| Pascarell v Klubenspies |
| 2008 NY Slip Op 09373 [56 AD3d 742] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Christopher Pascarell, Appellant, v Marilyn Klubenspies,Respondent. |
—[*1] Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Robert Gironda ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Rockland County (Nelson, J.), dated January 30, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
An owner of a one- or two-family dwelling is exempt from liability under Labor Law§§ 240 and 241 unless he or she directed or controlled the work being performed(see Roach v Hernandez, 38 AD3d 743, 744 [2007]; Ramirez v Begum, 35 AD3d578 [2006]; Small v Gutleber, 299 AD2d 536, 537 [2002]). The phrase "direct orcontrol" as used in those statutes "is construed strictly and refers to the situation where the ownersupervises the method and manner of the work" (McGlone v Johnson, 27 AD3d 702, 702[2006] [internal quotation marks omitted]; see Siconolfi v Crisci, 11 AD3d 600, 601[2004]; Garcia v Petrakis, 306 AD2d 315, 316 [2003]). Contrary to the plaintiff'scontention, the defendant made a prima facie showing that she was entitled to the protection ofthe homeowner's exemption by submitting evidence demonstrating that she did not exercisesupervision and control over the manner and method of the work being performed by the plaintiff(see McGlone v Johnson, 27 AD3d 702 [2006]; Siconolfi v Crisci, 11 AD3d 600,601 [2004]; Garcia v Petrakis, 306 AD2d 315, [*2]316[2003]; Putnam v Karaco Indus. Corp., 253 AD2d 457, 459 [1998]). The evidencesubmitted by the plaintiff in opposition to the motion was insufficient to raise a triable issue offact. Accordingly, the Supreme Court properly granted that branch of the defendant's motionwhich was for summary judgment dismissing the causes of action alleging violations of LaborLaw § 240 (1) and § 241 (6).
Furthermore, the court also properly granted that branch of the defendant's motion which wasfor summary judgment dismissing the causes of action alleging a violation of Labor Law §200 and common-law negligence. The defendant made a prima facie showing that she wasentitled to dismissal of these causes of action by demonstrating that she did not have actual orconstructive notice of the allegedly unsafe premises condition which caused the accident (seeChowdhury v Rodriguez, 57 AD3d 121 [2008];Azad v 270 5th Realty Corp., 46 AD3d 728, 730 [2007]; Keating v Nanuet Bd. ofEduc., 40 AD3d 706, 708 [2007]). In opposition, the plaintiffs failed to raise a triable issueof fact. Spolzino, J.P., Santucci, Eng and Leventhal, JJ., concur.