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FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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NACI UZEYIROGLU and Index No.: 157947/2015
ACELYA UZEYIROGLU,
AFFIRMATION IN SUPPORT
Plaintiffs,
-against-
EDLER ESTATE CARE INC.,
JON P. VACCARI and STEPHEN FLEMING,
Defendants.
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WILLIAM DAKS,an attorney duly admitted to practice law before the Courts ofthe State
of New York hereby affirms the following to be true under the penalty of perjury:
1. I am a Senior Associate to the law firm of Wood,Smith, Henning,and Berman,LLP,
attorneys for defendants, JON P. VACCARI and STEPHEN FLEMING ,and am fully familiar with
the facts and circumstances heretofore had herein by virtue of my review ofthe file maintained by
my office.
2. I submit this Affirmation in support of defendants' motion seeking an order: (1)
pursuant to CPLR § 3212 granting summary judgment to defendants JON P. VACCARI and
STEPHEN FLEMING and dismissing plaintiffs Labor Law §200 and common law negligence
claims; (2) dismissing plaintiffs Labor Law §240 (1) claim as against defendants Vaccari and
Fleming;(3)dismissing plaintiffsLabor Law §241 (6)claims as to defendants Vaccari and Fleming;
(4) along with such further relief as this Court deems just and proper.
PRELIMINARY STATEMENT
3. This is an action for personal injuries commenced by the plaintiff, Naci Uzeyiroglu,
arising out of an alleged incident which occurred on February 27, 2015, at the construction of the
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Fleming-Vaccari residence, which was located at 22 and 26 S. Harbor Drive, North Haven, New
York. Plaintiff was employed bynon-party Tebbens Steel, when he allegedly fell from a ladder and
sustained injuries. Thereafter, plaintiffcommenced this action against defendants alleging violations
of New York State Labor Laws §§ 200, 240(1), 241(6), along with common law negligence.
4. It is respectfully submitted that the instant motion by defendants JON P. VACCARI
ar~d STEPHEN FLEMII~,TG for summary judgment and di~mi~sal of plaintiffs complaint must b~
granted as the evidence establishes that:(1) JON P. VACCARI and STEPHEN FLEMING did not
exercise control over the manner, methods and means utilized by the plaintiff to perform his work
and did not create any alleged unsafe condition upon which liability can be imposed, pursuant to
Labor Law § 200 or common law negligence;(2)the defendants are not proper Labor Law§ 240(1)
defendants based upon the homeowners exemption; and (3) the defendants did not violate any
sections of the Industrial Code which would support a Labor Law § 241(6)claim and are similarly
not proper Labor Law § 241(6) defendants based upon the homeowners exemption. Therefore,
plaintiffs complaint must be dismissed as against JON P. VACCARI and STEPHEN FLEMING as a
matter of law.
RELEVANT PROCEDURAL HISTORY
5. On or about July 30,2015 PlaintiffNaci Uzeyiroglu commenced this action through
the filing of a summons and complaint in New York County Supreme Court on or about July 30,
2015. Copies of the pleadings are annexed hereto collectively as Exhibit "A".
6. On or about August 26,2015,Edler Estate Care, Inc. joined issue and interposed an
answer to the complaint. A copy ofDefendant's Verified Answer is annexed hereto as Exhibit"B".
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7. On or about October 19,2015, Jon P. Vaccari and Stephen Fleming joined issue and
interposed an answer to the complaint. A copy ofDefendant's Verified Answer is annexed hereto as
Exhibit "C".
8. On or about November 19, 2015, plaintiff served a Verified Bill of Particulars,
plaintiff alleges that defendants violated Labor Law §§ 200, 240(1) and 241(6), along with a
vi~lati~~ of Industrial Cede §§ 23-i.i(b) and 23-i.21. A capy of plaintiffs Verified Bill ~f
Particulars is annexed hereto as Exhibit "D"
9. The deposition ofthe plaintiff was conducted on August 11,2016. The deposition of
Edler Estate Care's owner, James Edler, was conducted on March 3, 2017. The deposition of
defendant, Jon P. Vaccari, was conducted on March 8, 2017.
10. Plaintiffs counsel served the note ofissue and certificate ofreadiness for trial on or
about September 27, 2017, a copy of which is annexed hereto as Exhibit "E".
11. This motion is based upon numerous documents exchanged during the course of
discovery and the testimony given during the examinations before trial. These documents are
annexed hereto and incorporated herein as follows:
Exhibit "F" - Deposition transcript of plaintiff, Naci Uzeyiroglu
Exhibit "G" - Deposition transcript of defendant, Edler Estate Care, Inc. by James
Edler
Exhibit"H" - Deposition transcript of defendant ,Jon P. Vaccari and Stephen
Fleming, by Jon P. Vaccari
Exhibit "I" - Photograph depicting construction site
Exhibit "J" - Application for Building Permit
Exhibit "K" - Plaintiffs C-3 Report
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Exhibit "L" - Edler Estate Care, Inc. Contract
Exhibit"M" - Tebbens Steel Contract
Exhibit "N" - Various Proposals Submitted to Edler Estate
FACTUAL BACKGROUND
12. This is an action for personal injuries commenced by the plaintiff, Naci Uzeyiroglu,
arising out ofan incident which occurred on February 2i,2015,at the premises iocatec~ at 22 and 26
S. Harbor Drive, North Haven, New York.
13. At the time ofthe incident, the plaintiff was employed by non-party, Tebbens Steel.
14. As discussed in greater detail herein, the plaintiff allegedly fell from a ladder while
removing bolts from a beam. At the time of the accident, plaintiffs work was not directed or
controlled by defendants Vaccari and Fleming.
