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Budz v. Paragon Restoration Corp.

November 10, 2009

ANDRIY BUDZ, MYKHAYLO PROTAS AND STANISLAW JANOCHA A/K/A PIOTR SZKLANKO, PLAINTIFFS-APPELLANTS,
v.
PARAGON RESTORATION CORP., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
ANTE MARKOTA, EUROPEAN COPPER SPECIALISTS, INC., THIRD-PARTY DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, L-4186-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 13, 2009

Before Judges Reisner, Yannotti and Chambers.

Plaintiffs Andriy Budz, Mykhaylo Protas and Stanislaw Janocha appeal from an October 20, 2008 order granting summary judgment dismissing their personal injury complaint against Paragon Restoration Corp. We affirm.

I.

Our review of the trial court's grant of summary judgment is de novo, employing the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We consider whether the undisputed material facts, viewed in the light most favorable to the non-moving party, entitle the moving party to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We conclude that this case was ripe for summary judgment, and based on the undisputed material facts, summary judgment was properly granted.

II.

The facts, as we summarize them here, are set forth in defendant's statement of material facts on the summary judgment motion. In their opposition to the motion, plaintiffs did not dispute those facts pursuant to Rule 4:46-2(b). Therefore the facts are deemed undisputed for purposes of the motion and our review on this appeal. Ibid.

Paragon was the general contractor on a 2004 project to repair a historic church in Somerville. Paragon in turn contracted with an independent sub-contractor, Schtiller & Plevy (Plevy), to replace the church roof. Plevy, a company in the roofing business since 1920, hired Ante Markota to supervise the roofing work because of his many years of experience. Markota, who had worked in the roofing field since 1962, owned his own company, European Copper Specialists, Inc., which specialized in restoring historic structures. However, for purposes of this job, he was working as an employee of Plevy.

As a Plevy supervisor, Markota hired plaintiffs, was on the job site "'ninety-five percent' of the time," and directed the manner in which plaintiffs performed their work. Neither Markota nor plaintiffs were employed by Paragon. As part of its contract with Paragon, Plevy agreed to enforce safety rules on the job.

While working on the job, plaintiffs fell from the roof, a drop of approximately ten feet, and were injured. According to plaintiffs and Markota, he directed them to work on the roof without using safety harnesses, because he believed they were unnecessary.*fn1 It is undisputed that Markota controlled plaintiffs' work and no one from Paragon knew that plaintiffs were working without safety harnesses. Markota admitted that he was responsible for ensuring the safety of the Plevy employees on the job. According to Markota, whose testimony was unrebutted on this point, no one from Paragon had authority to instruct plaintiffs on safety; that was Markota's responsibility. Further, because plaintiffs did not speak English, Markota, who spoke their language, was the only person on the job who could give them directions.

At the time of the accident, no Paragon employees were on the roof. Although Paragon's superintendent for this job, James Marshie, was on the job site at the time of the accident, he was elsewhere on the site and did not observe plaintiffs working on the roof. Nor did Marshie observe whether the plaintiffs were using safety equipment. According to Marshie, each subcontractor was responsible for its own safety equipment and the safety of its employees. There was no Occupational Safety & Health Act (OSHA) investigation of the accident and no OSHA violation notices were issued to any entity working on the job.

Relying on Alloway v. Bradlees, Inc., 157 N.J. 221, 233 (1999), Judge Cifelli reasoned that the foregoing facts required summary judgment in favor of Paragon because Paragon did not owe a duty to the plaintiffs as a matter of law. Citing Alloway, the judge concluded, "Paragon owed no duty to the plaintiffs and further, to impose any such duty upon Paragon under the facts of ...


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