Rodriguez v Wheeler 2024 NY Slip Op 32331(U) July 9, 2024 Supreme Court, New York County Docket Number: Index No. 160839/2020 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 07/09/2024 04:57 P~ INDEX NO. 160839/2020 NYSCEF DOC. NO. 154 RECEIVED NYSCEF: 07/09/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ----------------------X INDEX NO. 160839/2020 SAMUEL RODRIGUEZ, YESENIA RODRIGUEZ, MOTION DATE 12/02/2023 Plaintiff, MOTION SEQ. NO. 002 - V -
DAVID WHEELER, DKW HOME IMPROVEMENTS, DECISION + ORDER ON JUSTINE WITZKE, ERIC WITZKE, MOTION Defendant. -------------------- - - - - - - ------------X
DAVID WHEELER, DKW HOME IMPROVEMENTS Third-Party Index No. 595483/2021 Plaintiff,
-against-
DRYWALL SOLUTIONS INC.
Defendant. --------------------------------------- -----X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 52, 53, 54, 55, 56, 57, 58, 59,60, 61, 62, 63, 64,65, 66,67, 68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 94, 95, 96, 97, 98, 99,100,101,102,103,104,105,106,107,108,109,110,111,112,113,114,115,116,117, 119,120,121, 122, 123,129,130,131,132,134,136, 137,138,144,145, 146,147,148,149,150,152 were read on this motion to/for JUDGMENT-SUMMARY Upon the foregoing documents, and oral argument, which took place on October 3, 2023,
where Gregory S. Gennarelli, Esq. appeared for Plaintiffs Samuel Rodriguez ("Mr. Rodriguez")
and Yesenia Rodriguez (collectively "Plaintiffs"), Jeffrey L. Richman, Esq. appeared for
Defendants/Third-Party Plaintiffs, David Wheeler ("Mr. Wheeler") and DKW Home
Improvements ("DKW"), Charles J. Scheld, Esq. appeared for Defendant Justine Witzke
("Justine") and Christoper L. Cornish, Esq. appeared for Defendant Eric Witzke ("Eric"), Mr.
Wheeler and DKW's motion for summary judgment is granted in part and denied in part. Eric's
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cross motion for summary judgment is granted. Plaintiffs' cross motion for summary judgment is
denied.
A. Background
This is a labor law action arising from Mr. Rodriguez's alleged fall from a scaffold while
at a residence owned by Justine (NYSCEF Doc. 1 at 11 10, 83-90). Justine's property was located
at 3002 Noyac Road, Sag Harbor, New York (the "Residence") (id. at ,i 10). Mr. Rodriguez was
an employee of the defaulted third-party defendant Drywall Solutions Inc. ("Drywall Solutions")
(NYSCEF Doc. 67 at 157). Drywall was a subcontractor of Defendant DKW (NYSCEF Doc. 93).
Justine and DKW executed a construction contract wherein DKW contracted to complete
construction work at the Residence (NYSCEF Doc. 92). Eric is Justine's father. Eric would visit
the Residence two to three times a month (NYSCEF Doc. 67 at 17: 16-17).
DKW obtained permits required for work at the Residence (NYSCEF Doc. 65 at 16:2-10).
Mr. Wheeler testified it was his responsibility to obtain the certificate of completion (id. at 17:7-
10). DKW subcontracted work to Drywall Solutions (id. at 18:2-6). DKW admitted that as general
contractor, it was DKW's responsibility to oversee the work that subcontractors performed (id. at
141 :2-6). DKW admitted that Justine never told DKW how to perform construction work and he
rarely saw Justine at the Residence. (id. at 142:9-14; 143:12-18).
Pursuant to DKW's contract, it agreed to be responsible for all acts and omissions of its
subcontractors, and DKW was responsible for safety (NYSCEF Doc. 92 at 119.5 and 9.10). The
contract contained terms for final payment: ifDKW considered the work substantially complete it
would have to conduct an inspection with Justine and Justine would provide a punch list of items
to be completed to reach final completion. (id. at 1 5 .2). This never occurred.
