| Morocho v Marino Enters. Contr. Corp. |
| 2009 NY Slip Op 06318 [65 AD3d 675] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Jose Telmo Morocho, Appellant, v Marino EnterprisesContracting Corp. et al., Defendants, and Luigia Ricci, Respondent. |
—[*1] Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao and Vinai C. Vinlander ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Bellantoni, J.), entered June 17, 2008, which grantedthe motion of the defendant Luigia Ricci for summary judgment dismissing the complaint insofaras asserted against her.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured while working on a kitchen renovation project at aone-family home owned by the defendant Luigia Ricci, when a power saw he was using to cut akitchen cabinet recoiled and struck him in the head and face. The plaintiff's employer, thedefendant Santo Marino, lived in the home with Ricci's daughter and supervised the renovationproject. After the Supreme Court entered a default judgment against Marino and his contractingcompanies, Ricci moved for summary judgment dismissing the complaint insofar as assertedagainst her.
Owners of one- and two-family dwellings who do not direct or control the work beingperformed are statutorily exempt from liability under Labor Law § 241 (6) (see Bartoov Buell, 87 NY2d 362, 367 [1996]; Cannon v Putnam, 76 NY2d 644 [1990]; Chowdhury v Rodriguez, 57 AD3d121, 126 [2008]). Ricci made a prima facie showing that she was entitled to the protectionof the homeowner's exemption by submitting evidence demonstrating that she neither directednor controlled the work being performed (see Reilly v Loreco Constr., 284 AD2d 384[2001]; Slettene v Ginsburg, 257 AD2d 656 [1999]; Jenkins v Jones, 255 AD2d805 [1998]; Lane v Karian, 210 AD2d 549 [1994]). In opposition, the plaintiff failed toraise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).Contrary to the plaintiff's contention, the fact that Ricci's daughter lived in the home and paid themortgage and taxes on the property did not cause Ricci to lose the protection of the exemption,as the arrangement served no commercial purpose (see Thompson v Geniesse, 62 AD3d 541 [2009]; cf. Lombardiv Stout, 80 NY2d 290 [1992]; Van Amerogen v Donnini, 78 NY2d 880, 882[1991]). Additionally, the renovations, which included the installation of a new kitchen floor andrefrigerator, were directly related to the daughter's residential use of the home (see Bartoo vBuell, 87 NY2d at 368; Umanzor vCharles [*2]Hofer Painting & Wallpapering, Inc., 48 AD3d552 [2008]; Ramirez v Begum,35 AD3d 578 [2006]).
Furthermore, since the accident arose from the means and methods of the plaintiff's work,and Ricci did not exercise any supervision or control over the work (see Slettene vGinsburg, 257 AD2d 656 [1999]; Jenkins v Jones, 255 AD2d 805 [1998]), she wasnot liable under the common law or Labor Law § 200 for failure to provide a reasonablysafe place to work (see Lombardi v Stout, 80 NY2d at 294-295; Small vGutleber, 299 AD2d 536 [2002]). Mastro, J.P., Dickerson, Eng and Hall, JJ., concur.