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Campos v. 68 East 86th Street Owners Corp.

Supreme Court of New York, New York County

July 12, 2013

Jose Orlando CAMPOS, Plaintiff,
v.
68 EAST 86TH STREET OWNERS CORP., Defendant. No. 105776/08.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

SALIANN SCARPULLA, J.

In this Labor Law action, third-party defendant Jeffrey Rosen (" Rosen" ) moves for summary judgment dismissing the third-party complaint and any cross claims asserted against him (motion sequence 002), and defendant 68 East 86th Street Owners Corp. (" Owners Corp." ) moves for summary judgment dismissing the complaint as to common-law negligence and Labor Law §§ 200, 240(1), and 241(6) claims, all counterclaims and/or cross claims asserted against it (motion sequence 003). Plaintiff Jose Orlando Campos (" Campos" ) cross-moves for partial summary judgment against defendant 68 East 86th Street Owners Corp. on his Labor Law § 240(1) cause of action.[1]

Campos was working for second third-party defendant Primacy Contracting Inc. (" Primacy" ) on July 16, 2007, when he fell from an A-frame ladder while preparing the ceiling of a closet for painting. The apartment was a cooperative apartment located at 68 East 86th Street in Manhattan, New York. Third-party defendant Jeffrey Rosen (" Rosen" ) was the owner of the apartment, and Owners Corp. was the cooperative corporation.

It is undisputed that Campos received work instructions from Primacy, and not Rosen or Owners Corp. The ladder that he was using was supplied by Primacy. At the time of the accident, Campos was standing on the third step of the ladder from the top. Campos used the ladder while sanding another closet in the room prior to beginning his work on the second closet. He stated that he had set the ladder in position, and made sure that the ladder was locked in an open position. At the time of the accident, no one else was in the room with him. Juan Rodriguez (" Rodriguez" ), the vice president and co-owner of Primacy, was working in another room in the apartment.

At his deposition, Campos, who is Spanish speaking and was testifying through a translator, stated that he did not remember how he fell. He said that he was not dizzy or light-headed before his fall. He said that " the ladder moved forward and I went back." He also said the ladder was outside the closet after the fall, although it was inside the closet before his fall. When asked about his position after the fall, Campos indicated his position, which was described as being in a sitting position. He said that his back was on the ground inside the closet, and his feet were outside the closet. He hit his head on the area where a door would have been, had there been a door on the closet, " [b]ecause the ladder went out and I went backwards."

In an affidavit, Campos states that the ladder he used was an aluminum A-frame ladder that was old. He did not know the weight capacity rating for the ladder. At the time, he weighed approximately 240 pounds. At the time of the accident, he had already sanded the ceiling of the first closet and was working on the second closet. He put the ladder inside the second closet, opened it, and made sure the brackets on both sides of the ladder were locked to stay open. While he was sanding the ceiling, the ladder suddenly went forward and outward, and Campos fell backward. He states that he did not simply lose his balance and fall off of the ladder, nor did he become dizzy or light-headed. He hit his head when he fell, and was told by Rodriguez that he had lost consciousness for about a minute and a half. When he regained consciousness, he was on his back on the floor with his knees upward, as if he were in a sitting position, but lying on his back. His upper body was inside the closet and his legs and feet were outside of the closet. The ladder was no longer half in the closet, as he had positioned it, but was at the opposite wall of the room.

The State of New York Workers' Compensation Board awarded Campos disability payments, and concluded that he is permanently and totally disabled as a result of his work-related injury. Campos testified that he has chronic pain, takes pain medication, walks with a cane and wears a belt all the time, including when he sleeps, to support his lower back. He undergoes physical therapy once a week. He has not gone back to work at all since the accident because of the pain.

Discussion

Motion 002

Rosen moves for summary judgment dismissing the third-party complaint and all claims against him. Rosen argues that Labor Law § 240(1) and § 241(6) does not apply to an owner of a one-family residence who was not involved in directing the work, and therefore, he can not be held liable.

Owners Corp. contends that Rosen should not be dismissed from the action because he was supposed to obtain insurance naming Owners Corp. as an additional insured. By failing to obtain such insurance, he has left Owners Corp. exposed to liability, in violation of the proprietary lease. Rosen denies that he was obligated to obtain permission or insurance for doing the minor painting that was involved. Both parties refer to the proprietary lease in support of their positions.

The proprietary lease provides, in relevant part:

" 11. The Lessee agrees to save the Lessor harmless from all liability, loss, damage and expense arising from injury to person or property occasioned by the failure of the Lessee to comply with any provision hereof, or due wholly or in part to any act, default or omission of the Lessee or of any person dwelling or visiting in the apartment, or by the Lessor, its agents, servants or contractors when acting as agent for the Lessee as in this lease provided. This paragraph shall ...

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