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Eric kept a scaffold at the Residence. (NYSCEF Doc. 67 at 21: 10-13 ). Eric testified that
when he left the Residence, the scaffold was disassembled and kept on the closed-in front porch
(id. at 23: 16-17 and 24:9-10). Eric never discussed the use of his scaffold with either DKW or
Drywall (id. at 24:18-25 and 25:2-19). He never instructed DKW or Drywall Solutions to use the
scaffold (id. at 25:3-8). Eric was responsible for other work including plumbing, electrical, and
HVAC work (NYSCEF Doc. 67 at 38:3-16). Eric was not responsible for the drywall work.
Prior to Mr. Rodriguez's fall, Eric and Justine met with Joseph Schweigert ("Mr.
Schweigert") from Drywall Solutions to discuss drywall installation which was either incomplete
or done incorrectly (NYSCEF Doc. 67. at 28:5-9). Mr. Wheeler was not present at the meeting
although his presence was requested. (id. at 28:10-13). Mr. Schweigert conceded that he fixed the
work pursuant to his obligations under the contract with DKW (NYSCEF Doc. 68 at 38). Mr.
Schweigert arrived at the residence on the date of the accident and told his employees not to use
Eric's scaffold. (id. at 48:19-25; 66:23-25). Prior to his fall, Mr. Schweigert instructed Mr.
Rodriguez to leave because there was not enough work. (id. at 52:5-12).
Mr. Rodriguez testified that he brought his own ladders and planks to complete his work
(NYSCEF Doc. at 44:7-8). Mr. Rodriguez testified that the ladders were sufficient to apply
sheetrock (id. at 46:6-13). Nonetheless, Mr. Rodriguez used Eric's scaffold on the date of the
incident, although he stated he never asked for permission (id. at 47:8-21). Mr. Rodriguez testified
there were no guardrails around the platform of the scaffold nor were there any safety harnesses
(id. at 51: 19-25 and 52:2-14). Mr. Rodriguez climbed up a ladder on the right side of the scaffold
and was attempting to use a crown stapler (id. at 58: 19-24; 61 :12-23). Mr. Rodriguez testified the
pressure from the crown stapler pushed the scaffold causing him to fall (id. at 65:4-10).
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B. The Instant Motion and Cross-Motions
1. Mr. Wheeler and DKW's Motion
DKW's motion is premised on the argument that it was not the general contractor on the
date of Mr. Rodriguez's accident (NYSCEF Doc. 55). They further argue that the Labor Law
§ 200 and common law negligence claims must be dismissed because they did not supervise or
control Mr. Rodriguez's work at the subject premises. Finally, DKW argues that Mr. Rodriguez
was the sole proximate cause of the accident because he had his own ladder which he could have
used but instead used the scaffold without permission and against Mr. Schweigert's direction and
refused to leave the premises despite being instructed to do so.
Eric opposed arguing that DKW was still general contractor, and simply because Mr.
Wheeler and DKW decided not to supervise Dry Wall's finishing work does not absolve them of
liability. Eric cites to the contract executed by DKW. Eric argues that because final payment was
not issued DKW remained general contractor. Plaintiffs opposed arguing that contributory
negligence does not exonerate a defendant where a Labor Law § 240( 1) violation exists. Plaintiffs
further oppose by pointing to facts that DKW served as the general contractor. Plaintiffs further
argue the general contractor had a duty to provide a safe job site to those lawfully present. 1
2. Eric's Cross-motion
Eric argues that he should be dismissed from this case because he was not the general
contractor but merely an advocate for his daughter (NYSCEF Doc. 95). He argues he had no
control over the means and methods by which Mr. Rodriguez was to install the comerbead. He
argues that Mr. Schweigert admitted the repair work was part of his subcontracted work with
1 Mr. Wheeler and DKW's reply to the opposition to their motion is largely repetitive of their original motion papers and so for the sake of brevity the Court omits a summary of them.
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DKW. Eric argues he cannot be liable under Labor Law § 200 because he had no notice of an
allegedly defective condition. DKW opposes by arguing it is an issue of fact as to whether Eric
was a general contractor. Plaintiffs oppose by arguing Eric provided a defective scaffold. In reply,
Eric argues his scrutiny of certain work did not transform him into a general contractor.
3. Plaintiffs' Cross-motion
Plaintiffs cross-move for summary judgment. Plaintiffs argue that DKW was the general
contractor on site responsible for the means and methods of the work being performed. Plaintiffs
argue because Mr. Rodriguez fell from an unsafe scaffold they are entitled to summary judgment
on their Labor Law§ 240(1) claim. Plaintiffs likewise argue that failure to provide safeguards or
fall protection equipment warrants summary judgment on their Labor Law § 241(6) claim.