Deposition Testimony of Naci Uzeyiroglu
15. Naci Uzeyiroglu(hereinafter referred to as "Mr. Uzeyiroglu" or "plaintiff')testified
on August 11, 2016(Exhibit "F"). Mr. Uzeyiroglu was employed by non-party Tebbens Steel at
the time of the accident(p. 62 11. 9-12). His job title was welder and erection (p. 63 11. 2-4). The
foreman on thejob was Recep Kocan(p. 6611. 18-19). Mr. Kocan provided Mr. Uzeyiroglu with all
instructions on the job, including the manner and method of performance (p. 67 11. 4-12).
16. During assembly, Mr. Kocan realized that one ofthe beams was too long(p. 8511. 14-
16). On the day ofthe accident there were no other contractors working(P. 7711.2-5). However,the
group from Tebbens Steel encountered a problem with a column and Mr. Kocan called an
unidentified person to assist with the issue (p. 77 11. 6-16).
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17. The beams and columns used were manufactured by Tebbens Steel workshop(pp. 83-
8411.25-3). Tebbens Steel cuts the steel according to the job plans and numbers them for assembly.
(p. 8411. 7-14).
18. Mr. Kocan directed Mr. Uzeyiroglu to remove the bolts from the beam so the beam
could be taken down (p. 87 11. 14-18). The column is vertical and the beam is horizontal (p. 90 11.
17-23). i~1r. Uzeyiroglu's task was to retn~ve the bolts that cornnect the beam and the column gip. 90-
91 11.24-3). To perform this task, Mr. Uzeyiroglu stood on a closed A-frame ladder that was leaning
on a column (p. 8811. 12-23). Mr. Uzeyiroglu did not ask to use an extension ladder rather than the
closed A-frame ladder(p. 91 11. 14-17). The ladder was leaned against a column with both ofits feet
sitting on plywood (p. 9211. 5-10). No one held that ladder as Mr. Uzeyiroglu went up (p. 9311. 18-
20). Before climbing the ladder Mr. Uzeyiroglu climbed it to make sure that it was solid and
determined that it was solid (p. 9611. 4-8).
19. There were two bolts connecting the column and beam and Mr. Uzeyiroglu removed
one without issue (p. 93 11. 4-7). Mr. Uzeyiroglu used his hand to remove the bolt(p. 93 11. 14-16).
Mr. Uzeyiroglu removed the second bolt and it was in his hand as the ladder began to fall (p. 98 11.
18-20). Immediately after removing the second bolt, the crane began to move the beam(p. 100 13-
17). Mr. Uzeyiroglu saw the column the ladder was leaning against move and then he remembers
moving quickly (p. 103 11. 6-12). He then opened his eyes and realized he had fallen another floor
and was at the bottom ofthe garage (p. 103 11. 19-25). At the time ofthe accident, Mr. Uzeyiroglu
was wearing a hard hat issued by Tebbens, work boots, and work gloves (p. 96-97 11. 18-7).
20. Mr. Uzeyiroglu has not heard ofEdler Estate Care,Inc., he recalls a truck with Edler
insignia visited the jobsite a day or two prior to the accident(p. 18-23). Mr. Uzeyiroglu has never
heard of Jon P. Vaccari or Stephen Fleming (p. 113 11. 10-15). Mr. Uzeyiroglu did not see anyone
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onsite giving directions to workers, other than Mr. Kocan (p. 113 11. 16-19). Additionally, Mr.
Uzeyiroglu did not use any tools on site other than those owned by Tebbens (p. 113 11. 20-24).
21. Plaintiffconfirmed that he never received any instructions, directions or control from
defendants Fleming and Vaccari, who were not present at the jobsite on the date of the accident.
Deposition Testimony of Edler Estate Care, Inc.
22. James Edler testified ~n behalf~f Edler Estate Carc,Inc. oii March 3,2017(Exhibit
"G"). Mr. Edler and his wife own Edler Estate Care, Inc, which is a company that performs
carpentry and general contracting work (p. 811. 11-23). While Mr. Edler testified that his company
did not act as a general contractor on the subject jobsite, he confirmed that the company retained
plaintiffs employer Tebbens Steel to perform steel erection (p. 104 11. 19-24). A copy of the
Tebbens Steel contract is annexed hereto as Exhibit "M".
23. Mr. Edler identified John as the foreman for Tebbens Steel (p3711. 13-15).
24. Mr. Edler estimated that the steel work took place for approximately two weeks (p.
43 11. 12-15). During the two weeks that the steel work was performed, Mr. Edler did not do any
physical work at the jobsite (p. 43 11. 22-24). However, he confirmed that plaintiff was performing
steel work at the time of the accident.
25. Mr. Edler learned about the subject accident when he received a phone call from
John, the Tebbens Steel foreman who had informed him that someone fell on site (p. 45-4611. 18-
4). Immediately thereafter, Mr. Edler went to the jobsite when he learned ofthe accident, but only
observed the presence of an unidentified boss of Tebbens Steel (p. 48-11. 2-25). Mr. Edler learned
that plaintiff had fallen and was removed from the jobsite.
26. With respect to the ongoing work, Edler testified that his company performed
carpentry and site supervision, which involved coordination of the various trades (p. 61 ll. 3-12).
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While Edler Care did not pay any subcontractors or select or retain any subcontractors for this
project, he visited the jobsite daily and was responsible for opening and closing the site daily(p. 108
11. 7-10).
