| Paez v Shah |
| 2010 NY Slip Op 07909 [78 AD3d 673] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Eric Paez, Respondent, v Hemal Shah, Appellant, et al.,Defendant. |
—[*1] Brian P. Neary, P.C., Huntington, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Hemal Shah appeals, as limitedby his brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), datedDecember 18, 2008, as denied his motion for summary judgment dismissing the complaint insofar asasserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motionof the defendant Hemal Shah for summary judgment dismissing the complaint insofar as asserted againsthim is granted.
In July 2005 the defendant Hemal Shah (hereinafter the defendant) purchased certain premises andhired a contractor to perform renovations. The contractor employed the plaintiff and provided him withan electric saw from which the contractor had removed the safety guard. The plaintiff sustained injuriesand commenced an action against the defendant and another person.
The defendant moved for summary judgment dismissing the complaint insofar as asserted againsthim. The complaint set forth two causes of action. One cause of action was based on an allegedviolation of Labor Law § 241 (6), and the other alleged common-law negligence based on thefailure to provide a safe workplace and equipment.
The defendant established his prima facie entitlement to judgment as a matter of law dismissing theLabor Law § 241 (6) cause of action insofar as asserted against him, based on the homeowner'sexemption for owners of one- and two-family dwellings, by showing that the premises were improvedby a two-family dwelling, and that he neither directed nor controlled the plaintiff's work (seeLabor Law § 241 [6]; Chowdhuryv Rodriguez, 57 AD3d 121 [2008]; Cardace v Fanuzzi, 2 AD3d 557 [2003]; Sheehan v Gong, 2 AD3d 166 [2003];Garcia v Petrakis, 306 AD2d 315 [2003]; Small v Gutleber, 299 AD2d 536, 537[2002]).
The common-law negligence cause of action seeking damages for failure to provide a safeworkplace and equipment was based on a similar theory of negligent exercise of the authority tosupervise [*2]or control the workplace (see Shaw v RPA Assoc., LLC, 75 AD3d634 [2010]; Piedra v Matos, 40AD3d 610 [2007]). The defendant established his prima facie entitlement to judgment as a matterof law dismissing that cause of action by demonstrating that the accident arose from the means andmethods of the work, and that he did not have authority to supervise or control the work (see Ortega v Puccia, 57 AD3d 54,61-62, 62 n 2 [2008]).
In opposition, the plaintiff failed to submit evidence in admissible form sufficient to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint insofar as asserted against him. Santucci, J.P., Balkin, Leventhal andAustin, JJ., concur.