Utica Mutual Insurance v. Style Management Associates Corp.

In a subrogation action to recover benefits paid by the plaintiff under a policy of insurance, the defendants Style Management Associates Corp., Style Management Corp., and Yosi Sason, also known as Yosef Sason, appeal from an order of the Supreme Court, Nassau County (Sher, J.), entered December 13, 2012, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed, on the law, with costs, and the motion of the defendants Style Management Associates Corp., Style Management Corp., and Yosi Sason, also known as Yosef Sason, for summary judgment dismissing the complaint insofar as asserted against them is granted.

On June 23 and 24, 2009, two fires occurred in a single-family residence that was undergoing renovations, which was owned by Harris Berenson and E. lyier Berenson (hereinafter together the Berensons). The Berensons’ residence was insured under an insurance policy issued by the plaintiff Utica Mutual Insurance Company (hereinafter Utica). After Utica paid the Berensons’ claim for the damage to their property resulting from the fires, it commenced this subrogation action against the individuals and entities allegedly involved in the renovation project, the defendants Style Management Associates Corp., Style Management Corp., and Yosi Sason, also known as Yosef Sason (hereinafter collectively the Style defendants), Zak Baruch and AA Fine Home Builder, Inc. (hereinafter together the Baruch defendants), Sergei “Brooklyn,” and Mosco Flooring Company. The complaint alleged, in pertinent part, that the Style defendants were the general contractor on the renovation project, and that the defendants’ collective negligence caused the fires that damaged the property.

The Style defendants moved for summary judgment dismissing the complaint insofar as asserted against them, contending that they were not the general contractor for the renovation project, and that their involvement with the renovation project was limited to obtaining the building permit on behalf of the Baruch defendants, who were actually the general contractor, *760and, at most, performing a few days of minor carpentry work at the beginning of the renovation project. Utica opposed the motion, arguing that the fact that Style Management Corp. was named on the building permit as the contractor, and the fact that the Baruch defendants paid Sason $9,000 at the beginning of the renovation project, raised a triable issue of fact as to whether the Style defendants were the general contractor. The Supreme Court denied the motion. The Style defendants appeal, and we reverse.

The Style defendants established, prima facie, that they were not the general contractor on the Berensons’ renovation project through the submission of evidence showing that they did not undertake general contractor duties such as supervising, hiring, or paying contractors (see Feltt v Owens, 247 AD2d 689, 691 [1998]). The evidence submitted in support of the Style defendants’ motion demonstrated, prima facie, that the Berensons hired the Baruch defendants as the general contractor on the project, and that the Baruch defendants undertook general contractor duties by coordinating and supervising the project, and hiring and paying subcontractors (see Aversano v JWH Contr., LLC, 37 AD3d 745, 746 [2007]). The evidence demonstrated that the only function the Style defendants performed in connection with the renovation project was obtaining the work permit and, at most, performing some minor carpentry and molding work at the beginning of the project (see Martinez v 408-410 Greenwich St., LLC, 83 AD3d 674, 675 [2011]).

In opposition, Utica failed to raise a triable issue of fact. The fact that the building permit for the renovation project named Style Management Corp. as the contractor, and the deposition testimony that the Baruch defendants paid a sum of money to the Style defendants for the use of the name Style Management Corp. on the permit, is insufficient to raise a triable issue of fact as to whether the Style defendants were the general contractor for the project, in the absence of evidence that the Style defendants acted as the general contractor by, for example, hiring, supervising, or paying subcontractors (see Martinez v 408-410 Greenwich St., LLC, 83 AD3d at 674; Kilmetis v Creative Pool & Spa, Inc., 74 AD3d 1289, 1291 [2010]; Huerta v Three Star Constr. Co., Inc., 56 AD3d 613 [2008]).

As our dissenting colleague points out, our conclusion in this regard is based on Labor Law personal injury cases, which hold that the mere listing of an entity as the contractor on a work permit, without more, is insufficient to raise a triable issue of fact as to whether that entity is the general contractor *761on a particular project (see Martinez v 408-410 Greenwich St., LLC, 83 AD3d at 674; Kilmetis v Creative Pool & Spa, Inc., 74 AD3d at 1291; Huerta v Three Star Constr. Co., Inc., 56 AD3d at 613). However, contrary to our dissenting colleague’s position, the rule enunciated in these Labor Law cases, which is based on the basic definition of a general contractor as one who, for instance, coordinates and supervises the work and hires and pays subcontractors (see Huerta v Three Star Constr. Co., Inc., 56 AD3d at 613; Aversano v JWH Contr., LLC, 37 AD3d at 746; Feltt v Owens, 247 AD2d at 690-691), applies equally to this subrogation action. To ignore our Labor Law precedent in this action would, in effect, create a different definition of a general contractor in the subrogation/property damage context, one that would confer general contractor status on an entity simply by virtue of it being listed as the contractor on a work permit. There is no persuasive reason for having two separate definitions of a general contractor, one for the Labor Law/personal injury context and another for the subrogation/ property damage context, as our dissenting colleague suggests. Moreover, there is arguably more incentive to hold an entity liable as a general contractor in the Labor Law/personal injury context than in a subrogation action such as this, where the owners of the damaged property have been made whole and the insurance company may still seek to recover from the party who actually undertook the role of the general contractor.

In addition, there is no legal authority for our dissenting colleague’s assertion that the Style defendants owed a duty of care to the Berensons to safeguard the work site simply by virtue of Style Management Corp. being listed as the contractor on the work permit. Here, the evidence shows that the Baruch defendants, not the Style defendants, were hired as the general contractor for the project and actually undertook the duties of a general contractor, and, thus, the Baruch defendants owed a duty of care to the Berensons. Furthermore, there is no evidence that the Style defendants caused the fires or were responsible for supervising the work that led to the fires. Under these circumstances, while we are mindful of our dissenting colleague’s policy concerns, in the absence of evidence that the Style defendants undertook the duties of general contractor, the Style defendants cannot be held liable as a general contractor (see Martinez v 408-410 Greenwich St., LLC, 83 AD3d 674 [2011]; Kilmetis v Creative Pool & Spa, Inc., 74 AD3d at 1291; Huerta v Three Star Constr. Co., Inc., 56 AD3d at 613; cf. Kosovrasti v Epic [217] LLC, 96 AD3d 695, 696 [2012]).

Utica’s remaining contentions are without merit.

*762Accordingly, the Style defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them should have been granted. Dillon, J.P., Chambers and Hall, JJ., concur.