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Long Island Office Mario Lopez-Oviedo v. Joan Marvin

September 27, 2012

LONG ISLAND OFFICE MARIO LOPEZ-OVIEDO, PLAINTIFF,
v.
JOAN MARVIN, IRA MARVIN, ROBERT FUNK, AND
ROBERT FUNK, D/B/A ROBERT'S HANDYMAN'S SERVICE, DEFENDANTS.
JOAN MARVIN AND IRA MARVIN, THIRD-PARTY PLAINTIFFS,
v.
T/A SOLANO CONSTRUCTION, THIRD-PARTY DEFENDANT.
JOAN MARVIN AND IRA MARVIN, SECOND THIRD-PARTY PLAINTIFFS,
v.
ROGER BELL AND HUGHES DEVELOPERS, INC., SECOND THIRD-PARTY DEFENDANTS.
JOAN MARVIN AND IRA MARVIN, THIRD THIRD-PARTY PLAINTIFFS,
v.
FIRE ISLAND PARTNERS, LLC, THIRD THIRD-PARTY DEFENDANT.
FIRE ISLAND PARTNERS, LLC, FOURTH THIRD-PARTY PLAINTIFFS,
v.
ROGER BELL AND HUGHES DEVELOPERS, INC., FOURTH THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

FILED CLERK pm 9/27/2012 2:52 U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK

MEMORANDUM & ORDER

Plaintiff Mario Lopez-Oviedo ("Plaintiff") brought this personal injury suit against Joan and Ira Marvin (the "Marvins"), Robert Funk, and Robert Funk d/b/a Robert's Handyman Service (together with Funk, "Funk"). The Marvins brought third-party claims against (1) T/A Solano Construction ("Solano"); (2) Roger Bell and Hughes Developers, Inc. ("Bell"); and (3) Fire Island Partners LLC ("Fire Island"). Fire Island, in turn, brought a claim against Bell. This Memorandum and Order addresses the pending summary judgment motions, which will be described in more depth below.

BACKGROUND

Plaintiff, an employee of Solano Construction, was helping to build a house on an investment property at 26 Bungalow Walk in Ocean Beach, New York (the "Premises") when the table saw he was operating kicked back and severed two of his fingers. Although it was required to by regulation, see 12 N.Y.C.R.R. 23-1.12(c)(2), the saw did not have a blade guard at the time of the accident. As will be seen, who owned the Premises and who was responsible for supervising Plaintiff's work are important issues in this case, and they are hotly--although not always meaningfully--disputed.

DISCUSSION

Summary judgment is only appropriate where the moving party can demonstrate that there is "no genuine dispute as to any material fact" and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers "the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits." Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); FED. R. CIV. P. 56(c). "In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). And "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

There are four motions pending: (1) Plaintiff's motion for partial summary judgment (Docket Entry 109); (2) the Marvins' motion for summary judgment or, in the alternative, a conditional order of indemnity against Funk and Bell (Docket Entry 119); (3) Fire Island's motion for summary judgment or, in the alternative, a conditional order of indemnity against Funk and Bell (Docket Entry 121); and (4) Bell's motion for summary judgment (Docket Entry 115). The Court addresses each one in turn.

I. Plaintiff's Motion for Partial Summary Judgment Plaintiff asserts claims against the Marvins, the alleged owners of the Premises, and Funk, the alleged general contractor, for common law negligence and for violations of New York Labor Law Sections 200, 240, and 241(6). He moves for partial summary judgment on liability under Section 241(6). This statute provides:

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, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.

N.Y. Labor Law § 241(6). The provision "imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers." Comes v. N.Y. State Elec. & Gas Corp., 82 N.Y.2d 876, 878, 631 N.E.2d 110, 111, 609 N.Y.S.2d 168, 169 (1993); Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 317-318, 429 N.E.2d 805, 80, 445 N.Y.S.2d 127, 130 (1981).

Plaintiff asserts that summary judgment is appropriate because the Marvins and Funk, as the owners and general contractor, respectively, breached their duty of care by overseeing a job site with a table saw that did not have the required blade guard and that the missing blade guard was the proximate cause of Plaintiff's injuries.

Plaintiff's motion is denied because there is a factual question whether he was comparatively negligent in operating the saw. Comparative fault is a defense to Section 241(6) claims. See, e.g., Bajor v. 75 East End Owners Inc., 89 A.D.3d 458, 458-459, 932 N.Y.S.2d 40, 4 (1st Dep't 2011). Here, there is evidence that Plaintiff may have been partly at fault for the accident, including, for example, testimony (a) that Plaintiff pulled both prongs of the freshly cut wood through the saw ...


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