Plaintiffs further argue that they are entitled to summary judgment on § 200.
Eric opposes on the grounds that he cannot be held liable because he was neither an owner
nor a contractor. Eric also argues that the scaffold was left unassembled, and Mr. Rodriguez was
never given permission to use it. Eric argues he had no notice of the allegedly defective condition.
DKW opposes on the grounds that the cross-motion is untimely. It also argues that
Plaintiffs cannot be granted summary judgment against DKW because it was not the general
contractor. It argues that Mr. Rodriguez's actions were the sole proximate cause of the accident
because he had his own ladder available to him but used a scaffold despite no express permission
to use the scaffold, and he refused to leave the Residence despite being instructed to do so.
C. Legal Analysis
1. Standard
Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
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Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial. See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];
Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1 st Dept 2003]). Mere conclusions of
law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North
Am. v Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]).
2. Mr. Wheeler and DKW's Motion for Summary Judgment2
a. Status as General Contractor
The Court cannot grant DKW's motion for summary judgment on the grounds as there are
triable issues of fact as to whether DKW was the general contractor. Mr. Rodriguez testified that
DKW was the general contractor on the date of the incident and someone from DKW visited him
at the hospital. Mr. Rodriguez's employer, Dry Wall Solutions, was only working at the Residence
pursuant to a contract with DKW. It is undisputed that DKW pulled a permit as a general contractor
and signed a contract with Justine to serve as a contractor. It is undisputed that the work for which
DKW was contracted included dry wall installation. DK W's contract outlined the means by which
the contractor could terminate the contract or when work would be considered finished, but the
uncontradicted record evidence shows those terms were not satisfied. DKW was invited to conduct
a walkthrough of the dry wall work with Justine, Eric, and Mr. Schweigert, yet DKW refused to
go. Refusing to carry out one's duties as a general contractor does not relieve the general contractor
2 No party has opposed Mr. Wheeler's application to be dismissed as an individual defendant and so the Court grants Mr. Wheeler's motion for summary judgment dismissing claims as to him individually. 160839/2020 RODRIGUEZ, SAMUEL vs. WHEELER, DAVID Page 6 of 12 Motion No. 002
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of their legal responsibility. The Court cannot grant summary judgment on the grounds that DKW
was not a general contractor.
b. Labor Law § 200
Viewing the facts in the light most favorable to the non-movants, DKW' s motion to dismiss
the Labor Law § 200 claim is denied. DKW agreed to be the contractor for the portion of the
project involving dry wall work. DKW agreed to be responsible for the acts and omissions of its
subcontractors, including Dry Wall Solutions, and agreed to be responsible for safety at the
Residence. Had DKW been present on the site while Mr. Rodriguez was at the premises, it could
have prevented him from mounting the scaffold. Based on this evidentiary record, the Court is
unable to dismiss the Labor Law§ 200 claims against DKW.
c. Labor Law §240(1)
The Court rejects DKW and Mr. Wheeler's argument that Mr. Rodriguez, as a matter of
law, can be considered the sole proximate cause of the accident. To raise a triable issue of fact as
to whether plaintiff was the sole proximate cause of an accident, the defendant moving for
summary judgment must produce evidence that adequate safety devices were available, that
plaintiff knew they were available and was expected to use them, and that plaintiff unreasonably
chose not to do so (Nacewicz v Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402-
403 [1st Dept 2013]). Although DKW highlights the testimony of Mr. Schweigert who claimed to
tell Mr. Rodriguez not to use the scaffold, this is contradicted by the testimony of Mr. Rodriguez
who claims nobody told him using the scaffold was forbidden. (id. at 403).
