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Lopez v Coldwell Banker Meadow Realty Inc. 2008 NY Slip Op 33078(U) November 13, 2008 Supreme Court, Nassau County Docket Number: 13022/07 Judge: Thomas P. Phelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SHORT FORM ORDER
SUPREME COURT

STATE OF NEW YORK

Present:
HON. THOMAS P. PHELAN.

Justice
TRIAL/IAS PART 5 NASSAU COUNTY

GERVER LOPEZ,
ORIGINAL RETURN DATE:09/11/08

Plaintiff( s

SUBMISSION DATE: 10/22/08

INDEX No. : 13022/07

-against-

COLDWELL BANKR MEADOW REALTY INC. #1 REALTY and DEVELOPMENT, INC. , LAURA MUSCATELLI , STEVE BOTTA, LEE A. FALBO, CARV ALLARO CONTRACTING INC. , LAB DESIGN ASSOCIATES, ANIELLO SCIALLI PLUMBING, STASI BROTHERS ASPHALT CORP. , CA TIZONE ELECTRICAL CONTRACTING , INC., PHOENIX AIR CONDITIONING and HEATING, INC. , NATIONAL CONSTRUCTION RENTALS, INC. , TESTANI RUBBISH COMPANY
Defendant(s) .

MOTION SEQUENCE #4

The following papers read on this motion:

Notice of Motion................................................... Amended Notice of Motion...................................... Cross- Motion. Answering Papers..................................................
Reply. .

3,4 9,10

Motions by defendants, Steve Bott (" Botta" ) (Sequence 004) and Phoenix Air Conditioning and Heating, Inc. (" Phoenix ) (Sequence 005), and cross motions by defendants, Catizone Electrical Contracting, Inc. (" Catizone ) (Sequence 006) and Aniello Sciall Plumbing Sciall" ) (Sequence 007) for an order pursuant to CPLR 3212 , awarding them summary judgment dismissing the complaint of plaintiff , Gerver Lopez, are denied.

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RE:

LOPEZ v. COLDWELL, et ale

Page 2.

This action arises out of an accident that occurred on May 22, 2007, at premises known as 1605 Dale A venue, East Meadow , New York. At the time of the accident, plaintiff was

workig on the constrction of a new home at the subject premises. The date of the accident
was his fIrst day on the job. He was brought to the job site by his uncle who is apparently a subcontractor of the defendant , Carvallaro Contracting, Inc. Plaintiff claims that he was stading on a scaffold and was placing siding on the side of the house when he was caused to fall off the scaffold. He alleges that he fell from a height of approximately 3 stories. Plaintiff sustained severe injuries to his spine which have rendered him a paraplegic.
Plaintiff alleges that each of the defendants, inter alia,

, Lauterio Arevelo,

was negligent in the performance of

their work at the subject premises and were also negligent in that the work was performed in a dangerous, careless and improper manner. Plaintiff futher alleges that each of the defendants failed to warn him of a dangerous and defective condition and failed to protect him from gravity related dangers. To that extent, plaintiff alleges that he was allowed to fall from a scaffold and that defendants were negligent in failng to provide adequate safety equipment. general, defendats are alleged to be negligent in the general operation and control and work performed at the site.
Defendants Phoeni, Catizone, and Scialli, claim that since they were not on the site on the day of plaintiffs accident , they owed no duty to plaintiff to maintain the work site in a safe that as condition or to protect plaintiff from gravity related dangers. These defendats argue they were not present or performg any work on the day of the accident, it is axiomatic that they did not and could not have exercised any supervisory control over plaintiff or over his work. Defendants , Phoenix and Catizone, also submit that neither their personnel nor their canot be held equipment were on site on the date of plaintiffs accident; and, therefore, they responsible for negligently maintaining the work site or for improperly protecting plaintiff from gravity-related injuries. Defendants , Phoeni and Sciall, also assert that as subcontractors and not as owners or general contractors , the statutory causes of action asserted 200 , 241(6) and 240(1) are not in plaintiffs sumons and complaint under Labor Law

applicable to these defendants; thus, the only cause of action available to plaintiff as against these two defendants is common law negligence. In that respect, these defendants maintain that they were not performig any work at the subject premises at the time of plaintiffs accident and thus there is no evidence that they owed a duty to maintain a safe work place to plaintiff on or prior to plaintiffs accident. They submit that they were not owners, general contractors nor agents of the same and did not have any authority to direct, supervise or control plaintiff or plaintiffs work. Further, defendants submit that as plaintiff fails to specify which sections 241(6) should be
of the Industrial Code were violated, his claims pursuant to Labor Law

dismissed.