27. Edler Estate also employed several workers on site including carpenters (p. 6911. 7-
9). While Mr. Edler testified that he was only responsible for the safety of his own carpenters at the
jobsite, he confirmed that he selected and coordinated the various trades including Tebbens Stee1(p.
75 Il. 5-9).
28. Mr. Vaccari occasionally visited the jobsite while work was performed(p. 7211. 11-
14). However, Edler confirmed that defendants Vaccari and Fleming were not involved in
construction. Mr. Edler testified that both Mr. Vaccari and Mr. Fleming, who he has known for
several years, intended to and still currently reside in the home that was being constructed at the
time of plaintiffs accident (p. 99 11. 15-20). To Mr. Edler's knowledge, Mr. Vaccari and Mr.
Fleming still reside at the home.(p. 101 11. 3-7).
29. A copy of the various contracts and subcontracts with subcontractors, including
William T. Mahoney Plumbing, Circuit Electric and Jamie Sanchez, which were submitted to Edler
Estate Care, are annexed hereto as Exhibit "N"
Deposition Testimony of Jon P. Vaccari
30. Jon P. Vaccari testified on March 8,2017(Exhibit "H"). Mr.Vaccari co-owns the
home at 26 South Harbor Drive in Sag Harbor with his husband Stephen Fleming (p. 6 11. 18-21).
Annexed hereto as Exhibit "P' is a photograph that Mr. Vaccari confirmed depicted the
construction site of the single family home prior to the accident. On or about September 2, 2014,
Mr. Vaccari hired Jimmy Edler of Edler Estate Care, Inc. to serve as the construction supervisor
and/or general contractor. (p. 10 11. 5-14). Accordingly, Edler Estate Care was identified as the
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contractor listed on the application for the building permit issued by Village of North Haven,
Building Department(p. 16-1711. 12-5). Annexed hereto as Exhibit"J" is a copy ofthe application
for building permit for the subject residence.
31. Mr. Vaccari testified that he lived at 26 South Harbor Drive for approximately three
years prior to the construction and renovation of the home at that location. (p. 5, 11. 2-25).
Specifically,~Ir. v'accari lived there with nis partner and husband, Stephen Fleming, and two small
children. (p. 5., 11. 10-25). Prior to construction, Mr. Vaccari and Mr. Fleming owned the homes
located at 22 South Harbor Drive and 26 South Harbor Drive. (p. 6). The homes were then
demolished for the ongoing construction at 26 South Harbor Drive (p. 6). Mr. Vaccari and Mr.
Fleming purchased 26 South Harbor Drive sometime in 2012.(p. 7). Accordingly, both Mr. Vaccari
and Mr. Fleming resides in the home approximately three years prior to construction.(p. 7, 11. 12-
25).
32. Once construction began, Mr. Edler was at the job site everyday to oversee
construction(p. 31-3211.24- 3). Specifically, Mr. Edler supervised all work atthejobsite(p.41 11.4-
7). Additionally, Mr. Edler conducted job progress meetings every Tuesday which were attended by
Mr. Vaccari, architects, and all other subcontractors working at that time (p. 42-43 11. 24-6) Mr.
Vaccari estimated that he attended some, but not all of the meetings(p. 4411. 16-20).
33. At no time prior to construction did Mr. Vaccari and Mr. Fleming form a corporate
entity to oversee construction (p. 911. 12-16). Due to the small scope ofthisjob, defendants paid all
construction entities directly (p. 4011. 15-22).
34. Defendants were not aware ofany safety violations issued during this project(p. 4611.
12-15). George Butts, a building inspector from the Town ofNorth Haven, occasionally visited the
site to observe the work (p. 46-4711. 16-3). As the construction manager or general contractor, Mr.
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Edler had the authority to stop work on the job site if he observed an unsafe condition (p. 5211. 14-
19).
35. While Mr. Vaccari visited the jobsite occasionally when the steel work was ongoing
by Tebbens, he did not have any conversations with workers from Tebbens Steel prior to the
plaintiffs accident (p. 53 11. 9-12).
36. ~n or following the ~iay of the accident, i~1r. Vaccari learned of the accident when
Mr. Edler called him and told him about it (p.54 11. 18-23). Immediately after hearing about the
accident, Mr. Vaccari drove to the jobsite(p. 5511. 18-23). However,by the time Mr. Vaccari arrived
at the jobsite no one was there and hence he did not witness plaintiffs accident (p. 56 11. 10-12).
C-3 Report
37. As per protocol, plaintiff generated and completed a C-3 report for his accident.
Specifically, the C-3 report provides that plaintiff "fell off a ladder." Plaintiff identifies Reggie as
his supervisor. A copy ofthe C-3 report is annexed hereto as Exhibit "K".Plaintiffreviewed a copy
of the C-3 Report and confirmed that he signed the document shortly following the accident.
(Plaintiff p. 159). Specifically, plaintiffsigned the C-3 Report after he was presented a copy from the
Tebbens Steel secretary who filed the C-3 on his behalf.(Plaintiff p. 160).
Elder Estate Care, Inc. Contract
38. In a contract between contractor Edler Estate Care, Inc. and owner Jon P. Vaccari,
dated September 2, 2014 the following responsibilities are listed under site supervision; day to day
operations ofsite, trade coordination, material delivery and handling,schedule required inspections,
coordination with homeowner on scheduling, material delivery and quality control. The contract also
includes rates far carpentry and site work, but does not have further detail. A copy ofthis contract is
annexed hereto as Exhibit "L". Mr. Edler testified that he signed a copy ofthe Edler Estate Care,
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Inc. contract in or about June of 2014 before it was submitted to Mr. Vaccari.(Edler p. 97, 98). It
was the only contract that was submitted to Mr. Vaccari for the work.