Likewise, although DKW and Mr. Wheeler argue Mr. Rodriguez should have used the
safety rails available at the Residence, it was not established that Mr. Rodriguez knew that safety
rails for the scaffold were present at the Residence. Likewise, there is no evidence that there was
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any fall protection offered to Mr. Rodriguez (Gutierrez v 451 Lexington Realty LLC, 156 AD3d
418 [1st Dept 2017]). It is well established that comparative fault is not a defense to an action
based on Labor Law §240(1) (Bland v Manocherian, 66 NY2d 452 [1985]). Accordingly, the
Labor Law § 240(1) claims cannot be dismissed as to DKW on summary judgment.
d. Labor Law§ 241(6)
DKW's motion for summary judgment seeking dismissal of Plaintiffs Labor Law§ 241(6)
is denied. To prevail on a Labor Law § 241(6) claim, a plaintiff must plead with particularity a
specific section of the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,601
[1993]). Plaintiffs allege violations of Industrial Code §§ 23-5.lG)(l) and 23-5.18(b) which
mandate that workers utilizing scaffolds "shall be provided with safety railings." Moreover, 23-
5.l(b) requires that workers be protected from the movement of scaffolds and requires that
scaffolds shall be secure against movement in any direction. Finally, 23-5.l(c)(2) requires that
every scaffold be provided with adequate horizontal and diagonal bracing to prevent a lateral
movement. Here, it is undisputed that (a) there were no safety railings on the erected scaffold, and
(b) the scaffold moved from the force of a staple gun and was therefore not secure against
movement. It is likewise undisputed that Mr. Rodriguez was completing drywall installation which
was within DKW scope of contracted work. DKW contracted to supervise the drywall installation
to ensure it was done in a safe manner. Accordingly, summary DKW is not entitled to summary
judgment dismissing Plaintiffs' Labor Law§ 241(6) claims.
3. Eric's Cross-motion for Summary Judgment
a. Labor Law§§ 240(1) and 241(6)
Eric's motion seeking summary judgment dismissing Plaintiffs' Labor Law §240(1) and
241 (6) claims is granted. Eric was neither a contractor nor an owner who supervised and controlled
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the work performed. There is no evidence in the record of any contracts which Eric entered with
anyone involved in construction work at the premises, let alone DKW or Dry Wall Solutions. Even
if Eric can be considered an agent for Justine, it is undisputed that Eric did not control the manner
and method by which Mr. Rodriguez conducted his work (see, e.g. Ajfri v Basch, 13 NY3d 592
[2009] [owners not liable where discussions were limited to results owners wished to see, not the
method or manner in which the work was then to be performed]; Urquiza v Park and 76th St., Inc.,
172 AD3d 518 [1st Dept 2019]; Levy v Baumgarten, 147 AD3d 823, 824 [2d Dept 2017] [alleged
discussion about scope of project and request to install a shelf and support beams insufficient to
transform defendant from a legitimately concerned homeowner into a de facto supervisor];
Thompson v Geniesse, 62 AD3d 541, 542 [1st Dept 2009] [owners periodically checking to see if
quality of the work was reflective of architect's plans does not constitute direction and control]).
Even if Eric was considered a contractor who was working on the site at the same time as
DKW and his subcontractors, it is undisputed that DKW was hired to be the general contractor for
the drywall portion of the project. Pursuant to DKW's contract with Justine, it assumed
responsibility for the acts of its subcontractors and assumed responsibility for workplace safety.
(Russin v Louis N Picciano & Son, 54 NY2d 311 [1981] [prime contractors could not be held liable
for failure to provide a safe place to work to general contractor's employee]). The undisputed facts
related to the drywall installation which caused Plaintiffs injury show that Eric was merely a
father who was advocating for his daughter. This is insufficient to impose liability (see also Nai
Ren Jiang v Yeh, 95 AD3d 970 [2d Dept 2012] [mere fact that homeowner kept construction
equipment in home did not establish that he directed or controlled work, and homeowners did not
become general contractors by hiring separate contractors to perform different aspects of project]).
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b. Labor Law § 200
Plaintiffs' Labor Law§ 200 and common law negligence claims are dismissed as to Eric.
Labor Law § 200 is a codification of the common-law duty to provide workers with a reasonable
safe place to work and so if Plaintiff's Labor Law § 200 claims fail so too does his common law
negligence claims (Mejia v Levenbaum, 30 AD3d 262 [1st Dept 2006]). As stated by the First
Department, under Labor Law § 200, the owner is not required to supervise the contractor for the
benefit of the contractor's employees unless the owner assumed direct responsibility for the
method of work performed (Lombardi v Stout, 178 AD2d 208,212 [1st Dept 1991]).
Eric did not assume direct responsibility for the method of work performed by Mr.
