Vera v. Low Income Marketing Corp.

2016 NY Slip Op 8318, 145 A.D.3d 509, 43 N.Y.S.3d 307

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2016
• Docket: 1531 156861/12
• Status: Published

Opinions

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about July 16, 2015, which, insofar as appealed from, granted plaintiffs’ motion for partial summary judgment on the Labor Law § 240 (1) claim as against defendant Low Income Marketing Corp. (LIMC), denied LIMC’s motion for summary judgment dismissing the Labor Law §§ 200, 240 (1), and 241 (6) claims as against it and on its indemnification claims against defendant Skyline Scaffolding Group, Inc., and denied Skyline’s motion for summary judgment dismissing the common-law negligence claim and LIMC’s cross claims against it, modified, on the law, without costs, to grant Skyline’s motion, and otherwise affirmed.

The motion court properly granted plaintiffs’ motion for partial summary judgment on their Labor Law § 240 (1) claim as against defendant owner LIMC, and properly denied LIMC’s motion for summary judgment dismissing the Labor Law §§ 200, 240 (1), and 241 (6) claims as against it. The finding of the Workers’ Compensation Board (WCB) that plaintiff Claudio Vera was not an “employee” of the general contractor is not entitled to preclusive effect. Plaintiff has established that he was “employed” within the meaning of the Labor Law, i.e., he was suffered and permitted to work at the job site, entitling him to partial summary judgment on the issue of liability on the section 240 (1)- claim.

The doctrine of collateral estoppel, or issue preclusion, bars relitigation of issues of ultimate fact where the issues have been conclusively determined against one party in a proceeding where that party had a full and fair opportunity to litigate the issue (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]; Gilberg v Barbieri, 53 NY2d 285, 291 [1981]). As the party seeking to invoke collateral estoppel, it was LIMC’s burden to establish identity of issue (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]).

The WCB found that there was no employer/employee relationship between plaintiff and the general contractor, defendant New York Fast General Contracting Corp. (NY Fast), so as to require NY Fast to provide workers’ compensation benefits. There was no identity of issue as to the material question of plaintiff’s “employment” at the site, given the different statutory definitions of “employment” in the Labor Law and the Workers’ Compensation Law (see Baker v Muraski, 61 AD3d 1373, 1374 [4th Dept 2009] [determination by the WCB that the plaintiff was not employed by the defendant was not entitled to preclusive effect as the definitions of “employee,” “employer,” and “employed” in Labor Law § 2 (5) through (7) differ from those of “employer,” “employee,” and “employment” in section 201 (4) through (6) of the Workers’ Compensation Law]). In addition, the WCB made no determination that plaintiff was in any way a “volunteer” at the site. While the dissent would find an issue of fact requiring denial of plaintiffs’ motion for partial summary judgment, it agrees that there is no identity of issue between the WCB hearing and this action.¹ We accordingly find that the determination of the WCB is not entitled to preclusive effect.

Further, plaintiff was entitled to partial summary judgment as against LIMC. For purposes of determining the liability of an owner, such as LIMC, under Labor Law § 240 (1), the issue of whether plaintiff was employed by NY Fast or some other entity is of no moment, as long as it is undisputed that plaintiff was “permitted or suffered to work” on the premises on the date of the accident (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]; see e.g. Paredes v 1668 Realty Assoc., LLC, 110 AD3d 700, 701 [2d Dept 2013]; Knauer v Anderson, 299 AD2d 824, 825 [4th Dept 2002]). The owner is liable for a breach of section 240 (1) even if he did not supervise or control the work being performed and despite the fact that the person injured was an independent contractor engaged to do the work (see Haimes v New York Tel. Co., 46 NY2d 132 [1978]). The purpose of section 240 (1) of the Labor Law is “to minimize injuries to employees by placing ultimate responsibility for safety practices on owners and contractors, rather than on the workers, who as a practical matter lack the means of protecting themselves from accidents” (Martinez v City of New York, 93 NY2d 322, 325 [1999]).

Plaintiff submitted evidence demonstrating that his company was hired by NY Fast to supply containers and that plaintiff was properly at the work site. He testified that he had an agreement with a principal of NY Fast to help load the dumpsters and that he received compensation for doing so. The dissent complains that plaintiff’s submissions do not include an affidavit from the NY Fast foreman. However, plaintiff’s testimony on the issue is not hearsay and was uncontroverted.²

A contractor properly on the site to off-load dumpsters cannot be characterized as a “volunteer.” The NY Fast foreman unlocked the street-level entrance door in order to permit plaintiff entry. From there, plaintiff proceeded to a second-floor scaffold where he helped other workers load debris into a container. The NY Fast foreman instructed plaintiff concerning which materials to place in the dumpster, and of course, plaintiff was atop the scaffold at the time of the accident, refuting any suggestion that plaintiff was somehow unauthorized or a volunteer.

The sole issue at the workers’ compensation hearing was whether plaintiff was an employee of NY Fast so as to be entitled to workers’ compensation benefits. The sole finding made by the ALJ was that plaintiff was an “independent contractor” not entitled to receive workers’ compensation. The ALJ made no determination as to the scope of that work. Indeed, the ALJ noted that plaintiff testified that “he charges two different bills. . . . [H]e can pay just for the dumpster or a dumpster and personnel to help out.” The ALJ did not find that plaintiff’s work was “on his own” volition. Plaintiff testified that he was injured when a scaffold collapsed underneath him while he was helping to load a container with construction debris.

LIMC fails to point to any evidence demonstrating that plaintiff was not “employed” on the premises on the date of the accident, and therefore, fails to raise a triable issue of fact. Having established that he was “employed” within the meaning of the Labor Law, plaintiff is entitled to partial summary judgment on the issue of liability on his section 240 (1) claim.

The common-law negligence claim must be dismissed as against Skyline, because there is no evidence that Skyline created the condition that resulted in the collapse of the scaffold (see Urbina v 26 Ct. St. Assoc., LLC, 12 AD3d 225, 226 [1st Dept 2004]). The record shows that the scaffold did not receive any code violations following a city inspection and that there were no complaints about the condition of the scaffold after its installation, and plaintiff’s testimony establishes that the scaffold was sturdy before the accident.

In view of the foregoing, Skyline is entitled to summary judgment dismissing LIMC’s cross claims against it.

Concur— Renwick, Manzanet-Daniels and Webber, JJ.

1 . The dissent quibbles over the precise import of the Baker decision, but does not dispute that Baker held that in view of the differing definitions of “employee” in the Workers’ Compensation Law and the Labor Law, there was no identity of issue between a WCB proceeding and a Labor Law action. The further comment the court made concerning the element of payment does not detract from this essential holding.

2 . The testimony of Oscar Velasquez, the president and owner of NY Fast, was not probative as Mr. Velasquez was not present at the time of the accident and had no firsthand knowledge concerning how plaintiff was injured or what he was asked or permitted to do at the site.