ARGUMENT
39. As discussed in greater detail in the accompanying Memorandum ofLaw,plaintiffs
Labor Law §200 and common law negligence claims should be dismissed because Jon P. Vaccari
and Stephen Fleming dia nit direct the plaintiff ~r c~ntr~l the means and methods of his work, ai~i
not cause or create any dangerous condition, and did not have actual or constructive notice of any
dangerous condition.
40. The plaintiffreceived instructions only from Recep Kocen who worked for Tebbens
Steel. Jon P. Vaccari and Stephen Fleming had no role in directing or controlling the means and
methods of plaintiffs' work.
41. Furthermore, the evidence is clear that the defendants did not exercise any control
over the plaintiffs means and methods of work nor was there a defective condition on the premises
which caused this incident. Specifically, defendants did not supervise plaintiff or provide any tools
or equipment. Additionally, defendants were unaware of any defect of any equipment used by
plaintiff in the subject accident.
42. Consequently, the evidence is clear that this case does not involve a violation of
Labor Law § 200 and there is no evidence to support any potential liability against the defendants
under common law negligence and both these claims should be dismissed as to defendants Jon P.
Vaccari and Stephen Fleming.
43. Further, plaintiffs Labor Law § 240(1) claim is precluded due the homeowners'
exemption. The homeowners'exemption applies to owners ofsingle and two family homes who did
not direct or control the ongoing work. Here,the testimony of Vaccari and Fleming establishes that
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the subject premises was their primary residence and that they did not direct or control the work
being performed. Therefore, it is respectfully argued that plaintiff's claims under Labor Law 240
(1) should be dismissed in their entirety based upon the homeowner's exemption.
44. Here, it is similarly clear that the homeowners' exception is applicable and bars
plaintiffs Labor Law 241(6) claims as against defendants Vaccari and Fleming. Specifically,
defendants Jon P. Vaccari and Stephen Fleming have sufficiently established that they owned the
home that was under construction at the time ofthe accident(Vacarri p. 611. 18-21). Additionally,
the home is a single family home previously and presently occupied by defendants and their infant
children and there is absolutely no evidence in the record that Mr. Vaccari nor Mr. Fleming directed
or controlled the work. Rather, the defendants were mere homeowners who retained co-defendant
Edler to direct, control and supervise all ongoing construction work being performed at their primary
residence.
45. Furthermore, there is no evidence to demonstrate that the defendants violated any
sections ofthe Industrial Code which would warrant a finding of a violation of Labor Law 241(6).
The record submitted herein lacks evidence of any violation by defendants of any sections of the
New York State Labor Law or any sections ofthe Industrial Code as alleged by the plaintiff. Here,
plaintiff cannot prove a violation of Labor Law § 241(6) because plaintiff cannot demonstrate a
violation of an Industrial Code regulation setting forth a specific standard of conduct applicable to
working conditions which existed at the time of the incident. As such, all plaintiff's claims
predicated under Labor Law 241 (6) should be dismissed.
45. Based upon the fact and all the evidence submitted in this matter,along with the legal
precedents set forth in the accompanying memorandum oflaw,the plaintiffis unable to prove a case
against the defendants based upon the theory ofcommon law negligence nor is the plaintiff able to
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prove a case against the defendants based upon any violations ofLabor Law sections 200,240(1)or
241(6) nor any violations of the New York State Industrial Code. Therefore, it is respectfully
submitted that the plaintiffs complaint against the defendants must be dismissed in its entirety since
there is no evidence to support a finding against the defendants for any violations of Labor Law
sections, 200, 240(1) or 241(6), as well as any common-law negligence claims.
V~'HEREFORE,it is respec;tFully submitted that this Court issue an Order (i) pursuant t~
CPLR § 3212 granting summary judgment to JON P. VACCARI and STEPHEN FLEMING
dismissing plaintiffs Labor Law §200 and common law negligence claims;(2)an Order pursuant to
CPLR § 3212 granting summary judgment to JON P. VACCARI and STEPHEN FLEMING
dismissing plaintiffs Labor Law §240;(3) an Order pursuant to CPLR § 3212 granting summary
judgment to JON P. VACCARI and STEPHEN FLEMING dismissing plaintiffs Labor Law
§241(6); and for such other and further relief as this Court may deem to be just and proper.
Dated: New York, New York
October 30, 2017
Yours, etc.
WOOD SMITH HENNING & BERMAN LLP
By: -~`_
William E. Daks
Attorneysfor Defendants
JON P.VACCARI and
STEPHEN FLEMING
685 Third Avenue, 18th Floor
New York, NY 10017
(212)999-7100
File No.: 10318-0111
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TO: THE LAW OFFICES OF EDMOND C. CHAKAMAKIAN,P.C.
Attorneysfor Plaintiffs
NACI UZEYIROGLU and ACELYA UZEYIROGLU
200 Motor Parkway, Suite A3
Hauppauge, NY 11788
(631)232-6600
GORTON &GORTON LLP
Attorneysfor Defendant
EDLER ESTATE CARE INC.
