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President's Message

As the New Year 2007 begins, not only will the members be kept
informed of the year’s events and meeting notices but also of major
issues that affect all the professions in our association.

First, here are the events you need to be aware of. Our 2nd Annual Home & Garden Show begins February 16th thru February 18th at “The Summit.” Our annual Golf day is confirmed for July 9th at the Niagara Frontier Country Club. Mark your calendar and include this fun day event in your budget.

The following are issues affecting our members and their families. Recently, in one of the communities, the powers-that-be established a moratorium stopping all construction in the Town of Wheatfield for three weeks. Even though the developer had site plan approval and building permits, because
of the nature of the project the Supervisor declared a moratorium to appease some concerned
taxpayers. Because issues like this affect all of our professions, our goal is to list all the web pages available for all communities in Niagara County & the schedules for their Planning Board meetings, public hearings, etc. in our upcoming newsletters, so we as an association can represent ourselves at the meeting to express our concerns in a timely manner. These web pages will also be on our
own association web page (www.ncbuilders.com). Everyone should stay alert. If there is an important issue that you as a member feel the other members should know about, contact the NCBA office ASAP so other members can be contacted. My goal as your President is to protect our association and all of its members and to make sure we are well represented at all times.

On another note, Governor Spitzer’s “State of the State Address” referred to the Workers'
Compensation issue, promising to lower employer premiums and increase employee benefits. If this happens, it should bring some resolution to the Labor Law and the archaic Section 240-241. This should be a very key issue this year for all employers. Keep calling all the State Assemblypersons & Senators that are listed in this newsletter. To everyone, have a great spring, successful summer and a profitable, busy year.

Legislative News

LABOR LAW

(This article is a continuation of case reports from NYSBA’s “Legal Defense Fund.” Dates indicate when decisions were handed down by the courts.)

November 1, 2006

Gulino v. New York State Thruway Authority— 2006 WL 3358405 (N.Y. Ct. Cl.)

Claimant was part of a crew installing 100 feet of new guardrail on Interstate 95 in Bronx County. Claimant’s employer, United Fence, was a subcontractor of Liddell Brothers, Inc. which had entered into a contract with the Thruway Authority. Claimant was injured when he stepped off the back of a slow moving work truck and stepped on a piece of concrete causing him to fall to the ground. Claimant’s claim is based on Labor Law §§240 and 241(6). The court dismissed the claim under §240 because §240 was inapplicable to the circumstances of the case. Labor Law §241(6) creates a non-delegable duty on the part of the owner of a construction site to provide “reasonable and adequate protection and safety” for workers. In order to succeed under §241(6), claimant must provide an applicable provision of the Industrial Code. Claimant claimed a violation of Rule 23-1.7(e) entitled “Tripping and other hazards.” The court examined paragraph 2 of the rule regarding
working areas, which is applicable only if can be shown that the debris on which claimant
tripped was not “created by himself and his coworkers, which was an integral part of the work being performed.” On the factual record, the court concluded that there is a question of fact whether the location where claimant fell is a working area within the meaning of the Rule. Accordingly, the court denied defendant’s motion except the portion that sought to dismiss the claim under §240 which was granted.

November 2, 2006

Kinirons v. Teachers Insurance and Annuity Association of America—2006 WL 3094053
(A.D. 1 Dept.)

Plaintiff tripped over tools belonging to an electrician who was mounting conduit on a machine
room wall. Plaintiff described the tools as being placed just to the right of the electrician. The court held that the Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint because the tools “were positioned for and ‘consistent with’ the work being performed and were not ‘scattered’ within the meaning of the Industrial Code (12 NYCRR) §23-1.7(e)(2).” Plaintiff also tried to rely on §23-1.7(e)(1) but failed because plaintiff was not injured in a “passageway.”

Perez v. Glick—2006 N.Y. Misc. LEXIS 3301 (N.Y. Sup., Nassau County)

Plaintiff was injured when he fell on a concrete floor while using a six foot ladder trying to paint
a seven foot high ceiling in defendant’s home. Plaintiff brought causes of action under Labor Law §§240 and 241(6) alleging that the floor was uneven with holes in it and that he does not know
what caused the ladder to move. Labor Law §240 covers workers who are painting and who must
be supplied with necessary safety devices unless the exemption for one and two family dwellings
applies or that a resident owner did not direct or control the work being performed. Here, the court
held that defendant did not direct or control the work being performed by plaintiff. Furthermore,
§240(1) is only valid if the worker was exposed to a significant gravity related risk caused by a
height differential which is contemplated in the statute. Additionally, the risk must not be one of
which is a usual and ordinary danger of a work site. The court dismissed plaintiff’s cause of action
under Labor Law §240(1) because the allegations were based upon the conditions of the floor
and not the condition of the ladder. Plaintiff’s cause of action under §241(6) was also dismissed
because defendant did not direct or control the work being performed by plaintiff.

November 8, 2006

Cavanagh v. Mega Contracting, Inc.—2006 WL 3237350 (A.D. 2 Dept.)

Plaintiff worker was injured when he fell from the first floor to the basement of a building undergoing renovation. Plaintiff worker submitted evidence that the first floor collapsed because
the subfloor was not properly braced and he was not given any safety devices which would help to
prevent or break his fall. The court affirmed the lower court’s order granting plaintiffs’ motion for
summary judgment on the issue of liability on the cause of action based on a violation of Labor
Law §240(1) and denied the cross motion of defendants for summary judgment dismissing the
cause of action. Plaintiffs established their prima facie entitlement to summary judgment on the
issue of liability and defendants failed to raise a triable issue of fact.

