June 28, 2012
Jesus FARIAS, Plaintiff,
John Douglas SIMON, Jr., Ellen S. Parry, and John Doe Contractor, Defendants. John Douglas Simon, Jr. and Ellen S. Parry, Third-Party Plaintiffs, Guttilla Contracting Ltd. and Michael Guttilla, Third-Party Defendants. No. 113267/08.
This decision has been referenced in a table in the New York Supplement.
Jason Shapiro, Esq., Shapiro Law Offices, PLLC, Bronx, for plaintiff.
Linda A. Stark, Esq., Michael J. Miliano, Esq., New York, for Guttilla.
Raymond M. D'Erasmo, Esq., Savona, D'Erasmo & Hyer LLC, New York, for Simon & Parry.
BARBARA JAFFE, J.
By notice of motion dated December 20, 2011, third-party defendant Guttilla Contracting Ltd. (Guttilla) moves pursuant to CPLR 3212 for order dismissing the third-party complaint. Defendants/third-party plaintiffs John Douglas Simon, Jr. (Simon) and Ellen S. Parry (Parry) oppose.
By notice of motion dated January 4, 2012, Simon and Parry move pursuant to CPLR 3212 for an order dismissing plaintiff's claims against them. Plaintiff opposes.
By notice of motion of the same date, plaintiff moves pursuant to CPLR 3212 for summary judgment on Simon and Parry's liability. Simon and Parry oppose.
On October 19, 2005, plaintiff, then employed by Guttilla, was performing construction work on a single-family home owned by Simon and Parry when the scaffolding on which he was standing collapsed, and he fell to the ground, sustaining physical injuries. (Affirmation of Linda A. Stark, Esq., dated Dec. 20, 2011 [Stark Aff.], Exhs. C, D, E). Plaintiff was taken to the hospital and diagnosed with a right-sided epidural hematoma, a left temporal hemorrhagic contusion, and a fractured frontal bone. ( Id., Exhs .F, G, H). On October 24, 2005, Dr. A.A. Rawanduzy performed sugery on him to remove the hematoma. ( Id. ). Thereafter, he spent five days in a rehabilitation facility. ( Id. ).
Dated December 5, 2005, Dr. Rawanduzy's follow-up report reflects that his " examination [of plaintiff] showed a well-healed craniotomy scar[, that] he has hair grown back and it covers most of the scar, [and that] [d]epending on his clinical progress, he might be able to return to work sometime in late January or February 2006." ( Id., Exh. F).
In a second follow-up report dated January 16, 2006, Dr. Rawanduzy states that his " [e]xamination [of plaintiff] showed a well-healed surgical scar[, that] there was no evidence of any neurological deficit[, and that plaintiff] may go back to work in February 2006." ( Id. ).
On September 17, 2008, plaintiff commenced the instant action with the filing of a summons and verified complaint, asserting claims against defendants for negligence and violations of Labor Law §§ 200, 240, and 241, and Rule 23 of the Industrial Code. (Affirmation of Jason Shapiro, Esq., dated Jan. 4, 2012 [Shapiro Aff .], Exh. B).
At an examination before trial (EBT) held on July 21, 2009, plaintiff testified, inter alia, that he has not worked since the accident and that one of his doctors, whose name and speciality he cannot remember, told him he could no longer work a result of his injuries. ( Id., Exh. D). He claimed that his " mind doesn't work as fast as it used to," that he daily experiences vision and memory problems, and that he has scarring on the right side of his head, eyebrow, and bridge of his nose. ( Id. ).
At an EBT beginning on July 27, 2009, and continuing on January 25, 2010 and January 26, 2011, Parry testified that in 2001, when Simon inherited the property from his father, they discussed selling it, renting it, or using it as a summer home, that they decided to renovate it with the intention of using it as a second home, that they hired Guttilla as " they needed someone who would [ ] oversee and control the work," and that the renovations began in July 2005. (Affirmation of Jason Shapiro, Esq., in Opposition, dated Feb. 21, 2012 [Shapiro Opp. Aff.], Exh. B). According to her, they decided to rent out the property " at the very end of the renovations," or sometime during the Spring of 2007, as the renovations had cost more than they anticipated. ( Id. ). She admitted having spoken to a realtor about renting out the property and that she saved her card in case she " ever changed her mind," and although she does not recall whether the conversation occurred before or after the renovations had begun, she stated that she did not speak to the realtor again until after she had contacted other realtors in 2006. ( Id. ). She also admitted that they began renting the property out during the Fall of 2007 and that she and her family have never lived there. ( Id. ).