Sumar judgment is the procedural equivalent of a

tral

(Capelin Assoc. Inc.

v.

Globe Mfg.

when the proponent Corp. 34 NY2d 338 (1974)). It is a drastic remedy that wil only be granted 68 NY2d 320 v. Prospect Hosp. establishes that there are no trable issues of fact (Alvarez (1986)). Once the par seeking sumar judgment has made a prima facie showing of

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RE:

LOPEZ v. COLDWELL, et al.

Page 3.

entitlement to judgment as a matter oflaw , the party opposing the motion must come forward with proof in evidentiar form establishing the existence of trable issues of fact or demonstrate
an acceptable excuse for its failure to do so (Alvarez v.

Prospect Hosp.

supra;

Zuckerman

City

of New York 49 NY2d 557 562 (1980)). Mere conclusions , expressions of hope or v. City of New York supra). (Zuckerman unsubstantiated allegations are insufficient

In ths case , defendants , Catizone , Phoenix and Scialli , have established their prima facie entitlement to judgment as a matter of law. Accordingly, the burden shifts to plaintiff as the par opposing the motion to produce evidentiar proof in admissible form sufficient to establish
the existence of material issues of fact requiring a trial (Alvarez v.

Prospect Hosp. 68 NY2d 320

(1986)). In opposition , plaintiff maintains that as the depositions of the paries have not yet taken place , and in light of the fact that discovery remains pending, defendants ' summar judgment motions should be denied.

The determination of a summar judgment motion may be delayed to allow for fuer discovery

of sumar judgment canot be avoided by a claimed need for discovery unless some evidentiar basis is offered to suggest that discovery may lead to relevant Wylle Petrocell Constr. 257 AD2d 614 615 (1999); Sons Constr. Co. evidence (Ruttura s mere hope that District Attorney of County of Kings 2 AD3d 714 (2d Dept. 2003)). A par' fuer discovery wil reveal the existence of trable issues of fact is insuffcient to delay District Attorney of County of Kings (Wylle determination on the issue of sumar judgment 232 AD2d 550 (2d Dept. 1996)). Here , plaintiff has RWP Group, supra; Weltmann demonstrated an evidentiar basis to suggest that additional disclosure might lead to relevant evidence. The undisputed evidence thus far confirms that the construction site in question was the location of a custom home being built on behalf of defendants , #1 Realty & Development Ex. D). Defendant Carallaro Laura Muscatelli (" Muscatelli" ) and Carallaro (see PI's Opp. constrction ofthis home and also appears to appears to be the general contractor involved in the have hired all of the subcontractors , substantially, if not all , of which are named defendants herein. Plaintiff was brought to the work site and employed by his uncle , Lauterio Arevelo , who in tu was a subcontractor of defendant , Carallaro. Plaintiff avers in his affidavit that he speaks very little English and as a result had very little communication with any of the other people at the work site on the day of his accident. Plaintiff does not and canot know , without discovery, who was present at the site on the date of the accident and what their roles were. No pary, including Carallaro and Muscatell , has yet been deposed in this litigation. Thus , plaintiff has no basis to know whether they were working in the area where plaintiffs accident occured or some day prior and whether any condition they created led to the plaintiff fallng from the
However
( a) determination

where evidence necessar to oppose the motion is unavailable to the opponent (CPLR 3212 (f)).

scaffold.
It is

mere conclusions and unsubstantiated allegations or assertions are v. (Zuckerman City of New York insufficient to oppose the motion for summar judgment supra). However, in this case , plaintiff has offered an evidentiar basis to show that fuher discovery might lead to relevant evidence and that further discovery is necessar to advance an opposition to defendants ' prima facie entitlement to summar judgment as a matter oflaw. Accordingly, this Court herewith denies as premature defendants , Catizone , Phoenix and Sciall' s, motions for summary judgment.

tre that speculation ,

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~~~

RE:

LOPEZ v. COLDWELL, et al.

