| Szczepanski v Dandrea Constr. Corp. |
| 2011 NY Slip Op 08929 [90 AD3d 642] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Jeffrey Szczepanski, Respondent, v Dandrea ConstructionCorp., Defendant, Nicholas Liberatoscioli, Appellant, and Lusitano Enterprises, Inc.,Defendant/Third-Party Plaintiff-Respondent. Big C Construction, Inc., Third-PartyDefendant-Appellant. |
—[*1]
Braverman & Associates, P.C., New York, N.Y. (Steven R. Goldstein of counsel), forthird-party defendant-appellant. Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for plaintiff-respondent. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Nicholas M. Brino and Diane K. Farrell ofcounsel), for defendant/third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Nicholas Liberatoscioliappeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County(Cohalan, J.), dated August 27, 2010, as denied his motion for summary judgment dismissing thecomplaint insofar as asserted against him, and the third-party defendant separately appeals, aslimited by its brief, from so much of the same order as denied those branches of its motion whichwere for summary judgment dismissing the third-party causes of action for contribution andcommon-law indemnification.
Ordered that the order is affirmed insofar as appealed from by the defendant NicholasLiberatoscioli; and it is further,
Ordered that the order is reversed insofar as appealed from by the third-party defendant, onthe law, and those branches of the motion of the third-party defendant which were for summaryjudgment dismissing the third-party causes of action for contribution and common-lawindemnification are granted; and it is further,
Ordered that one bill of costs is awarded to the third-party defendant, payable by thedefendant/third-party plaintiff, and one bill of costs is awarded to the plaintiff, payable by thedefendant Nicholas Liberatoscioli.[*2]
The plaintiff alleged that, on July 23, 2004, he wasperforming construction work at a property owned by the defendant Nicholas Liberatoscioli, andwas injured when he fell from a beam. Liberatoscioli is the sole owner of thedefendant/third-party plaintiff, Lusitano Enterprises, Inc. (hereinafter Lusitano), the generalcontractor on the job. The plaintiff allegedly was employed by the third-party defendant, Big CConstruction, Inc. (hereinafter Big C).
The Supreme Court properly denied that branch of Liberatoscioli's motion which was forsummary judgment dismissing the causes of action alleging violations of Labor Law § 240(1) and § 241 (6) insofar as asserted against him. "Labor Law § 240 (1) and §241 (6) contain identical language exempting from the statutes owners of one and two-familydwellings who contract for but do not direct or control the work" (Chowdhury v Rodriguez, 57 AD3d121, 126 [2008] [internal quotation marks omitted]). 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 the defendant did not direct or control the work(id. at 126). "The exception was enacted to protect those who, lacking businesssophistication, would not know or anticipate the need to obtain insurance to cover them againstabsolute liability" (Acosta vHadjigavriel, 18 AD3d 406, 406 [2005]). Here, Liberatoscioli failed to establish hisprima facie entitlement to judgment as a matter of law, as there is a triable issue of fact as towhether he exercised the requisite degree of direction and control over the construction of hishome to impose liability under Labor Law § 240 (1) and § 241 (6) (see Acosta vHadjigavriel, 18 AD3d at 407; Rothman v Shaljian, 278 AD2d 297 [2000]; cf.Krukowski v Steffensen, 194 AD2d 179 [1993]).
Further, to be held liable pursuant to Labor Law § 200 in a case such as this, where theclaim arises out of the methods or means of the work, a defendant must have authority tosupervise or control the work (seeRodriguez v Gany, 82 AD3d 863, 865 [2011]; Rojas v Schwartz, 74 AD3d 1046 [2010]; Ortega v Puccia, 57 AD3d 54[2008]). Here, Liberatoscioli failed to establish his prima facie entitlement to judgment as amatter of law, as there is a triable issue of fact as to whether he had the authority to supervise orcontrol the plaintiff's work. Accordingly, the Supreme Court properly denied that branch ofLiberatoscioli's motion which was for summary judgment dismissing the cause of action alleginga violation of Labor Law § 200 insofar as asserted against him (see Acosta vHadjigavriel, 18 AD3d at 407). For the same reasons, the Supreme Court properly deniedthat branch of Liberatoscioli's motion which was for summary judgment dismissing the cause ofaction alleging common-law negligence insofar as asserted against him (see Rodriguez vGany, 82 AD3d at 863; Ortega v Puccia, 57 AD3d at 63).
In support of its motion for summary judgment, inter alia, dismissing the third-party causesof action for contribution and common-law indemnification, Big C met its burden ofdemonstrating that the plaintiff's injuries did not constitute a "grave injury" within the meaning ofWorkers' Compensation Law § 11 (see Kitkas v Windsor Place Corp., 72 AD3d 649, 649-650 [2010];Marshall v Arias, 12 AD3d423, 423-424 [2004]; Aguirre v Castle Am. Constr., 307 AD2d 901 [2003]). Inopposition, Lusitano failed to raise a triable issue of fact as to whether the plaintiff sustained aqualifying grave injury (see Kitkas v Windsor Place Corp., 72 AD3d at 649; Goodleaf v Tzivos Hashem, Inc., 68AD3d 817 [2009]; Aguirre v Castle Am. Constr., 307 AD2d at 901). Accordingly,the Supreme Court should have granted those branches of Big C's motion which were forsummary judgment dismissing the third-party causes of action for contribution and common-lawindemnification. Rivera, J.P., Leventhal, Belen and Roman, JJ., concur. [Prior Case History:2010 NY Slip Op 32475(U).]