| Zamora v Frantellizzi |
| 2007 NY Slip Op 08448 [45 AD3d 580] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Pedro Zamora, Respondent-Appellant, v Janine Frantellizziet al., Appellants-Respondents. |
—[*1] Davidson & Cohen, P.C., Rockville Centre, N.Y. (Bruce E. Cohen of counsel), forrespondent-appellant.
In an action to recover damages for personal injuries, the defendants, Janine Frantellizzi andAnthony Frantellizzi, appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Nelson, J.), dated December 11, 2006, as denied that branch of theirmotion which was for summary judgment dismissing the complaint insofar as asserted againstthe defendant Anthony Frantellizzi, and the plaintiff cross-appeals from so much of the sameorder as denied his cross motion for summary judgment on the issue of liability on his cause ofaction based upon Labor Law § 240 (1).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The plaintiff, who was employed by a masonry subcontractor in connection with theconstruction of the defendants' single-family residence, was injured when he fell from anunsecured ladder. He subsequently commenced this action against the defendants assertingcauses of action alleging common-law negligence and violations of Labor Law §§200, 240 (1), and § 241 (6).
The Supreme Court properly denied those branches of the defendants' motion which were forsummary judgment dismissing the causes of action based upon Labor Law § 240 (1) and§ 241 (6) insofar as asserted against the defendant Anthony Frantellizzi (hereinafterAnthony) and in [*2]denying the plaintiff's cross motion forsummary judgment against both defendants on the issue of liability on his cause of action basedupon Labor Law § 240 (1). Owners and contractors are subject to liability pursuant toLabor Law § 240 (1) and § 241 (6), except owners of one- and two-family dwellingswho contract for but do not direct or control the work. The exception was enacted to protectthose who, lacking in business sophistication, would not know or anticipate the need to obtaininsurance to cover them against liability (see Miller v Shah, 3 AD3d 521, 522 [2004]; see also VanAmerogen v Donnini, 78 NY2d 880, 882 [1991]). We agree with the Supreme Court thatthere is an issue of fact as to whether Anthony exercised the requisite degree of direction andcontrol over the construction of his home to impose liability under Labor Law § 240 (1)and § 241 (6) (see Acosta vHadjigavriel, 18 AD3d 406, 406-407 [2005]; Rothman v Shaljian, 278 AD2d297, 298 [2000]; Holocek v Nowak Constr. Co., 259 AD2d 466, 467 [1999]). Further,the Supreme Court properly concluded that the defendant Janine Frantellizzi was entitled to thehomeowners' exemption (see Garcia v Petrakis, 306 AD2d 315 [2003]).
Since there is a triable issue of fact as to whether Anthony exercised direction or control overthe work, the Supreme Court also properly denied that branch of the defendants' motion whichwas for summary judgment dismissing the common-law negligence and Labor Law § 200causes of action insofar as asserted against Anthony (see Acosta v Hadjigavriel, 18 AD3d 406 [2005]). Spolzino, J.P.,Santucci, Balkin and Dickerson, JJ., concur.