Rodriguez. Indeed, Mr. Schweigert testified that prior to Mr. Rodriguez's accident, he was present
at the Residence and told Mr. Rodriguez to go home. Nonetheless, Mr. Schweigert, rather than
ensuring Mr. Rodriguez did go home, decided to leave the Residence.
Further, it is undisputed that Eric was not present on the date of the accident, that Eric had
left the scaffold disassembled and segregated away from the worksite, and had Plaintiff asked Eric
to use the scaffold, Eric would not have consented. Based on these facts, the First Department's
decision in Scekic v. SL Green Realty Corp. is on point (132 AD3d 563, 565-566 [1st Dept 2015]).
In Scekic, the defendant "Schindler Elevator had no knowledge that its ladder was being used by
plaintiff, who was not its employee" (id.). Moreover, it was undisputed that Schindler would not
have consented to the use of its ladder if asked and kept its equipment segregated from the other
contractors' equipment. (id.). The First Department held that to impose liability on Schindler in
such a circumstance "stretches the concepts of duty and foreseeability too far, regardless of
whether Schindler's ladder was defective." The First Department's holding in Scekic applies to the
facts of this case (see also Hernandez v Pappco Holding Co., Ltd., 136 AD3d 981, 982 [2d Dept
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2016] [mere general supervisory authority at a work site is insufficient to impose liability under
Labor Law § 200]).
4. PlaintifPs Cross-Motion for Summary Judgment
Viewing the facts in the light most favorable to the non-movants, the Court finds that
material issues of fact preclude summary judgment on their Labor Law claims. 3 As stated by the
Court of Appeals, to recover under Labor Law § § 200, 240, and 241, a plaintiff must establish two
criteria: 1) that he was permitted to perform work on a structure and, 2) that he was hired by the
owner, the general contractor or an agent of the owner or general contractor (Mordkofsky v VC. V
Development Corp., 76 NY2d 573, 576 [1990]).
Before the Court is sworn testimony from Mr. Schweigert that Plaintiff was instructed not
to come to the Residence and to leave the Residence once he arrived. Plaintiff was instructed not
to use the baker scaffold and was not required to use a scaffold (NYSCEF Doc. 68 at 15:22-25;
18: 15-25; 52:5-18). Likewise, Mr. Rodriguez admitted that he brought his own ladder to complete
his work at the Residence and he admitted that this ladder was sufficient to apply sheetrock to the
ceiling of the Premises (NYSCEF Doc. 64 at 45:9-23; 46:10-13).
This testimony creates material issues of fact. Most pertinently, there is a material issue of
fact regarding whether Mr. Rodriguez was permitted to perform work at the Residence on the date
of the accident. It is entirely possible that a jury may credit Mr. Schweigert' s testimony and find
that Mr. Rodriguez was not entitled to be on the premises on the date of the accident and was
therefore not permitted to work on the Residence for purposes of Labor Law protection. The First
Department has affirmed denial of a motion for summary judgment where there is conflicting
evidence as to whether plaintiff had permission to perform work at the accident site on the day in
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question (Goya v Longwood Haus. Dev. Fund Co., Inc., 167 AD3d 402 [1st Dept 2018] citing
Aslam v Neighborhood Partnership Haus. Dev. Fund Co., Inc., 135 AD3d 790, 791-792 [2d Dept
2016]). The same conflict exists here. Accordingly, Plaintiffs' motion is denied.
Accordingly, it is hereby,
ORDERED that Defendants David Wheeler and DKW Home Improvements motion for
summary judgment dismissing all claims and crossclaims against them is granted in part and
denied in part; and it is further
ORDERED that Defendants David Wheeler and DKW Home Improvements' motion for
summary judgment is granted solely to the extent that all claims and crossclaims are dismissed
against Defendant David Wheeler solely, and is otherwise denied; and it is further
ORDERED that Defendant Eric Whitke's cross-motion for summary judgment dismissing
all claims and crossclaims against him is granted; and it is further
ORDERED that Plaintiffs' cross-motion for summary judgment is denied; and it is further
ORDERED that within ten days of entry, counsel for Defendant Eric Whitke serve a copy
of this Decision and Order, with notice of entry, on all counsel via NYSCEF; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
7/9/2024 DATE 0. MARY V. ROSADO, J.S.C. CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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