United States District Court, W.D. New York
Laurence M. Karz, Hall & Karz, Canandaigua, NY, for Plaintiff.
Brian F. Sutter, Sugarman Law Firm LLP, Buffalo, NY, Frank E. Morreale, Holland & Knight LLP, Jacksonville, FL, for Defendant.
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Plaintiff Richard Saxby (" plaintiff" ) was injured when he fell off a roof on June 23, 2010 while making property repairs at 2072 Dewey Avenue, Rochester, New
York. A company owned and operated by Saxby, Finger Lakes Property Services, had been engaged, through several intermediary contractors, to perform the repairs. The Dewey Avenue property had been in mortgage foreclosure and was in the possession of the lender, First Union Corporation (" First Union" ).
In anticipation of a foreclosure sale, First Union contracted with LPS Field Services (" LPS" ) to perform " property preservation services."  These services included, but were not limited to, lock changes, securing, boarding, winterizing, lawn maintenance and debris removal. Def.'s Ex. A. (Dkt.# 7-1). In turn, LPS contracted with A-1 Property Services (" A-1" ), which in turn engaged East Coast Property Services, who then hired Saxby and his company, Finger Lakes Property Services.
Saxby alleges in his complaint that LPS is in the business of repairing and preserving properties. Specifically, it employs a " technology interface" to pair homeowners with perspective contractors. LPS is incorporated in Delaware with its apparent principal place of business in Ohio. LPS' agreement with A-1 identifies A-1 Property as the " Independent Contractor," and provides:
d. Independent Contractor acknowledges and agrees that it is acting as an Independent Contractor and not as an employee or agent of [LPS Field Services] and as such Independent Contractor will be solely responsible for the work to be performed and, other than receiving the request and description of work from [LPS Field Services], [LPS Field Services] does not have control of or direct the work to be done ..."
The Dewey Avenue property was allegedly " in distress, needed repairs, maintenance, construction, preservation, and/or refurbishing." Per LPS' Work Order, approval had been given to complete a three-page punch list of interior and exterior repairs. (Dkt. # 11-4). Specific authorization had been given to repair the chimney, and it was during his repair of the chimney that Saxby's fall took place. Id. at 2 (" Bid to mortar repair around the damaged chimney" ).
To recover for his injuries, Saxby commenced two lawsuits in state court. In the first, filed on November 4, 2010, Saxby sued two individuals, A-1, East Coast Properties, and three other subcontractors not parties to this action, alleging that they failed in their duties of managing a " construction site" by virtue of their not providing safe and proper equipment. That lawsuit remains pending in Ontario County Supreme Court, New York.
On September 7, 2011, Saxby sued LPS in a separate action, making the same allegations of negligence (Count I) and violations of New York Labor Law §§ 200, 240, and 241 (Count II). Saxby seeks to hold LPS liable for " negligent hiring" of A-1, and for otherwise failing to oversee the property preservation services. On the basis of diversity, LPS removed the action to this Court on October 13, 2011. Shortly ...