| Serrano v Popovic |
| 2012 NY Slip Op 00199 [91 AD3d 626] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Sonia Areli Amaya Serrano et al., Appellants, v SophiaPopovic, Defendant/Third-Party Plaintiff-Respondent, and Pami Construction Corp.,Respondent, et al., Defendant. Baschnagel Brothers, Inc., Third-PartyDefendant-Respondent. |
—[*1] Perez & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for defendant/third-partyplaintiff-respondent. Farber, Brocks & Zane, LLP, Mineola, N.Y. (William S. Brocks and Tracy L. Frankel ofcounsel), for defendant-respondent. Gregory J. Allen, New York, N.Y. (Linda A. Stark of counsel), for third-partydefendant-respondent.
In an action to recover damages for personal injuries and wrongful death, the plaintiffsappeal, as limited by their brief, from so much of a judgment of the Supreme Court, QueensCounty (Rosengarten, J.), entered August 19, 2010, as, upon an order of the same court datedJune 24, 2010, denying their motion for summary judgment on the issue of liability against thedefendant Pami Construction Corp. and granting those branches of the motion of the defendantPami Construction Corp., and the separate motion of the defendant Sophia Popovic, individuallyand as executor of the estate of Jacob Popovic, which were for summary judgment dismissing thecomplaint insofar as asserted against each of them, is in favor of those defendants and against theplaintiff, dismissing the complaint insofar as asserted against them.
Ordered that the judgment is affirmed insofar as appealed from, with one bill of costs.
On February 21, 2007, during the construction of a single-family house and attached garageowned by Sophia Popovic and Jacob Popovic (hereinafter together the Popovics), the plaintiffs'decedent fell from the roof of the house. The plaintiffs subsequently commenced this actionagainst, among others, Sophia Popovic, individually and as executor of the estate of JacobPopovic, and Pami Construction Corp. (hereinafter Pami), the construction manager hired by thePopovics, to recover damages for personal injuries and wrongful death, alleging causes of actionsounding in common-law negligence and violations of Labor Law §§ 200, 240 (1)and § 241 (6).
The Supreme Court properly granted that branch of the motion of Sophia Popovic, [*2]individually and as executor of the estate of Jacob Popovic, whichwas for summary judgment dismissing the complaint insofar as asserted against her. With respectto the causes of action alleging violations of Labor Law § 240 (1) and § 241 (6),Sophia Popovic made a prima facie showing that the work was performed at a one-familydwelling and that the Popovics did not direct or control the work (see Rodriguez v Gany, 82 AD3d863, 864-865 [2011]; Chowdhury vRodriguez, 57 AD3d 121, 126 [2008]). With respect to the causes of action allegingcommon-law negligence and a violation of Labor Law § 200, Sophia Popovic made aprima facie showing that the Popovics did not have the authority to supervise or control thedecedent's work (see Ferreira v City ofNew York, 85 AD3d 1103, 1106 [2011]; Ortega v Puccia, 57 AD3d 54, 61-63 [2008]). In opposition, theplaintiffs failed to raise a triable issue of fact.
The Supreme Court also properly granted that branch of Pami's motion which was forsummary judgment dismissing the complaint insofar as asserted against it. The evidencesubmitted by Pami showed that, prior to the date of the accident, safety equipment, includingplanks and brackets, had been removed from the main roof of the house and placed on the roof ofthe garage in anticipation of the completion of the installation of the garage roof. The evidencealso showed that, on the date of the accident, the decedent was instructed to work only on thegarage roof, and was not instructed to do any work on the main roof. Under the circumstances ofthis case, Pami established, as a matter of law, that the decedent's decision to climb onto the roofof the main house, where there was no safety equipment, was the sole proximate cause of hisinjuries (see Robinson v East Med. Ctr.,LP, 6 NY3d 550, 554-555 [2006]; Montgomery v Federal Express Corp., 4 NY3d 805, 806 [2005]; Capellan v King Wire Co., 19 AD3d530, 532 [2005]; Misirlakis v East Coast Entertainment Props., 297 AD2d 312,312-313 [2002]). In opposition, the plaintiffs failed to raise a triable issue of fact.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Angiolillo, J.P., Lott, Austin and Cohen, JJ., concur.