| Bucklaew v Walters |
| 2010 NY Slip Op 06048 [75 AD3d 1140] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| William Bucklaew, Respondent-Appellant, and John Higgins,Respondent, v Scott L. Walters et al., Appellants-Respondents. |
—[*1] Viola, Cummings & Lindsay, LLP, Niagara Falls (Michael J. Skoney of counsel), forplaintiff-respondent-appellant. Law Offices of Mark D. Grossman, Niagara Falls (Mark D. Grossman of counsel), forplaintiff-respondent.
Appeal and cross appeal from an order of the Supreme Court, Niagara County (Richard C.Kloch, Sr., A.J.), entered November 17, 2008 in a personal injury action. The order granted inpart and denied in part the motion of defendants to dismiss the complaints.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydismissing the complaints in their entirety against defendant Lori Miller and by denying that partof the motion for summary judgment dismissing the Labor Law § 200 cause of actionasserted by plaintiff William Bucklaew against defendant Scott L. Walters and reinstating thatcause of action against that defendant and as modified the order is affirmed without costs.
Memorandum: Plaintiffs each commenced Labor Law and common-law negligence actionsthat were thereafter consolidated, seeking damages for injuries they allegedly sustained when,only minutes apart, each fell from a ladder and "pick" assembly while installing siding at atwo-family residence jointly owned by defendants, where defendants reside. We note at theoutset that the cross appeal taken by plaintiff John Higgins has been deemed abandoned anddismissed by his failure to perfect it in a timely fashion (see 22 NYCRR 1000.12 [b]; Hayek v Hayek, 63 AD3d 1598,1599 [2009]). We therefore do not address his cross appeal. We further note that counsel forplaintiffs stated at oral argument they do not wish to pursue their claims against defendant LoriMiller. We thus dismiss the complaints in their entirety against her, and we modify the orderaccordingly.
Contrary to the initial contention of defendants, Supreme Court did not err in considering thepapers submitted by William Bucklaew (plaintiff) in opposition to defendants' motion becausethey were not timely served. Courts have "discretion to overlook late service where thenonmoving party sustains no prejudice" (Matter of Jordan v City of New York, 38 AD3d 336, 338 [2007]).Here, plaintiff's opposing papers contained no [*2]evidentiarymaterial and instead contained only legal arguments, and we conclude that Scott L. Walters(defendant) was not prejudiced by the late service.
Addressing first the merits of plaintiff's cross appeal, we conclude that the court properlygranted those parts of the motion of defendants for summary judgment dismissing plaintiff'scauses of action under Labor Law § 240 (1) and § 241 (6) against defendant.Contrary to plaintiff's contention, the exemption from liability afforded to owners of one- andtwo-family dwellings under those sections applies to defendant and the unrefuted evidencedemonstrates that he did not direct or control the " 'method and manner in which the work [was]performed' " (Gambee v Dunford, 270 AD2d 809, 810 [2000]). Defendant did notinstruct plaintiff how to perform the work, and defendant did not provide the necessaryequipment, tools and materials to perform the work. The mere fact that defendant occasionallypointed out areas where the work was not completed properly does not subject him to liabilityunder those sections of the Labor Law. Such interest in the quality of the work "does notconstitute the kind of direction or control necessary to overcome the homeowner's exemptionfrom liability" (Chowdhury vRodriguez, 57 AD3d 121, 127 [2008]; see Warsaw v Eastern Rock Prods., 210AD2d 883 [1994], lv dismissed 85 NY2d 967 [1995]). Moreover, the fact that defendantperformed some work unrelated to that performed by plaintiffs does not deprive him of thebenefits of the homeowner's exemption (see Lang v Havlicek, 272 AD2d 298 [2000]; see also Luthringer v Luthringer, 59AD3d 1028 [2009]).
We further conclude with respect to plaintiff's cross appeal that the court erred in grantingthat part of defendants' motion for summary judgment dismissing the Labor Law § 200cause of action asserted by plaintiff against defendant. We therefore further modify the orderaccordingly. With respect to the appeal taken by defendants, however, we conclude that the courtproperly denied that part of defendants' motion for summary judgment dismissing thecommon-law negligence causes of action against defendant, asserted by both plaintiffs. By theirown submissions in support of their motion both with respect to Labor Law § 200 andcommon-law negligence, defendants raised an issue of fact whether defendant created adangerous condition on the property by digging a trench in the area where one of the ladders onwhich plaintiffs were working had to be placed. Based on the deposition testimony of plaintiff,there is an issue of fact whether the accident occurred as a result of that ladder kicking out, andthere is a further issue of fact whether the act of defendant in digging the hole was a proximatecause of the ladder kicking out. Furthermore, there is an issue of fact whether any negligence byplaintiff contributed to the accident, or was a superseding cause thereof. "As a general rule,issues of proximate cause are for the trier of fact" (Standard Fire Ins. Co. v New Horizons Yacht Harbor, Inc., 63 AD3d1542, 1543 [2009]; see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308,315 [1980], rearg denied 52 NY2d 784, 829 [1980]; Gerfin v North Colonie Cent. School Dist., 41 AD3d 1085,1086-1087 [2007]). Present—Scudder, P.J., Peradotto, Carni, Lindley and Sconiers, JJ.