On or about October 20, 2009, Simon and Parry commenced a third-party action, asserting claims for contribution and indemnification against Guttilla. (Stark Aff., Exh. D).
In a report dated December 9, 2009, Dr. Jerome Block, Simon and Parry's expert, states that plaintiff complains of daily headaches and memory problems, and that during his examination of plaintiff he noticed " a somewhat broad scar in the right temporal region with evidence of [a] craniotomy defect beneath his scar." ( Id., Exh. G). He opined that although " there is no doubt that [plaintiff] had intracranial bleeding [and] a hemorrhagic contusion or contusions," " there is a paucity of objective findings of neurological dysfunction," and that " with vocational rehabilitation [he] would be capable of returning to the workforce." ( Id., Exh. H).
At an EBT held on January 24, 2010, defendant Michael Guttilla, sole shareholder of Guttilla, testified that the Guttilla employees who worked on subject property received instruction from and were supervised by Antonio Diaz, a Guttilla supervisor, that all tools and equipment at the site, including scaffolds, were owned and provided by Guttilla, and that Simon and Parry never instructed or supervised his employees or provided them with any equipment. (Shapiro Opp. Aff., Exh. L). According to him, Simon and Parry told him they wanted to move into the property when they hired Guttilla to renovate it, and they decided to rent it out " at the end of the job." ( Id. ).
At an EBT held on January 26, 2010, Simon testified that he and Parry decided to renovate the property because they wanted to live there, that they had no intention of renting it out when they obtained a line of credit to finance the renovations, and that he does not recall when they decided to rent it out. ( Id., Exh. A). He confirms that the land adjacent to the home slopes slightly downward. ( Id. ).
In a report dated May 2, 2011, Dr. Alan Jacobs, Guttilla's expert, states that plaintiff's " mild concussion and facial lacerations d[o] not cause [him] much trouble," that he malingered on the cognitive tests he was administered, and that there is " no reason th[at] [plaintiff] has not returned to employment as a carpenter[, as] [h]is accident ... has left him with no chronic problem that should be preventing his gainful employment commensurate with his education and skills." (Stark Aff., Exh. I).
Dr. Hal Gutstein, plaintiff's expert, states in his report dated June 3, 2011 that plaintiff suffered from a traumatic brain injury, facial scarring, and a skull deformity, that plaintiff's accident proximately caused his injuries, and that they " have produced meaningful and partial impairments of his cognitive abilities." ( Id., Exh. G). He does not opine as to plaintiff's employability. ( Id. ).
Plaintiff's other experts, Dr. Kim Buschio and Dr. Jason Brown, state in their report dated June 27, 2011 that plaintiff sustained a traumatic brain injury, an epidural hematoma, and permanent neuropsychological impairment causally related to his traumatic brain injury. ( Id. ). They too do not opine as to plaintiff's employability. ( Id. ).
At an EBT held on August 3, 2011, Diaz testified that Parry instructed him as to the colors of the walls, molding, and kitchen cabinets, that he periodically made progress reports to her, that he never witnessed her or Simon telling Guttilla employees how to perform their work, and that Parry told him they planned to move into the house. (Shapiro Opp. Aff., Exh. M).
By affidavit dated February 21, 2012, plaintiff states, in pertinent part, that the land on which the scaffold stood was inclined and that he fell to the ground after " it swayed back and forth, the wood comprising the platform split apart, [and] the middle of the scaffold collapsed." ( Id., Exh. N).
II. GUTTILLA'S MOTION
Guttilla denies that plaintiff sustained a grave injury, as there exists no evidence that he suffers from a neurological condition or disorder attributable to the accident, that he is unemployable in any capacity, or that his facial scarring is severe and permanent. (Stark Aff.).
In opposition, Simon and Parry claim that Gutstein's finding that plaintiff sustained a traumatic brain injury and plaintiff's testimony about his memory loss and blurred vision raise issues of material fact as to whether he sustained a grave injury to his brain. (Affirmation of Raymond M. D'Erasmo, Esq., in Opposition to Guttilla's Motion, dated Feb. 22, 2012). They also maintain that there exist triable factual issues as to whether plaintiff sustained facial disfigurement constituting a grave injury given Gutstein's finding that he has a disfiguring scar and a skull deformity. ( Id. ).
