| Gittins v Barbaria Constr. Corp. |
| 2010 NY Slip Op 04740 [74 AD3d 744] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Ryan Gittins, Respondent, v Barbaria Construction Corp.et al., Respondents, and Danny Levy, Appellant. |
—[*1] Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y. (Glen Devora of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Danny Levy appealsfrom an order of the Supreme Court, Kings County (Balter, J.), dated June 10, 2009, whichdenied his motion for summary judgment dismissing the complaint and all cross claims insofaras asserted against him.
Ordered that the order is reversed, on the law, with one bill of costs, and the motion of thedefendant Danny Levy for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against him is granted.
The plaintiff allegedly was injured in the course of his employment as a carpenter at thehome of the defendant Danny Levy (hereinafter the homeowner). The plaintiff was performingframing work on the third floor of the structure, which did not yet have walls, and was standing afew feet from the edge of the building. He was operating an electrical saw that was attached to anextension cord that ran outside the frame of the house and was plugged into an outlet on the firstfloor. When he attempted to pull on the extension cord, he lost his balance and tripped on anunidentified object on the floor, causing him to fall out of the building onto a fence three storiesbelow. The plaintiff testified at his deposition that the homeowner occasionally visited the worksite prior to the accident, but never spoke with the plaintiff or directed the manner of his work.
The plaintiff thereafter commenced this action, asserting that the homeowner was liable forcommon-law negligence and violations of Labor Law §§ 200, 240 (1) and §241 (6). The homeowner moved for summary judgment dismissing the complaint and all crossclaims insofar as asserted against him, which the Supreme Court denied. We reverse.
To receive the protection of the homeowners' exemption under Labor Law § 240 (1)and § 241 (6), a homeowner must show the work was performed at a one- or two-familydwelling and that the defendant did not direct or control the plaintiff's work (see LaborLaw § 240 [1]; § 241 [6];Chowdhury v Rodriguez, 57 AD3d 121, 126-127 [2008]).[*2]
Here, the homeowner established his prima facieentitlement to judgment as a matter of law dismissing the causes of action alleging violations ofLabor Law § 240 (1) and § 241 (6) by submitting, inter alia, the parties' depositiontranscripts. The homeowner's testimony showed that the work was being performed on aone-family dwelling and that he did not direct or control the plaintiff's work. The plaintifftestified that he never met the homeowner prior to the accident and that the homeowner nevergave him directions as to how he should perform his work. Thus, the homeowner established,prima facie, that he was not liable under those statutes. The plaintiff did not offer any evidencein opposition, but instead, relied on his own deposition testimony that he would sometimes seethe homeowner talking to his supervisors. This was insufficient to raise a triable issue of fact asto whether the homeowner exercised supervision or control over the plaintiff's work (seeChowdhury v Rodriguez, 57 AD3d at 126-127; see also Winegrad v New York Univ.Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557[1980]).
Finally, the homeowner was entitled to summary judgment dismissing the causes of actionalleging a violation of Labor Law § 200 and common-law negligence insofar as assertedagainst him (see Ortega v Puccia,57 AD3d 54, 62-63 [2008]; Aramav Fruchter, 39 AD3d 678, 679 [2007]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 850-851[2006]).
Accordingly, the homeowner's motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against him should have been granted. Skelos, J.P., Covello,Hall and Sgroi, JJ., concur.