| Ryba v Almeida |
| 2007 NY Slip Op 07681 [44 AD3d 740] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Artur Ryba, Appellant, v Joaquim Almeida et al.,Defendants and Third-Party Plaintiffs-Respondents, et al., Defendants. East Coast Stucco &Construction, Inc., Third-Party Defendant-Respondent. |
—[*1] DeCicco, Gibbons & McNamara, P.C., New York, N.Y. (Daniel J. McNamara of counsel),for defendants third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Rockland County (Weiner, J.), dated April 6, 2006, as grantedthat branch of the motion of the defendants Joaquim Almeida and Maria Almeida which was forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion of the defendants Joaquim Almeida and Maria Almeida which was forsummary judgment dismissing the complaint insofar as asserted against them is denied, thoseprovisions of the order which denied, as academic, that branch of the motion of the defendantsJoaquim Almeida and Maria Almeida which was for conditional common-law indemnificationagainst the third-party defendant, denied, as academic, the cross motion of the third-partydefendant to dismiss the third-party complaint, and dismissed, as academic, the cross claim bythe defendant Maria Almeida, are vacated, and the matter is remitted to the Supreme Court,Rockland County, for a determination on the merits of that branch of the motion of thedefendants Joaquim Almeida and Maria Almeida which was for conditional common-lawindemnification against the third-party defendant.[*2]
The Supreme Court erred in granting summary judgmentdismissing the causes of action predicated on Labor Law § 240 (1) and § 241 (6)asserted against the defendants Joaquim Almeida and Maria Almeida (hereinafter thedefendants). The defendants, who owned several construction and real estate developmentbusinesses, including the business that poured the foundation for the subject construction project,failed to establish, prima facie, that, as a matter of law, they did not direct or control theplaintiff's work and therefore fell within the scope of the homeowner's exception to the LaborLaw's absolute liability provisions (see Labor Law §§ 240, 241; Boccio v Bozik, 41 AD3d 754[2007]; Acosta v Hadjigavriel, 18AD3d 406 [2005]; Holocek v Nowak Constr. Co., 259 AD2d 466 [1999]; cf.Reilly v Loreco Constr., 284 AD2d 384 [2001]; Lang v Havlicek, 272 AD2d 298[2000]).
Similarly, the defendants failed to establish, prima facie, that they exercised no supervisorycontrol over the methods and materials used by the plaintiff in his work (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). Thus, the Supreme Court alsoerred in granting summary judgment dismissing the plaintiff's claim predicated on Labor Law§ 200.
In light of our determination, we remit the matter to the Supreme Court, Rockland County,for a determination on the merits of that branch of the defendants' motion which was forconditional common-law indemnification against the third-party defendant. Schmidt, J.P.,Goldstein, Skelos and Fisher, JJ., concur.