In reply, Guttilla maintains that there exists no evidence of plaintiff's unemployability, noting that Block and Jacob opined that he is able to work, and that there exists no evidence reflecting that plaintiff's facial injury is so severe as to constitute a grave injury, noting that no party has exchanged photographs of plaintiff from before and after the accident so that severity of the disfigurement may be ascertained. (Affirmation of Linda A. Stark, Esq., in Reply, dated Mar. 2, 2012).
A party seeking summary judgment must demonstrate, prima facie, entitlement to judgment as a matter of law by presenting sufficient evidence to negate any material issues of fact. ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853  ). If the movant meets this burden, the opponent must rebut the prima facie showing by submitting admissible evidence, demonstrating the existence of factual issues that require trial. ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562 ; Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872  ). Otherwise, the motion must be denied, regardless of the sufficiency of the opposition. ( Winegrad, 64 N.Y.2d at 853).
Pursuant to Workers' Compensation Law § 11, an employer may not be held liable for contribution to or indemnification of any third person for an employee's injuries " unless such third person proves through competent medical evidence that such employee has sustained a grave injury'." Grave injuries include, as pertinent here, " an acquired injury to the brain caused by an external physical force resulting in permanent total disability" or a " permanent and severe facial disfigurement."
a. Acquired brain injury resulting in permanent total disability
A person has a permanent total disability when evidence establishes that he or she is unemployable in any capacity. ( Rubeis v. Aqua Club Inc., 3 N.Y.3d 408, 417  ).
Here, notwithstanding that Dr. Gutstein, Dr. Buschio, and Dr. Brown failed to opine as to plaintiff's employability, as their conclusion that plaintiff is cognitively impaired directly contradicts Dr. Jacob's determination that he malingered on the cognitive tests and thus suffers from no chronic problem preventing his employment, there exist triable factual issues as to whether plaintiff's brain injuries render him permanently and totally disabled. ( See Eddine v. Federated Dep't Stores, Inc., 72 A.D.3d 487 [1st Dept 2010] [where plaintiff's examining physician concluded that he had suffered " a mild traumatic brain injury," and exhibited no evidence of malingering, and " defendant's examiner found no disability due to any neurological disorder, instead concluding that plaintiff's symptoms were typical of a somatization disorder related to her desperate quest for financial compensation,' " " starkly contradictory conclusions" raised issue of fact] ).
b. Permanent and severe facial disfigurement
Whether a plaintiff has sustained a severe facial disfigurement may be determined as a matter of law according to the following criteria: (1) whether the injury has " detrimentally alter[ed] the plaintiff's natural beauty, symmetry or appearance, or otherwise deform[ed]" him or her; (2) whether " a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly" ; and (3) whether the injury " greatly alter[ed] the appearance of the face from its appearance before the accident." ( Fleming v. Graham, 10 N.Y.3d 296, 300  ).
Here, absent any photographs of plaintiff's face, or any indication in the record as to the extent of his facial injuries beyond that they were apparent to three of the physicians who examined him, whether his scarring and skull deformity have severely disfigured his face may not be determined. Accordingly, Guttilla has failed to sustain its burden of demonstrating that plaintiff did not sustain a grave injury to his face.
III. PLAINTIFF'S AND DEFENDANTS' MOTIONS
Simon and Parry deny that they may be held liable for plaintiff's injuries, as they neither controlled nor supervised Guttilla's work and thus may not be held liable in negligence, they intended to use the property as a second home when the accident occurred and may thus not be held liable under the Labor Law pursuant the homeowner's exemption, and there exists no evidence that they violated the Industrial Code. (Affirmation of Raymond M. D'Erasmo, Esq., dated Jan. 4, 2012).
In opposition, and in support of his motion for summary judgment, plaintiff denies that Simon and Parry are exempt from liability, as the renovations were performed in preparation for the property's rental. He also asserts that they may not rely on Michael Guttilla's or Antonio Diaz's hearsay testimony. And, he claims that, as the scaffold was erected on sloping land, and as the sloping condition of the land preexisted the construction project, Simon and Parry may be held liable in negligence and pursuant to Labor Law § 200 notwithstanding that they neither controlled nor supervised Guttilla's work. (Shapiro Aff.; Shapiro Opp. Aff.; Affirmation of Jason Shapiro, Esq., in Reply, dated Mar. 7, 2012).