Page 4.

Defendant , Botta s motion for summary judgment is also denied. Defendant Botta maintains that plaintiff, based upon an incorrect tree preservation affidavit, has erroneously alleged that Botta is the owner of the premises in question. In his affidavit he states that the tree preservation affdavit form which he was fillng out while Muscatell was simultaneously fillng out an identical affdavit ended up with Muscatelli' s address being erroneously transposed on the form he executed. He states that he has absolutely no ownership interest , control or other relationship to the premises in question and that he was not a pary to any contract concernng the subject premises. Botta also attempts to submit the deed to the subject premises in support of his arguent that he does not own the subject premises but rather owns a nearby propert. He maintains that this evidence conclusively demonstrates that the propert in question is , in fact owned by co- defendant , Laura Muscatell. Additionally, Botta maintains that even if there remains an issue of fact as to whether he was the owner ofthe subject premises , the action should nevertheless be dismissed because the accident occured at a one- or two- family home and he is therefore subj ect to the one- or two- family homeowner defense outlined in the Labor
Law.

Defendant, Botta, has failed to make a prima facie showing of entitlement to judgment as a matter oflaw and thus his motion is denied , without regard to the sufficiency of the opposing
papers (Winegrad New York Uniy. Med. Center 64 NY2d 851 853 (1985)). Based upon the papers presented for this Court' s consideration , including the deed , this Cour is simply unable to deterine the owner(s) of the subject premises. There is no indication on the deed submitted as to the street address ofthe premises. Thus , ths Cour is unable to determine who owned the subject premises. Furher, defendant has failed to provide any evidence that the subject premises were , in fact , a one- or two- family home such that he would be entitled to the one or two family homeowner defense. For these reasons , defendant Botta s motion for sumar judgment is also denied.

This decision constitutes the order of the court.

Dated:

//-/3-61

HON THOMAS P. PHELAN

NOY 17 iuoa

Wingate , Russotti & Shapiro , LLP Attorneys for Plaintiff 420 Lexington Avenue , Suite 2750 New York , NY 10170
Gary J. Viscio , P. Attorney for Defendant Coldwell Banker Meadow Realty 55 Front Street , Suite 8
Rockvile Centre

NAS
CONT

',.I;IJ''f iv
CLERK' S OFFICE

, NY 11570

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RE:

LOPEZ v. COLDWELL, et ale

Page 5.

Kenneth J. Ready & Associates Attorneys for Defendants #1 Realty & Development and Lee A. Falbo 114 Old Country Road Mineola , NY 11501
Condon , Flaherty & 0' Callaghan Attorneys for Defendant Laura Muscatell
333 Earle Ovington Boulevard Uniondale , NY 11553- 3625

Att: Stefano A. Filppazzo, Esq.
Attorney for Defendant Steve Botta 16 Court Street , 28th Floor Brooklyn , NY 11241

Stefano A. Filppazzo , P.

Law Offces of Steven Cohn , P. C. Attorneys for Defendant Carvallaro Contracting, Inc. One Old Country Road Carle Place , NY 11514
Epstein , Franini & Gramatico Attorneys for Defendant Aniello Sciall 45 Crossways Park Drive , Suite 102

Woodbury, NY 11797
Attorneys for Defendant Stasi Brothers Asphalt Corp. 6851 Jericho Turnpike , Suite 250 P. O. Box 1306 Syosset , NY 11791
Barnes & Barnes , P. C. Attorneys for Defendant Catizone Electrical Contracting, Inc.
1461 Frankin A venue

Hamil , O' Brien , Croutier , Dempsey & Pender , P.

Garden City, NY 11530
Baxter , Smith , Tassan & Shapiro , P.

Attorneys for Defendant Phoenix Air Conditioning and Heating, Inc. 99 Nort Broadway Hicksvile , NY 11801

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RE:

LOPEZ v. COLDWELL, et ale

Page 6.

Hintz & Deveney, LLP Attorneys for Defendant National Constrction Rentals, Inc. One Huntington Quadrangle, Suite 3C01

o I Connor , 0 I Connor ,

Melvile, NY 11747-4415
LitchfIeld, Cavo , LLP Attorneys for Defendant Testani Rubbish Company 420 Lexington Avenue , Suite 2104

New York, NY 10170



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