| Rosenblatt v Wagman |
| 2008 NY Slip Op 09330 [56 AD3d 1103] |
| November 26, 2008 |
| Appellate Division, Third Department |
| Paul B. Rosenblatt et al., Appellants-Respondents, v TerryWagman, Respondent-Appellant, and James M. Wagman et al.,Respondents. |
—[*1] Flink Smith, L.L.C., Latham (Jennifer D. Lecakes of counsel), for respondent-appellant. Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, L.L.P., Hudson (Victor M. Meyers ofcounsel), for respondents.
Kane, J. Cross appeals from an order of the Supreme Court (Teresi, J.), entered August 7,2007 in Greene County, which partially granted defendants' motions for summary judgmentdismissing the complaint.
Defendant Terry Wagman (hereinafter defendant) hired plaintiff Paul B. Rosenblatt(hereinafter plaintiff) to sandblast, prime and paint the wrought iron railings on her home.Defendants James M. Wagman and Joanne Z. Wagman, defendant's son and daughter-in-law,own the property and defendant retains a life tenancy. According to plaintiff, defendantcomplained that the bucket truck that plaintiff was using damaged her lawn and she insisted thathe use a ladder instead. All parties deny ownership of the ladder, which was aluminum and didnot have nonskid feet. While plaintiff was on the ladder painting railings on the second story,[*2]the ladder slipped on the concrete and stone patio, propellingplaintiff and the ladder to the ground. Plaintiff sustained injuries as a result.
Plaintiff and his wife, derivatively, commenced this action alleging negligence and violationsof Labor Law §§ 240 and 241 and Real Property Law § 235-b. In their bill ofparticulars, they also alleged a claim under Labor Law § 200. Defendants moved andcross-moved for summary judgment dismissing the complaint. Supreme Court partially grantedthe motions by dismissing the claims under Labor Law §§ 240 and 241 and RealProperty Law § 235-b, but denied the motions as to the negligence and Labor Law §200 claims. Plaintiffs appeal[FN*] and defendant cross-appeals.
Supreme Court properly dismissed plaintiffs' Labor Law §§ 240 and 241 claims.Those statutes specifically exempt "owners of one and two-family dwellings who contract for butdo not direct or control the work" (Labor Law § 240 [1]; § 241 [6]). The phrase"direct or control" must be strictly construed (see Lieberth v Walden, 223 AD2d 978, 979[1996]; see also Van Amerogen v Donnini, 78 NY2d 880, 882 [1991]); the owner mustsignificantly participate in the project "before he or she will be deemed to have crossed the linefrom being a legitimately concerned homeowner to a de facto supervisor" (Lieberth vWalden, 223 AD2d at 979; see Douglas v Beckstein, 210 AD2d 680, 681-682[1994]). Merely explaining the work to be done, prohibiting activities that destroyed her lawnand providing a ladder—without directing plaintiff how to use the ladder—wereinsufficient acts to transform defendant into a supervisor or director of plaintiff's work (seeFacteau v Allen, 293 AD2d 847, 847-848 [2002]; Kammerer v Baskewicz, 257AD2d 811, 811-812 [1999]; Douglas v Beckstein, 210 AD2d at 682; Stephens vTucker, 184 AD2d 828, 829 [1992]). Thus, defendants fell within the homeowner'sexemption, requiring dismissal of plaintiffs' claims under Labor Law §§ 240 and241.
Defendants were also entitled to summary judgment dismissing plaintiffs' negligence andLabor Law § 200 claims. An owner's duty to provide a safe work site does not impose arequirement "to protect a worker from defects, risks or damages that are readily observable by thereasonable use of the senses, taking into account the age, intelligence and experience of theworker" (Gavigan v Bunkoff Gen. Contrs., 247 AD2d 750, 751 [1998], lv denied92 NY2d 804 [1998]; see Gasper v Ford Motor Co., 13 NY2d 104, 110 [1963];Stephens v Tucker, 184 AD2d at 829-830). Plaintiff's deposition testimony establishedhis awareness that the railing upon which he rested the ladder was wobbly and that the ladder didnot have rubber feet, which would help prevent slipping. He also testified that he was not worriedabout either of these conditions. He had ascended and descended the ladder at least once, thenmoved it and ascended it again before he fell. After he fell, he replaced the ladder against therailing in an attempt to finish the job, but his injuries prevented him from ascending it.Considering plaintiff's acknowledged awareness of the allegedly dangerous or defectiveconditions and his own actions in placing the ladder, as well as his 25 years of experienceowning a painting business, defendants cannot be held liable in negligence or under Labor Law§ 200 (see D'Egidio v Frontier Ins. Co., 270 AD2d 763, 764 [2000], lvdenied 95 NY2d 765 [2000]).[*3]
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur.Ordered that the order is modified, on the law, without costs, by reversing so much thereof aspartially denied defendants' motions for summary judgment; motions granted in their entirety andcomplaint dismissed; and, as so modified, affirmed.
Footnote *: Plaintiffs make no specificarguments in their brief regarding the dismissal of the Real Property Law § 235-b cause ofaction and, thus, this issue is deemed abandoned (see Kirk v Outokumpu Am. Brass, Inc., 33 AD3d 1136, 1137 n[2006]).