1205 Frankli~~ Avenue, Suite 100
Garden City, NY 11530
(516) 742-8466
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FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------- x NACI UZEYIROGLU and Index No.: 157947/2015 ACELYA UZEYIROGLU, AFFIRMATION IN SUPPORT Plaintiffs, -against- EDLER ESTATE CARE INC., JON P. VACCARI and STEPHEN FLEMING, Defendants. ----------------------------------------------------------------- x WILLIAM DAKS,an attorney duly admitted to practice law before the Courts ofthe State of New York hereby affirms the following to be true under the penalty of perjury: 1. I am a Senior Associate to the law firm of Wood,Smith, Henning,and Berman,LLP, attorneys for defendants, JON P. VACCARI and STEPHEN FLEMING ,and am fully familiar with the facts and circumstances heretofore had herein by virtue of my review ofthe file maintained by my office. 2. I submit this Affirmation in support of defendants' motion seeking an order: (1) pursuant to CPLR § 3212 granting summary judgment to defendants JON P. VACCARI and STEPHEN FLEMING and dismissing plaintiffs Labor Law §200 and common law negligence claims; (2) dismissing plaintiffs Labor Law §240 (1) claim as against defendants Vaccari and Fleming;(3)dismissing plaintiffsLabor Law §241 (6)claims as to defendants Vaccari and Fleming; (4) along with such further relief as this Court deems just and proper. PRELIMINARY STATEMENT 3. This is an action for personal injuries commenced by the plaintiff, Naci Uzeyiroglu, arising out of an alleged incident which occurred on February 27, 2015, at the construction of the LEGAL:10318-0111/8105301.1 3 1 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 Fleming-Vaccari residence, which was located at 22 and 26 S. Harbor Drive, North Haven, New York. Plaintiff was employed bynon-party Tebbens Steel, when he allegedly fell from a ladder and sustained injuries. Thereafter, plaintiffcommenced this action against defendants alleging violations of New York State Labor Laws §§ 200, 240(1), 241(6), along with common law negligence. 4. It is respectfully submitted that the instant motion by defendants JON P. VACCARI ar~d STEPHEN FLEMII~,TG for summary judgment and di~mi~sal of plaintiffs complaint must b~ granted as the evidence establishes that:(1) JON P. VACCARI and STEPHEN FLEMING did not exercise control over the manner, methods and means utilized by the plaintiff to perform his work and did not create any alleged unsafe condition upon which liability can be imposed, pursuant to Labor Law § 200 or common law negligence;(2)the defendants are not proper Labor Law§ 240(1) defendants based upon the homeowners exemption; and (3) the defendants did not violate any sections of the Industrial Code which would support a Labor Law § 241(6)claim and are similarly not proper Labor Law § 241(6) defendants based upon the homeowners exemption. Therefore, plaintiffs complaint must be dismissed as against JON P. VACCARI and STEPHEN FLEMING as a matter of law. RELEVANT PROCEDURAL HISTORY 5. On or about July 30,2015 PlaintiffNaci Uzeyiroglu commenced this action through the filing of a summons and complaint in New York County Supreme Court on or about July 30, 2015. Copies of the pleadings are annexed hereto collectively as Exhibit "A". 6. On or about August 26,2015,Edler Estate Care, Inc. joined issue and interposed an answer to the complaint. A copy ofDefendant's Verified Answer is annexed hereto as Exhibit"B". LEGAL:10318-0111/8105301.1 4 2 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 7. On or about October 19,2015, Jon P. Vaccari and Stephen Fleming joined issue and interposed an answer to the complaint. A copy ofDefendant's Verified Answer is annexed hereto as Exhibit "C". 8. On or about November 19, 2015, plaintiff served a Verified Bill of Particulars, plaintiff alleges that defendants violated Labor Law §§ 200, 240(1) and 241(6), along with a vi~lati~~ of Industrial Cede §§ 23-i.i(b) and 23-i.21. A capy of plaintiffs Verified Bill ~f Particulars is annexed hereto as Exhibit "D" 9. The deposition ofthe plaintiff was conducted on August 11,2016. The deposition of Edler Estate Care's owner, James Edler, was conducted on March 3, 2017. The deposition of defendant, Jon P. Vaccari, was conducted on March 8, 2017. 10. Plaintiffs counsel served the note ofissue and certificate ofreadiness for trial on or about September 27, 2017, a copy of which is annexed hereto as Exhibit "E". 11. This motion is based upon numerous documents exchanged during the course of discovery and the testimony given during the examinations before trial. These documents are annexed hereto and incorporated herein as follows: Exhibit "F" - Deposition transcript of plaintiff, Naci Uzeyiroglu Exhibit "G" - Deposition transcript of defendant, Edler Estate Care, Inc. by James Edler Exhibit"H" - Deposition transcript of defendant ,Jon P. Vaccari and Stephen Fleming, by Jon P. Vaccari Exhibit "I" - Photograph depicting construction site Exhibit "J" - Application for Building Permit Exhibit "K" - Plaintiffs C-3 Report LEGAL:10318-0111/8105301.1 5 3 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 Exhibit "L" - Edler Estate Care, Inc. Contract Exhibit"M" - Tebbens Steel Contract Exhibit "N" - Various Proposals Submitted to Edler Estate FACTUAL BACKGROUND 12. This is an action for personal injuries commenced by the plaintiff, Naci Uzeyiroglu, arising out ofan incident which occurred on February 2i,2015,at the premises iocatec~ at 22 and 26 S. Harbor Drive, North Haven, New York. 13. At the time ofthe incident, the plaintiff was employed by non-party, Tebbens Steel. 