| Hossain v Kurzynowski |
| 2012 NY Slip Op 01212 [92 AD3d 722] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Nur Hossain, Appellant, v Marek Kurzynowski et al.,Respondents. |
—[*1] Purcell & Ingrao, P.C., Mineola, N.Y. (Terrance J. Ingrao of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), datedDecember 16, 2010, as denied his motion for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1) and granted those branches ofthe defendants' cross motion which were for summary judgment dismissing the causes of actionalleging violations of Labor Law § 240 (1) and § 241 (6).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, theplaintiff's motion for summary judgment on the issue of liability on the cause of action alleging aviolation of Labor Law § 240 (1) is granted, and those branches of the defendants' crossmotion which were for summary judgment dismissing the causes of action alleging violations ofLabor Law § 240 (1) and § 241 (6) are denied.
The plaintiff allegedly was injured when an unsecured ladder slipped from beneath him,causing him to fall while he was working for a contractor hired to perform window repairs on aresidential building owned by the defendants. The residence was classified as a three-familydwelling by the Department of Buildings and housed three separate apartments, each one with aseparate entrance. The defendants occupied one of the apartments, relatives of the defendantsoccupied the second apartment, and the third apartment was rented by the defendants to a tenant.
Following his accident, the plaintiff commenced this action against the defendants, alleging,among other things, violations of Labor Law § 240 (1) and § 241 (6). The plaintiffmoved for summary judgment on the issue of liability on the cause of action alleging a violationof Labor Law § 240 (1). The defendants cross-moved for summary judgment dismissingthe complaint, contending, among other things, that they could not be held liable since they werethe owners of a two-family residence and did not direct, control, or supervise the plaintiff's work.Alternatively, they contended that the Labor Law § 240 (1) cause of action should bedismissed because the plaintiff was the sole proximate cause of his injury and that there was noviolation of the Industrial Code to support a Labor Law § 241 (6) cause of action. TheSupreme Court, inter alia, granted those branches of the defendants' cross motion which were forsummary judgment dismissing the Labor Law § [*2]240 (1)and § 241 (6) causes of action based on the homeowner's exemption and denied theplaintiff's motion.
Under the homeowner's exemption, owners of a one- or two-family dwelling are exemptfrom liability under Labor Law §§ 240 and 241 unless they directed or controlled thework being performed (see Bartoo v Buell, 87 NY2d 362, 367 [1996]; Cannon vPutnam, 76 NY2d 644 [1990]; Chowdhury v Rodriguez, 57 AD3d 121 [2008]). Although LaborLaw § 240 (1) and § 241 (6) do not specifically define "family" for the purposes ofthe homeowner's exemption, Multiple Dwelling Law § 4 (5) describes, in pertinent part, afamily as "two or more persons occupying a dwelling, living together and maintaining a commonhousehold." A building's classification as a "multiple dwelling" does not automatically cause thehomeowner to lose the protection of the exemption (see Small v Gutleber, 299 AD2d 536[2002]).
Here, however, the defendants failed to demonstrate that the building was actually atwo-family residence although classified as a three-family dwelling. While the defendants andmembers of the defendants' family occupied two of the three apartments in the building, thesetwo apartments did not constitute a single-family dwelling, as each provided separate livingspaces on different floors, each with its own entrance. The defendants did not submit anyevidence demonstrating that the related occupants of these two separate apartments were livingtogether and maintaining a common household as a single family. Therefore, as a matter of law,these two apartments did not together constitute a single-family dwelling, and the two apartmentscoupled with the third did not constitute a two-family dwelling. Thus, the defendants are notentitled to the homeowner's exemption (compare Khela v Neiger, 85 NY2d 333, 336[1995]).
With respect to the defendants' alternate ground for summary judgment dismissing the LaborLaw § 241 (6) cause of action, the defendants failed to meet their prima facie burden ofdemonstrating that they did not violate that statute. Labor Law § 241 (6) "imposes anondelegable duty of reasonable care upon owners and contractors 'to provide reasonableand adequate protection and safety' to persons employed in, or lawfully frequenting, all areas inwhich construction, excavation or demolition work is being performed" (Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 348 [1998], quoting Labor Law § 241 [6]). In orderto state a cause of action under Labor Law § 241 (6), a plaintiff must allege that theproperty owners violated a regulation that sets forth a specific standard of conduct (see e.g.Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). Because this sectionimposes a nondelegable duty on owners, a plaintiff need not show that the defendants exercisedsupervision or control over the worksite in order to establish a right of recovery (see St. Louis v Town of N. Elba, 16NY3d 411, 413 [2011]).
Here, the plaintiff testified at his deposition that the rubber had worn away from the feet ofthe ladder he was given to perform repairs on the defendants' dwelling and that the ladder slippedout from underneath him while he was working. Consequently, the plaintiff alleged, among otherthings, that the defendants violated 12 NYCRR 23-1.21 (b) (3) (iv) in failing to properly maintainthe ladder, which is sufficient to support a cause of action alleging a violation of Labor Law§ 241 (6) (see Jicheng Liu vSanford Tower Condominium, Inc., 35 AD3d 378 [2006]). Accordingly, the branch ofthe defendants' cross motion which was for summary judgment dismissing the cause of actionalleging a violation of Labor Law § 241 (6) should have been denied.
The Supreme Court erred in denying the plaintiff's motion for summary judgment on theissue of liability on his Labor Law § 240 (1) cause of action as procedurally defectivepursuant to CPLR 3212 (b) since a complete set of pleadings were, in fact, annexed to theplaintiff's motion. Turning to the merits of his motion, the plaintiff made a prima facie showingof entitlement to summary judgment on the issue of liability by submitting evidencedemonstrating that the ladder he used in performing repairs on the defendants' premises wasdefective and moved, causing him to fall. The plaintiff testified at his deposition that the ladderwas "old," the rubber on its feet had worn away, and that it was unsecured, thus establishing aviolation of Labor Law § 240 (1) (see Melchor v Singh, 90 AD3d 866 [2011]). In opposition, thedefendants failed to raise a triable issue of fact as to whether the plaintiff was the sole proximatecause of his accident and failed to establish prima facie their entitlement to summary judgmentdismissing the cause of action (seeGonzalez v AMCC Corp., 88 AD3d 945 [2011]). Accordingly, the Supreme Courtshould have granted the plaintiff's motion for summary judgment on the issue of liability on thecause of action alleging a violation of Labor Law § 240 (1) and denied that branch of thedefendants' motion which was for summary judgment dismissing that cause of action (seeGonzalez v AMCC Corp., 88 AD3d at 945; Ricciardi v Bernard Janowitz Constr. Corp., 49 AD3d 624, 625[2008]; Boe v Gammarati, 26 AD3d351, 351-352 [2006]; Blair v Cristani, 296 AD2d 471, 471-472 [2002]; Guzmanv Gumley-Haft, Inc., 274 AD2d 555, 556 [2000]).
In light of our determination, it is unnecessary to address the plaintiff's remainingcontentions. Dillon, J.P., Florio, Chambers and Roman, JJ., concur. [Prior Case History: 29Misc 3d 1237(A), 2010 NY Slip Op 52177(U).]