does not claim that Goldman in fact supervised her work. Goldman therefore has no liability to plaintiff under Labor Law § 240 (1). The statute says:

"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."

This statute places a duty on "contractors and owners and their agents." It says nothing about lessees. That does not necessarily mean lessees can never be liable. Appellate Division cases have said that lessees who hire a contractor, and thus have the right to control the work being done, are "owners" within the meaning of the statute (Frierson v Concourse Plaza Assoc., 189 AD2d 609, 611 [1st Dept 1993]); Sweeting v Board of Coop. Educ. Servs., 83 AD2d 103, 114 [4th Dept 1981]; cf. Bart v Universal Pictures, 277 AD2d 4, 6 [1st Dept 2000] [occupant of space with power to control the work held "an agent of the fee owner"]). We assume, without deciding, that these cases are right, but they do not apply here. ABM was hired by the landlord, Paramount, not by Goldman, so there is no basis for holding Goldman to be an owner or owner's agent (see Guzman v L.M.P. Realty Corp., 262 AD2d 99 [1st Dept 1999]).

Plaintiff concedes that she cannot prevail if Goldman had no right to control ABM's work, but she says that the facts are not clear enough to justify granting Goldman summary judgment. She points out that, under the contract between Paramount and ABM, preoccupancy cleaning was to be done "upon request of Paramount," and notes that the record contains no direct evidence of a "request." Though it is clear that Goldman's contractor, Henegan, did not hire ABM to do this work, plaintiff speculates that, for some reason, Goldman might have done so directly. Plaintiff emphasizes that Goldman did not submit an affidavit denying that such a transaction occurred.

We find plaintiff's theorizing and the somewhat more elaborate theories offered by the dissent insufficient to defeat summary judgment. The idea that Goldman chose to hire ABM at its own expense, when ABM was already contractually obligated to Paramount to do the work for free, is farfetched. And if that did happen, plaintiff had an ample opportunity to show it. After taking discovery, she has unearthed no record of any payment for this service from Goldman to ABM, or any relevant communication between the two.

The burden of a party moving for summary judgment is to "make a prima facie showing of entitlement to judgment as a matter of law" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The moving party need not specifically disprove every remotely possible state of facts on which its opponent might win the case. Goldman's showing here was adequate to shift the burden to plaintiff "to produce evidentiary proof ... sufficient to establish the existence of material issues of fact" (id.). Plaintiff has not carried that burden.

Accordingly, the order of the Appellate Division should be reversed with costs, summary judgment granted dismissing the complaint as against Goldman Sachs & Co., and the ...


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