14. As discussed in greater detail herein, the plaintiff allegedly fell from a ladder while removing bolts from a beam. At the time of the accident, plaintiffs work was not directed or controlled by defendants Vaccari and Fleming. Deposition Testimony of Naci Uzeyiroglu 15. Naci Uzeyiroglu(hereinafter referred to as "Mr. Uzeyiroglu" or "plaintiff')testified on August 11, 2016(Exhibit "F"). Mr. Uzeyiroglu was employed by non-party Tebbens Steel at the time of the accident(p. 62 11. 9-12). His job title was welder and erection (p. 63 11. 2-4). The foreman on thejob was Recep Kocan(p. 6611. 18-19). Mr. Kocan provided Mr. Uzeyiroglu with all instructions on the job, including the manner and method of performance (p. 67 11. 4-12). 16. During assembly, Mr. Kocan realized that one ofthe beams was too long(p. 8511. 14- 16). On the day ofthe accident there were no other contractors working(P. 7711.2-5). However,the group from Tebbens Steel encountered a problem with a column and Mr. Kocan called an unidentified person to assist with the issue (p. 77 11. 6-16). LEGAL:10318-0111/8105301.1 6 4 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 17. The beams and columns used were manufactured by Tebbens Steel workshop(pp. 83- 8411.25-3). Tebbens Steel cuts the steel according to the job plans and numbers them for assembly. (p. 8411. 7-14). 18. Mr. Kocan directed Mr. Uzeyiroglu to remove the bolts from the beam so the beam could be taken down (p. 87 11. 14-18). The column is vertical and the beam is horizontal (p. 90 11. 17-23). i~1r. Uzeyiroglu's task was to retn~ve the bolts that cornnect the beam and the column gip. 90- 91 11.24-3). To perform this task, Mr. Uzeyiroglu stood on a closed A-frame ladder that was leaning on a column (p. 8811. 12-23). Mr. Uzeyiroglu did not ask to use an extension ladder rather than the closed A-frame ladder(p. 91 11. 14-17). The ladder was leaned against a column with both ofits feet sitting on plywood (p. 9211. 5-10). No one held that ladder as Mr. Uzeyiroglu went up (p. 9311. 18- 20). Before climbing the ladder Mr. Uzeyiroglu climbed it to make sure that it was solid and determined that it was solid (p. 9611. 4-8). 19. There were two bolts connecting the column and beam and Mr. Uzeyiroglu removed one without issue (p. 93 11. 4-7). Mr. Uzeyiroglu used his hand to remove the bolt(p. 93 11. 14-16). Mr. Uzeyiroglu removed the second bolt and it was in his hand as the ladder began to fall (p. 98 11. 18-20). Immediately after removing the second bolt, the crane began to move the beam(p. 100 13- 17). Mr. Uzeyiroglu saw the column the ladder was leaning against move and then he remembers moving quickly (p. 103 11. 6-12). He then opened his eyes and realized he had fallen another floor and was at the bottom ofthe garage (p. 103 11. 19-25). At the time ofthe accident, Mr. Uzeyiroglu was wearing a hard hat issued by Tebbens, work boots, and work gloves (p. 96-97 11. 18-7). 20. Mr. Uzeyiroglu has not heard ofEdler Estate Care,Inc., he recalls a truck with Edler insignia visited the jobsite a day or two prior to the accident(p. 18-23). Mr. Uzeyiroglu has never heard of Jon P. Vaccari or Stephen Fleming (p. 113 11. 10-15). Mr. Uzeyiroglu did not see anyone LEGAL:10318-0111/8105301.1 7 5 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 onsite giving directions to workers, other than Mr. Kocan (p. 113 11. 16-19). Additionally, Mr. Uzeyiroglu did not use any tools on site other than those owned by Tebbens (p. 113 11. 20-24). 21. Plaintiffconfirmed that he never received any instructions, directions or control from defendants Fleming and Vaccari, who were not present at the jobsite on the date of the accident. Deposition Testimony of Edler Estate Care, Inc. 22. James Edler testified ~n behalf~f Edler Estate Carc,Inc. oii March 3,2017(Exhibit "G"). Mr. Edler and his wife own Edler Estate Care, Inc, which is a company that performs carpentry and general contracting work (p. 811. 11-23). While Mr. Edler testified that his company did not act as a general contractor on the subject jobsite, he confirmed that the company retained plaintiffs employer Tebbens Steel to perform steel erection (p. 104 11. 19-24). A copy of the Tebbens Steel contract is annexed hereto as Exhibit "M". 23. Mr. Edler identified John as the foreman for Tebbens Steel (p3711. 13-15). 24. Mr. Edler estimated that the steel work took place for approximately two weeks (p. 43 11. 12-15). During the two weeks that the steel work was performed, Mr. Edler did not do any physical work at the jobsite (p. 43 11. 22-24). However, he confirmed that plaintiff was performing steel work at the time of the accident. 25. Mr. Edler learned about the subject accident when he received a phone call from John, the Tebbens Steel foreman who had informed him that someone fell on site (p. 45-4611. 18- 4). Immediately thereafter, Mr. Edler went to the jobsite when he learned ofthe accident, but only observed the presence of an unidentified boss of Tebbens Steel (p. 48-11. 2-25). Mr. Edler learned that plaintiff had fallen and was removed from the jobsite. 26. With respect to the ongoing work, Edler testified that his company performed carpentry and site supervision, which involved coordination of the various trades (p. 61 ll. 3-12). LEGAL:10318-0111/8105301.1 g 6 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 While Edler Care did not pay any subcontractors or select or retain any subcontractors for this project, he visited the jobsite daily and was responsible for opening and closing the site daily(p. 108 11. 7-10). 27. Edler Estate also employed several workers on site including carpenters (p. 6911. 7- 9). While Mr. Edler testified that he was only responsible for the safety of his own carpenters at the jobsite, he confirmed that he selected and coordinated the various trades including Tebbens Stee1(p. 75 Il. 5-9). 