Construction, Free Labor, Sister = No Case

Saturday, August 13, 2005 | 0

CONSTRUCTION WORKER RENOVATING HOUSE WITHOUT PAY FOR HIS SISTER DOES NOT HAVE A LABOR LAW CASE

Singh v. Deopaul, NYLJ 8/02/05 (Supreme Court, Kings County) (SCHACK, j)

A construction accident occurred at about 1:30 P.M. on September 13, 2000, at a single family home in Ozone Park, New York. Plaintiff and defendant are brother and sister. The premises are owned by defendant and her father-in-law. Despite two owners, only Ms. Deopaul was named as a defendant. Defendant moved for summary judgment and dismissal of plaintiff's complaint.

At the time of the accident, plaintiff was standing on a makeshift scaffold he had built. The scaffold broke and plaintiff suffered various fractures after falling to the ground.

Plaintiff, in his complaint, claimed negligence by defendant in defendant's failure to provide plaintiff with a safe place to work "under his said contract of hiring" and failing to notify him of dangers and perils at the work site. Further, plaintiff alleged that "scaffolding furnished and provided by the Defendant gave way. Nowhere in the complaint did plaintiff claim any violations of Labor Law 240, the "scaffold law," or Labor Law 241, dealing with safety at construction sites.

Defendant was renovating her one family house and adding a second floor. Defendant denied hiring a contractor, and testified that the work was to be performed by her husband, her two brothers (including plaintiff) and several friends. She testified that plaintiff, her brother, directed the work. She also testified that her brother and his friends were not paid for their work.

Plaintiff admitted that defendant's house was a single family house and that he didn't have a contract with his sister for the work at her house. Further, plaintiff claimed he was supervising the job, after talking each day with defendant's husband, his brother-in-law.. Plaintiff admitted at his EBT, that he was never paid for his work at the accident site.

Labor Law 240 (1) exempts the owners of "one and two-family dwellings who contract for but do not direct or control the work" from providing scaffolding and similar devices for workers who are elevated "as to give proper protection to a person so employed." Labor Law 241, dealing with construction site safety for employees, also exempts the owners of "one and two-family dwellings who contract for but do not direct or control the work." It is undisputed that the construction site in question is a one family house and defendant "did not direct or control the work."

Plaintiff admitted in his EBT that didn't have a contract to perform the work and that he never had an agreement with his defendant sister to be paid. An "employee" is defined in Labor Law 2 (5) as "a mechanic, workingman, or laborer working for another for hire."

The Court of Appeals explained in Lombardi v. Stout, 80 NY2d 290, 296 (1992) that Labor Law 240 "is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents. In the instant case, plaintiff admits to supervising the job and constructing the scaffold from which he fell."

"In the case at bar, plaintiff volunteered to help his sister with the construction. Plaintiff admits to not being paid and not having any agreement for payment for services rendered."

"A volunteer who offers his services gratuitously cannot claim the protection afforded by the 'flat and unvarying duty' flowing to this special class contained in section 240."

"In the instant case, there is no proof that defendant was involved in any manner, shape or form with directing or controlling the construction project. Plaintiff admitted to acting as a volunteer, assisting his sister and brother-in-law, and was actively involved in the supervision of the project. Further, he admitted to constructing the scaffold from which he ultimately fell and was injured. It is crystal clear that Labor Law 240 and 241 does not apply to this case."

However, due to defendant's procedural error, she was held not entitled to summary judgment.

"Defendant's motion for summary judgment suffers from a fatal flaw," held the Court, in that it was filed too late. The note of issue was filed on August 17, 2004 and defendant's motion for summary judgment was filed 122 days later on December 17, 2004. CPLR 3212 (a) permits the filing of a summary judgment motion in the 30 to 120-day period after the note of issue is filed, "if no such date is set by the court," and the 120-day time limit cannot be extended "except with leave of court on good cause shown." Kings County Supreme Court Civil Term Rule 13, of its Uniform Civil Term Rules, provides that "no motion for summary judgment may be made more than 60 days after filing a Note of Issue . . . except with leave of the Court on good cause shown. See, CPLR 3212 (a)."

"The Court cannot entertain a late summary judgment motion only on its merits. Defense counsel needs to be reminded of Brill v. City of New York, 2 NY3d 648 (2004), and its progeny. In Brill, defendant City of New York filed a summary judgment motion almost one year after the note of issue was filed, without any reason for the delay and without leave of the court. Despite the City's meritorious claim, the Court of Appeals reversed the Kings County Supreme Court's holding for the City, and the Appellate Division, Second Department's affirming opinion. The Court instructed... that: 'good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion - a satisfactory explanation for the untimeliness - rather than simply permitting meritorious, nonprejudicial filings, however tardy. That reading is supported by the language of the statute - only the movant can show good cause - as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all, or a perfunctory excuse, cannot be 'good cause.'"

"Therefore, in the absence of a showing of good cause by defendant, despite any meritorious claims, defendant's late motion for summary judgment must be denied."

Comment: Although defendant's Motion was denied, plaintiff now faces the prospect of going to trial without a legally-cognizable case against the defendant. Unless he can prove that actual negligence by his sister caused his accident -- which does not appear to be the case -- he will lose.

by NY attorney Lawrence Rogak.

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