In opposition to plaintiff's motion, and in reply, Simon and Parry maintain that their deposition testimony reflects that they intended to use the property as a second home when the accident occurred and thus that their subsequent rental of the property is immaterial. (Affirmation of Raymond M. D'Erasmo, Esq., in Opposition to Plaintiff's Motion, dated Feb. 21, 2012; Affirmation of Raymond M. D'Erasmo, Esq., in Reply, dated Mar. 6, 2012).
1. Common law negligence and Labor Law § 200 claims
To state a negligence claim, a plaintiff must establish the existence of a duty on defendant's part, breach of that duty, and damages. ( Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 576  ). A landowner has a duty to provide workers with a safe work site. ( Lombardi v. Stout, 80 N.Y.2d 290, 294  ).
Labor Law § 200 is codification of the landowner's duty. ( Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352  ). It provides, in pertinent part, that all work sites:
shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protection to all such persons.
" Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed." ( Cappabianca v.. Skanska USA Bldg. Inc., 99 A.D.3d 139, 143 [1st Dept 2012] ). Where the injury arises from a defect or dangerous condition, the landowner is liable if he created or had actual or constructive notice of it, whereas if the injury arises from " the manner and means of the work, including the equipment used," he is liable if he exercised supervisory control over the work. ( Id. ). An owner exercises supervisory control when he " bears responsibility for the manner in which the work is performed." ( Allan v. DHL [USA], Inc ., 99 A.D.3d 828, 832 [2d Dept 2012] ).
Here, as Parry's, Guttilla's, and Diaz's testimony reflects that Parry and Simon neither instructed Guttilla's employees as to the manner in which they performed their work nor provided them with any equipment, Parry and Simon have demonstrated, prima facie, that they may not be held liable under the common law or section 200. ( See Affri v. Basch, 13 N.Y.3d 592  [defendant owners did not exercise supervisory control where their " participation was limited to discussion of the results [they] wished to see, not the method or manner in which he work was to be performed," and they did not provide workers with any equipment or materials] ). Absent any evidence in the record reflecting that the sloping nature of the land on which the scaffold was erected contributed to its collapse, plaintiff's assertion his injuries may have resulted from this condition is speculative and thus raises no triable factual issues.
2. Homeowner's exemption to Labor Law §§ 240(1) and 241
Labor Law §§ 240(1) and 241 impose strict liability on contractors and property owners for their failure to provide workers with certain safety equipment and their failure to comply with certain safety requirements, respectively. ( Sheehan v. Gong, 2 A.D.3d 166 [1st Dept 2003] ). However, " owners of one and two-family dwellings who contract for but do not direct or control the work" are exempt from liability. (Labor Law §§ 240, 241). Whether the exemption applies is determined according to the site and purpose of the work. ( Khela v. Neiger, 85 N.Y.2d 333, 337 ; Cannon v.. Putnam, 76 N.Y.2d 644  ). This test is " employed on the basis of the homeowners' intentions at the time of the injury underlying the action." ( Davis v. Maloney, 49 A.D.3d 385, 386 [1st Dept 2009], quoting Allen v. Fiori, 277 A.D.2d 674 [3d Dept 2000] ).
Here, as Simon's and Parry's testimony reflects that they decided to renovate the property with the intention of using it as a second home, and that they did not decide to rent it out until after the accident, they have demonstrated, prima facie, that they are exempt from liability under sections 240(1) and 241. That they considered selling or renting the house when Simon first inherited it and that they have not yet moved in raise no issues of fact as to the intended purpose of the renovations at the time of the accident. Nor does Parry's admission that she had consulted with a realtor.
In light of this determination, plaintiff's contentions regarding Simon and Parry's reliance on Guttilla's and Diaz's testimony and whether there exists evidence that Simon and Parry violated the Industrial Code need not be addressed.
Accordingly, it is hereby
ORDERED, that third-party defendant Guttilla Contracting Ltd.'s motion for summary judgment on the third-party complaint is denied; it is further
ORDERED, that defendants John Douglas Simon, Jr. and Ellen S. Parry's motion for summary judgment on plaintiff's claims against them is granted; it is further
ORDERED, that plaintiff's motion for summary judgment on his claims against defendants John Douglas Simon, Jr. and Ellen S. Parry is denied; and it is further
ORDERED, that the main action is severed and dismissed, and the third-party action shall continue under Index Number 113267/08.