28. Mr. Vaccari occasionally visited the jobsite while work was performed(p. 7211. 11- 14). However, Edler confirmed that defendants Vaccari and Fleming were not involved in construction. Mr. Edler testified that both Mr. Vaccari and Mr. Fleming, who he has known for several years, intended to and still currently reside in the home that was being constructed at the time of plaintiffs accident (p. 99 11. 15-20). To Mr. Edler's knowledge, Mr. Vaccari and Mr. Fleming still reside at the home.(p. 101 11. 3-7). 29. A copy of the various contracts and subcontracts with subcontractors, including William T. Mahoney Plumbing, Circuit Electric and Jamie Sanchez, which were submitted to Edler Estate Care, are annexed hereto as Exhibit "N" Deposition Testimony of Jon P. Vaccari 30. Jon P. Vaccari testified on March 8,2017(Exhibit "H"). Mr.Vaccari co-owns the home at 26 South Harbor Drive in Sag Harbor with his husband Stephen Fleming (p. 6 11. 18-21). Annexed hereto as Exhibit "P' is a photograph that Mr. Vaccari confirmed depicted the construction site of the single family home prior to the accident. On or about September 2, 2014, Mr. Vaccari hired Jimmy Edler of Edler Estate Care, Inc. to serve as the construction supervisor and/or general contractor. (p. 10 11. 5-14). Accordingly, Edler Estate Care was identified as the LEGAL:10318-0111/8105301.1 9 7 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 contractor listed on the application for the building permit issued by Village of North Haven, Building Department(p. 16-1711. 12-5). Annexed hereto as Exhibit"J" is a copy ofthe application for building permit for the subject residence. 31. Mr. Vaccari testified that he lived at 26 South Harbor Drive for approximately three years prior to the construction and renovation of the home at that location. (p. 5, 11. 2-25). Specifically,~Ir. v'accari lived there with nis partner and husband, Stephen Fleming, and two small children. (p. 5., 11. 10-25). Prior to construction, Mr. Vaccari and Mr. Fleming owned the homes located at 22 South Harbor Drive and 26 South Harbor Drive. (p. 6). The homes were then demolished for the ongoing construction at 26 South Harbor Drive (p. 6). Mr. Vaccari and Mr. Fleming purchased 26 South Harbor Drive sometime in 2012.(p. 7). Accordingly, both Mr. Vaccari and Mr. Fleming resides in the home approximately three years prior to construction.(p. 7, 11. 12- 25). 32. Once construction began, Mr. Edler was at the job site everyday to oversee construction(p. 31-3211.24- 3). Specifically, Mr. Edler supervised all work atthejobsite(p.41 11.4- 7). Additionally, Mr. Edler conducted job progress meetings every Tuesday which were attended by Mr. Vaccari, architects, and all other subcontractors working at that time (p. 42-43 11. 24-6) Mr. Vaccari estimated that he attended some, but not all of the meetings(p. 4411. 16-20). 33. At no time prior to construction did Mr. Vaccari and Mr. Fleming form a corporate entity to oversee construction (p. 911. 12-16). Due to the small scope ofthisjob, defendants paid all construction entities directly (p. 4011. 15-22). 34. Defendants were not aware ofany safety violations issued during this project(p. 4611. 12-15). George Butts, a building inspector from the Town ofNorth Haven, occasionally visited the site to observe the work (p. 46-4711. 16-3). As the construction manager or general contractor, Mr. LEGAL:10318-0111/8105301.1 1~ 8 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 Edler had the authority to stop work on the job site if he observed an unsafe condition (p. 5211. 14- 19). 35. While Mr. Vaccari visited the jobsite occasionally when the steel work was ongoing by Tebbens, he did not have any conversations with workers from Tebbens Steel prior to the plaintiffs accident (p. 53 11. 9-12). 36. ~n or following the ~iay of the accident, i~1r. Vaccari learned of the accident when Mr. Edler called him and told him about it (p.54 11. 18-23). Immediately after hearing about the accident, Mr. Vaccari drove to the jobsite(p. 5511. 18-23). However,by the time Mr. Vaccari arrived at the jobsite no one was there and hence he did not witness plaintiffs accident (p. 56 11. 10-12). C-3 Report 37. As per protocol, plaintiff generated and completed a C-3 report for his accident. Specifically, the C-3 report provides that plaintiff "fell off a ladder." Plaintiff identifies Reggie as his supervisor. A copy ofthe C-3 report is annexed hereto as Exhibit "K".Plaintiffreviewed a copy of the C-3 Report and confirmed that he signed the document shortly following the accident. (Plaintiff p. 159). Specifically, plaintiffsigned the C-3 Report after he was presented a copy from the Tebbens Steel secretary who filed the C-3 on his behalf.(Plaintiff p. 160). Elder Estate Care, Inc. Contract 38. In a contract between contractor Edler Estate Care, Inc. and owner Jon P. Vaccari, dated September 2, 2014 the following responsibilities are listed under site supervision; day to day operations ofsite, trade coordination, material delivery and handling,schedule required inspections, coordination with homeowner on scheduling, material delivery and quality control. The contract also includes rates far carpentry and site work, but does not have further detail. A copy ofthis contract is annexed hereto as Exhibit "L". Mr. Edler testified that he signed a copy ofthe Edler Estate Care, LEGAL:10318-0111/8105301.1 11 9 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 Inc. contract in or about June of 2014 before it was submitted to Mr. Vaccari.