November 14, 2006

Duarte v. City of New York—2006 WL 3307358 (A.D. 2 Dept.)

Defendant City was sued for damages for personal injuries by a worker employed by a contractor
on the job. Supreme Court denied defendant City’s motion for summary judgment dismissing all causes of action and plaintiff withdrew all claims except those under Labor Law §241. Defendant City established its prima facie entitlement to summary judgment by producing evidence that the NYS Department of Transportation was in charge of the project and that the City did not perform any of the work, merely exercising supervisory authority in the nature of issuing permits. In the absence of any evidence by plaintiffs to raise a triable issue of fact, defendant City was entitled to summary judgment dismissing the claims under Labor Law §241.

November 16, 2006

Downey v. Local 46 2nd Holding Company— 2006 WL 3314636 (A.D. 1 Dept.)

Plaintiff brought a motion for partial summary judgment as to liability under Labor Law §240.
Plaintiff’s motion was denied because recovery under the absolute liability provisions of Labor
Law §240(1) require a showing that the plaintiff “was hired by someone, be it owner, contractor,
or their agent.” Here, questions of fact as to plaintiff’s employment status preclude summary
disposition.

November 21, 2006

Gonzalez v. Pon Lin Realty Corp.—2006 WL 3378378 (A.D. 2 Dept.)

Plaintiff was injured while working on a construction project at a five-story building owned by defendant Pon Lin. Plaintiff was descending from the fifth floor with a bag of cement when he fell through the staircase between the fifth and fourth floors and landed on the second floor. Plaintiff brought a cause of action based on Labor Law §241(6) alleging a violation of 12 NYCRR 23- 1.7(f) of the Industrial Code which states “stairways, ramps or runways shall be provided as the means of access to working levels above or below ground.” The court held that the Supreme Court erred in granting defendant Pon Lin’s motion for summary judgment dismissing the cause of action because it failed to establish that the Industrial Code provision was inapplicable to the facts of the case. Defendant Pon Lin did establish that it had no supervision or control over plaintiff so summary judgment should have been granted on the causes of action for statutory and common law negligence. Likewise, the causes of action against defendant architect were properly dismissed in the absence of any evidence that the architect directed or controlled the work and in light of specific liability exemptions for architects in Labor Law §§ 240(1) and 241(9).

Dubin v. DiFazio and Sons Construction, Inc.—2006 WL 3378406 (A.D. 2 Dept.)

Plaintiff, an inspector for the New York City Department of Design and Construction, was injured when he tripped at the worksite. Plaintiff brought a cause of action based on Labor Law §241(6), which covers inspection work in certain situations. Plaintiff was a “covered” person under
Labor Law §241(6) because his inspection was essential, ongoing, and more than mere observation.
However, defendants’ motion for summary judgment dismissing the cause of action was granted because defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that Industrial Code regulations 12 NYCRR 23-1.7(e)(1) and (2) were inapplicable because the object that plaintiff tripped over was an integral part of the work being performed. Furthermore, plaintiff failed to raise a triable issue of fact.

Know Your Representatives 

Welcome New Members

We would like to welcome the following new NCBA members:

We would also like to Welcome New Board Member Joe Paolini of Paolini Enterprises Inc.
Joe will fill the one year remaining on Lisa Norman’s Directorship.

News Tidbits

Congratulations to Skip Mazenauer, our State Director, who was recently named President
of the Lower Niagara River Region Chamber of Commerce. The chamber handles marketing
and public relations for activities and events in the communities of Lewiston, Youngstown,
Ransomville, and Sanborn.

Happy Birthday, NCBA!

Did you know? The Niagara County Builders Association—originally named the Niagara
Home Builders Association—was chartered by the National Association of Home Builders of
the United States on January 16, 1945 and became an official builders’ organization. Happy 62nd
birthday!!!

NCBA Installs Officers At Annual Holiday Party

The Niagara County Builders Association held its annual holiday party December 13, 2006, at Suzanne’s Fine Dining, 2843 Niagara Falls Blvd., Wheatfield. Following a festive hospitality hour and holiday dinner, the association members and their guests participated in NCBA’s 5th Annual Holiday Basket Auction. A portion of the proceeds went towards assisting several families from the Niagara Falls Air Force Base.

A highlight of the evening was the installation of officers and members of the board of directors for 2007. The officers installed were: Lawrence J. Quigliano II—President, Robert Minkiewicz—First Vice President, William Burg—Second Vice President, John R. Ennis— Treasurer, Carl Capolupo —Secretary, William Burg—National Director, Skip Mazenauer— State Director, and Stanley Swogier III—Remodelers Council Chair

The following directors were elected for two years: Sylvester Barone (Sil Barone Homes), Thomas DiMatteo (GT Custom Built Homes), James Mordeno (Mordeno Construction Co.), and Donna
Tisdale (Countrywide Home Loans Inc.). The following directors have one year remaining: Gary DiMatteo (Rosal Construction Co., Inc.), Scott Cottrell (MIG Building Systems), James Kuryak (Niagara National Insurance Co.), and Joe Paolini (Paolini Enterprises) who replaced former director Lisa Norman.

Among the events and activities scheduled for 2007 is the NCBA’s annual Home & Garden Show, February 16, 17, and 18, at The Summit in Wheatfield. Exhibitors and vendors are still being
sought for this year’s show. Last year’s 3-day event—the first Home & Garden Show held in
seven years—was well attended and generated a lot of traffic for the mall’s stores as well. All
40 of the participating exhibitors and vendors were tremendously pleased by the number of
inquiries they had and leads they received. For more information regarding the show, call the
NCBA office at 693-5736 or visit their website at www.ncbuilders.com.