WORKER HURT USING PROPERTY OWNERS' LOG SPLITTER CAN'T SUE; DEFENSE SUMMARY JUDGMENT GRANTED DISMISSING CASE

Court: Supreme Court, Appellate Division, Second Department, New York.

Case: Marlon Ramos v. Robert P. Baker

Date: Jan. 31, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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In an action to recover damages for personal injuries, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated February 17, 2011, as granted those branches of the plaintiff's motion which were for leave to amend the complaint to add causes of action alleging violations of Labor Law Sec. 200 and regulations under the United States Occupational Safety and Health Act, and alleging negligent entrustment and negligent failure to warn, and (2) from an order of the same court, also dated February 17, 2011, which denied their cross motion for summary judgment dismissing the complaint or, in the alternative, for summary judgment dismissing the amended complaint.

ORDERED that the first order dated February 17, 2011, is affirmed insofar as appealed from; and it is further,

ORDERED that the second order dated February 17, 2011, is reversed, on the law, that branch of the defendants' cross motion which was for summary judgment dismissing the amended complaint is granted, and that branch of the defendants' cross motion which was for summary judgment dismissing the complaint is denied as academic; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

In November 2005, the defendant Robert P. Baker, Jr., allegedly arranged with Rene Rivera, the owner of nonparty Woodland Tree Care, Inc. (hereinafter Woodland), to have two men come to his property and split wood. On November 20, 2005, the plaintiff went to the defendants' property with a coworker and, while using a log splitter owned by either Woodland or Rivera, was injured when his coworker started the machine while the plaintiff's hand was still inside. The defendants were not present while the work was being done. Rivera had left the log splitter on the defendants' property a week earlier, with Baker's permission.

The plaintiff filed for Workers' Compensation benefits under Woodland's policy and testified at a hearing that he was working for Woodland on the day of the accident. In December 2006, a Workers' Compensation Law Judge found that the plaintiff was an employee of Woodland and had no employment relationship with Baker, and it awarded the plaintiff Workers' Compensation benefits under Woodland's policy. In December 2007, a panel of the Workers' Compensation Board affirmed the award. In September 2008, the plaintiff commenced this action against the defendants alleging common‑law negligence.

After discovery was completed, the plaintiff moved for leave to amend the complaint pursuant to CPLR 3025(b) to assert causes of action alleging violations of Labor Law Secs. 200, 241(6), and regulations under the United States Occupational Safety and Health Act (hereinafter OSHA), and alleging negligent entrustment and negligent failure to warn. The defendants cross‑moved for summary judgment dismissing the complaint or, in the event that the court were to grant the plaintiff's motion for leave to amend the complaint, for summary judgment dismissing the amended complaint. The Supreme Court granted the plaintiff's motion for leave to amend the complaint except insofar as the plaintiff sought to add a cause of action alleging a violation of Labor Law Sec. 241(6). In a separate order, the Supreme Court denied the defendants' cross motion for summary judgment.

Applications for leave to amend pleadings should be freely granted except when the delay in seeking leave to amend would directly cause undue prejudice or surprise to the opposing party, or when the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Lucido v. Mancuso, 49 A.D.3d 220, 222, 851 N.Y.S.2d 238). Here, the Supreme Court did not improvidently exercise its discretion in granting those branches of the plaintiff's motion which were for leave to amend the complaint to add causes of action alleging violations of Labor Law Sec. 200 and OSHA regulations, and alleging negligent entrustment and negligent failure to warn. The defendants were not unduly prejudiced or surprised by the timing of the motion, and the causes of action that the Supreme Court permitted the plaintiff to add were neither palpably insufficient nor patently devoid of merit (see Lucido v. Mancuso, 49 A.D.3d at 232, 851 N.Y.S.2d 238). Nonetheless, the defendants, on their cross motion, were entitled to summary judgment dismissing the amended complaint.

As to the causes of action alleging negligent entrustment and negligent failure to warn, the defendants established their prima facie entitlement to judgment as a matter of law by tendering evidence that they lacked actual or constructive notice of the allegedly dangerous condition presented by alleged defects in the log‑splitter that the plaintiff was using when he was injured (see Coffey v. Flower City Carting & Excavating Co., 2 A.D.2d 191, 192, 153 N.Y.S.2d 763, affd. 2 N.Y.2d 898, 161 N.Y.S.2d 149, 141 N.E.2d 632; cf. Mulhall v. Hannafin, 45 A.D.3d 55, 58, 841 N.Y.S.2d 282). In opposition, the plaintiff failed to raise a triable issue of fact (see Guzzi v. City of New York, 84 A.D.3d 871, 873, 923 N.Y.S.2d 170; Byrne v. Collins, 77 A.D.3d 782, 784, 910 N.Y.S.2d 449; cf. Jablonski v. Jakaitis, 85 A.D.3d 969, 971, 926 N.Y.S.2d 137).

The defendants were also entitled to summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 200. As to this claim, the plaintiff is estopped from asserting that he was employed by Baker, rather than by Woodland or Rivera, because that position would be inconsistent with the finding made at the Workers' Compensation proceedings (see Kilcer v. Niagara Mohawk Power Corp., 86 A.D.3d 682, 683_684, 926 N.Y.S.2d 224; Dupkanicova v. James, 17 A.D.3d 627, 628, 793 N.Y.S.2d 512; Santiago v. Dedvukaj, 167 A.D.2d 529, 562 N.Y.S.2d 200; Calhoun v. Big Apple Wrecking Corp., 162 A.D.2d 574, 575, 557 N.Y.S.2d 90). To succeed on a claim under Labor Law Sec. 200 against a property owner, a plaintiff injured by his or her use of defective equipment provided by his or her own employer must establish that the defendant had the authority to supervise or control the performance of the work (see Ortega v. Puccia, 57 A.D.3d 54, 62, 866 N.Y.S.2d 323; cf. Chowdhury v. Rodriguez, 57 A.D.3d 121, 129_130, 867 N.Y.S.2d 123). Here, it is undisputed that the log splitter that allegedly caused the plaintiff's injury was owned by Woodland or Rivera. In addition, inasmuch as the defendants established prima facie that they did not bear _the responsibility for the manner in which the work [was] performed_ (Ortega v. Puccia, 57 A.D.3d at 62, 866 N.Y.S.2d 323), they established prima facie that they did not have the supervision or control authority necessary for the imposition of liability under Labor Law Sec. 200 (id.). The plaintiff failed to raise a triable issue of fact in opposition (see Pacheco v. Halstead Communications, Ltd., 90 A.D.3d 877, 935 N.Y.S.2d 595).

Inasmuch as the defendants were not the plaintiff's employer, they were entitled to summary judgment dismissing the cause of action based on alleged violations of OSHA regulations (see Khan v. Bangla Motor & Body Shop, Inc., 27 A.D.3d 526, 529, 813 N.Y.S.2d 126; Riley v. ISS Intl. Serv. Sys., 5 A.D.3d 754, 756, 774 N.Y.S.2d 182).

Accordingly, the Supreme Court should have granted that branch of the defendants' cross motion which was for summary judgment dismissing the amended complaint.

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