(Edler p. 97, 98). It was the only contract that was submitted to Mr. Vaccari for the work. ARGUMENT 39. As discussed in greater detail in the accompanying Memorandum ofLaw,plaintiffs Labor Law §200 and common law negligence claims should be dismissed because Jon P. Vaccari and Stephen Fleming dia nit direct the plaintiff ~r c~ntr~l the means and methods of his work, ai~i not cause or create any dangerous condition, and did not have actual or constructive notice of any dangerous condition. 40. The plaintiffreceived instructions only from Recep Kocen who worked for Tebbens Steel. Jon P. Vaccari and Stephen Fleming had no role in directing or controlling the means and methods of plaintiffs' work. 41. Furthermore, the evidence is clear that the defendants did not exercise any control over the plaintiffs means and methods of work nor was there a defective condition on the premises which caused this incident. Specifically, defendants did not supervise plaintiff or provide any tools or equipment. Additionally, defendants were unaware of any defect of any equipment used by plaintiff in the subject accident. 42. Consequently, the evidence is clear that this case does not involve a violation of Labor Law § 200 and there is no evidence to support any potential liability against the defendants under common law negligence and both these claims should be dismissed as to defendants Jon P. Vaccari and Stephen Fleming. 43. Further, plaintiffs Labor Law § 240(1) claim is precluded due the homeowners' exemption. The homeowners'exemption applies to owners ofsingle and two family homes who did not direct or control the ongoing work. Here,the testimony of Vaccari and Fleming establishes that LEGAL:10318-0111/8105301.1 IZ 10 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 the subject premises was their primary residence and that they did not direct or control the work being performed. Therefore, it is respectfully argued that plaintiff's claims under Labor Law 240 (1) should be dismissed in their entirety based upon the homeowner's exemption. 44. Here, it is similarly clear that the homeowners' exception is applicable and bars plaintiffs Labor Law 241(6) claims as against defendants Vaccari and Fleming. Specifically, defendants Jon P. Vaccari and Stephen Fleming have sufficiently established that they owned the home that was under construction at the time ofthe accident(Vacarri p. 611. 18-21). Additionally, the home is a single family home previously and presently occupied by defendants and their infant children and there is absolutely no evidence in the record that Mr. Vaccari nor Mr. Fleming directed or controlled the work. Rather, the defendants were mere homeowners who retained co-defendant Edler to direct, control and supervise all ongoing construction work being performed at their primary residence. 45. Furthermore, there is no evidence to demonstrate that the defendants violated any sections ofthe Industrial Code which would warrant a finding of a violation of Labor Law 241(6). The record submitted herein lacks evidence of any violation by defendants of any sections of the New York State Labor Law or any sections ofthe Industrial Code as alleged by the plaintiff. Here, plaintiff cannot prove a violation of Labor Law § 241(6) because plaintiff cannot demonstrate a violation of an Industrial Code regulation setting forth a specific standard of conduct applicable to working conditions which existed at the time of the incident. As such, all plaintiff's claims predicated under Labor Law 241 (6) should be dismissed. 45. Based upon the fact and all the evidence submitted in this matter,along with the legal precedents set forth in the accompanying memorandum oflaw,the plaintiffis unable to prove a case against the defendants based upon the theory ofcommon law negligence nor is the plaintiff able to LEGAL:10318-0111/8105301.1 13 11 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 prove a case against the defendants based upon any violations ofLabor Law sections 200,240(1)or 241(6) nor any violations of the New York State Industrial Code. Therefore, it is respectfully submitted that the plaintiffs complaint against the defendants must be dismissed in its entirety since there is no evidence to support a finding against the defendants for any violations of Labor Law sections, 200, 240(1) or 241(6), as well as any common-law negligence claims. V~'HEREFORE,it is respec;tFully submitted that this Court issue an Order (i) pursuant t~ CPLR § 3212 granting summary judgment to JON P. VACCARI and STEPHEN FLEMING dismissing plaintiffs Labor Law §200 and common law negligence claims;(2)an Order pursuant to CPLR § 3212 granting summary judgment to JON P. VACCARI and STEPHEN FLEMING dismissing plaintiffs Labor Law §240;(3) an Order pursuant to CPLR § 3212 granting summary judgment to JON P. VACCARI and STEPHEN FLEMING dismissing plaintiffs Labor Law §241(6); and for such other and further relief as this Court may deem to be just and proper. Dated: New York, New York October 30, 2017 Yours, etc. WOOD SMITH HENNING & BERMAN LLP By: -~`_ William E. Daks Attorneysfor Defendants JON P.VACCARI and STEPHEN FLEMING 685 Third Avenue, 18th Floor New York, NY 10017 (212)999-7100 File No.: 10318-0111 LEGAL:10318-0111/8105301.1 14 12 of 13 FILED: NEW YORK COUNTY CLERK 10/30/2017 05:15 PM INDEX NO. 157947/2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/30/2017 TO: THE LAW OFFICES OF EDMOND C. CHAKAMAKIAN,P.C. Attorneysfor Plaintiffs NACI UZEYIROGLU and ACELYA UZEYIROGLU 200 Motor Parkway, Suite A3 Hauppauge, NY 11788 (631)232-6600 GORTON &GORTON LLP Attorneysfor Defendant EDLER ESTATE CARE INC. 1205 Frankli~~ Avenue, Suite 100 Garden City, NY 11530 (516) 742-8466 LEGAL:10318-0111/8105301.1 15 13 of 13