| Rodriguez v Gany |
| 2011 NY Slip Op 01822 [82 AD3d 863] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Julio Rodriguez, Respondent, v Hope Margulies Gany etal., Appellants, et al., Defendant. (And a Third-Party Action.) |
—[*1] Gess Gess & Scanlon, P.C., New York, N.Y. (David Owens of counsel), for respondent. Bruce Somerstein & Associates. P.C., New York, N.Y. (Donald J. Kavanagh of counsel), fordefendant Woodstar Contracting Corp.
In an action to recover damages for personal injuries, the defendants Hope Margulies Ganyand Victor Gany appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Saitta, J.), dated February 2, 2010, as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them. Justice Balkin has beensubstituted for the late Justice Fisher (see 22 NYCRR 670.1 [c]).
Ordered that the order is affirmed insofar as appealed from, with costs to the respondent.
The defendants Hope Margulies Gany and Victor Gany (hereinafter the Ganys) own a homein Great Neck, Nassau County, where they live with their two children. Victor Gany is thepresident of a company that does work in sheet metal and duct installation. He has also served onthe boards of directors of two trade employers associations. In 2000, the Ganys decided torenovate their house by adding a great room and a room over the garage. The Ganys hired thedefendant Woodstar Contracting Corp. (hereinafter Woodstar) as a contractor for the project.Woodstar hired the subcontractors for the project, except for the roofing subcontractor and theheating, ventilation, and air-conditioning (hereinafter HVAC) subcontractor. Victor Gany choseto hire those subcontractors himself because he knew people in the business. Victor hired thethird-party defendant Martin Associates, Inc., which subcontracted the HVAC work to nonpartyDynamic Air Conditioning (hereinafter Dynamic). Dynamic employed the plaintiff, JulioRodriguez.
The complaint alleged that the Ganys directed and supervised the work. In this regard, theplaintiff testified at his deposition that he had helped his coworker several times to move someduct work because Victor Gany had told the coworker to move it. The plaintiff was installingduct work in the great [*2]room on February 20, 2002, using a20-foot ladder to move the duct material from the ground to a second-floor landing. He had justplaced the material on the landing and had begun to descend the ladder, when the laddercollapsed, causing him to fall and allegedly sustain injuries to his leg. This action ensued.
The Ganys moved for summary judgment dismissing the complaint insofar as assertedagainst them, on the grounds that they did not supervise or control the plaintiff's work, and thatthey were entitled to the homeowner's exemption to the Labor Law. In the order appealed from,the Supreme Court, inter alia, denied the Ganys' motion, holding that there was a triable issue offact regarding whether the Ganys supervised or controlled the plaintiff's work. We affirm theorder insofar as appealed from.
The Supreme Court properly denied those branches of the Ganys' motion which were forsummary judgment dismissing the causes of action based upon Labor Law § 240 (1) and§ 241 (6) insofar as asserted against them. Both Labor Law § 240 (1) and §241 (6) contain language exempting "owners of one and two-family dwellings who contract forbut do not direct or control the work" (Labor Law § 240 [1]; § 241 [6]; Chowdhury v Rodriguez, 57 AD3d121, 126 [2008] [internal quotation marks omitted]). In order to receive the benefit of thishomeowner's exemption, a defendant must demonstrate: (1) that the work was performed at aone- or two-family dwelling, and (2) that they did not direct or control the work (seeChowdhury v Rodriguez, 57 AD3d at 126). "The exception was enacted to protect thosewho, lacking business sophistication, would not know or anticipate the need to obtain insuranceto cover them against absolute liability" (Acosta v Hadjigavriel, 18 AD3d 406, 406 [2005]). While theGanys demonstrated their prima facie entitlement to judgment as a matter of law dismissing thecauses of action based upon Labor Law § 240 (1) and § 241 (6) insofar as assertedagainst them, in opposition the plaintiff raised a triable issue of fact regarding whether the Ganysdirected or controlled the plaintiff's work (see Acosta v Hadjigavriel, 18 AD3d at406-407; see also Zamora vFrantellizzi, 45 AD3d 580, 581 [2007]; Rothman v Shaljian, 278 AD2d 297,297-298 [2000]; Holocek v Nowak Constr. Co., 259 AD2d 466 [1999]; see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Further, for an owner to be held liable pursuant to Labor Law § 200 in a case such asthis where the claim arises out of the methods or means of the work, a plaintiff must show thatthe owner supervised or controlled the work (see Ortega v Puccia, 57 AD3d 54 [2008]). Since there is a triableissue of fact as to whether the Ganys supervised or controlled the plaintiff's work, the SupremeCourt properly denied that branch of their motion which was for summary judgment dismissingthe cause of action alleging the violation of Labor Law § 200 insofar as asserted againstthem (see Acosta v Hadjigavriel, 18 AD3d at 407). For the same reasons, the SupremeCourt properly denied that branch of the Ganys' motion which was for summary judgmentdismissing the cause of action alleging common-law negligence insofar as asserted against them(see Ortega v Puccia, 57 AD3d54 [2008]).
The Ganys' remaining contentions are without merit. Mastro, J.P., Balkin, Leventhal andBelen, JJ., concur.