| Castellanos v United Cerebral Palsy Assn. of Greater Suffolk,Inc. |
| 2010 NY Slip Op 07714 [77 AD3d 879] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Mario Castellanos, Appellant, v United Cerebral PalsyAssociation of Greater Suffolk, Inc., Respondent. |
—[*1] Gorton & Gorton, LLP, Mineola, N.Y. (John T. Gorton of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Feinman, J.), dated June 12, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that he was injured when he fell off a defective ladder while working fora construction company that was hired to renovate a house owned by the defendant, UnitedCerebral Palsy Association of Greater Suffolk, Inc. The plaintiff commenced this action allegingcommon-law negligence and violations of Labor Law §§ 200, 240 (1) and §241 (6). The defendant moved for summary judgment dismissing the complaint on the groundsthat it did not direct, control, or supervise the work and that it was exempt from the provisions ofLabor Law § 240 (1) and § 241 (6) as the owner of a one- or two-family dwelling.The Supreme Court granted the motion. We affirm.
The homeowner's exemption to liability under Labor Law § 240 (1) and § 241(6) is available to "owners of one and two-family dwellings who contract for but do not direct orcontrol the work" (Labor Law § 240 [1]; § 241 [6]; see Parnell v Mareddy, 69 AD3d915 [2010]). Courts have considered several factors in determining whether a homeowner isentitled to the exemption, including the nature and purpose of the work and the commercialversus residential use of the property (see Bartoo v Buell, 87 NY2d 362 [1996]; VanAmerogen v Donnini, 78 NY2d 880 [1991]; Cannon v Putnam, 76 NY2d 644[1990]).
Here, the defendant demonstrated its entitlement to judgment as a matter of law with respectto the homeowner's exemption under Labor Law § 240 (1) and § 241 (6). Thedefendant established that it did not direct or control the work, that the building was asingle-family dwelling used solely as a residence for six disabled individuals who lived togetherand functioned as a family unit (see Mental Hygiene Law § 41.34 [f]), and that thehome was not an income-producing property, as any commercial benefit the nonprofit defendantmay have obtained from Medicare, Medicaid, or Social Security was ancillary to the residentialpurpose of the home (see Bartoo v Buell, 87 NY2d 362 [1996]; Uddin v Three Bros. Constr. Corp., 33AD3d 691 [2006]; Muniz v Church of Our Lady of Mt. Carmel, [*2]238 AD2d 101 [1997]).
Moreover, the defendant established that it did not exercise supervision or control over thework performed at the work site (seeOrtega v Puccia, 57 AD3d 54, 63 [2008]). The attendance of an employee of thedefendant at biweekly site meetings to check on the progress of the work did not rise to the levelof supervision or control necessary to establish common-law negligence or to impose liabilityunder Labor Law § 200.
In response to the defendant's prima facie showing of entitlement to judgment as a matter oflaw, the plaintiff failed to raise a triable issue of fact (see Uddin v Three Bros. Constr. Corp., 33 AD3d 691 [2006]).Accordingly, the Supreme Court properly granted the defendant's motion for summary judgmentdismissing the complaint. Rivera, J.P., Angiolillo, Chambers and Austin, JJ., concur. [PriorCase History: 24 Misc 3d 1216(A), 2009 NY Slip Op 51469(U).]