| Holifield v Seraphim, LLC |
| 2012 NY Slip Op 01433 [92 AD3d 841] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Michael Holifield, Respondent, v Seraphim, LLC, et al.,Appellants, et al., Defendants. |
—[*1] David S. Dender, P.C. (Joshua Annenberg, New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Seraphim, LLC, AlbertKalimian, Manda Kalimian, and Manda Kalimian 2003 Irrevocable Trust appeal, as limited bytheir notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County(Marber, J.), dated June 29, 2010, as denied their motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them, and granted that branch of theplaintiff's cross motion which was to strike their first affirmative defense.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, themotion of the defendants Seraphim, LLC, Albert Kalimian, Manda Kalimian, and MandaKalimian 2003 Irrevocable Trust for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them is granted, and that branch of the plaintiff's cross motionwhich was to strike the first affirmative defense of the defendants Seraphim, LLC, AlbertKalimian, Manda Kalimian, and Manda Kalimian 2003 Irrevocable Trust is denied as academic.
The defendant Albert Kalimian and his wife, the defendant Manda Kalimian (hereinaftertogether the Kalimians), created the defendant Manda Kalimian 2003 Irrevocable Trust(hereinafter the Trust) for the purpose of purchasing certain property in Muttontown, NassauCounty, and placing it in trust for their two children. The Kalimians were trustees of the Trust.The property was purchased by the Trust with the intent of building a family residence and horsefarm on the property. The Trust leased the property to the defendant Seraphim, LLC (hereinafterSeraphim), under a long-term lease. Pursuant to the lease, Seraphim paid all operating expenseswith respect to the property, including gas, electric, and labor for a horse stable that wasconstructed, and paid for all improvements on the property. The Kalimians were the sole officersof Seraphim.
Albert Kalimian hired subcontractors to perform work on the residence and barn that wereconstructed on the property. The plaintiff, an employee of one of the subcontractors, wasassigned to put up rafters in the barn. The plaintiff allegedly was injured when a wooden plankon which he was standing broke and caused him to fall about 20 feet to the ground. The plaintiffcommenced this action against the Trust, the Kalimians, and Seraphim, among others, alleging,inter [*2]alia, violations of Labor Law § 240 (1) and§ 241 (6). The Trust, Seraphim, and the Kalimians moved for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them. In the orderappealed from, the Supreme Court, inter alia, denied the motion.
Labor Law § 240 (1) and § 241 (6) apply to owners, contractors, and their agents(see Labor Law § 240 [1]; § 241 [6]). However, the homeowner's exemptionto liability under Labor Law § 240 (1) and § 241 (6) is available to "owners of oneand two-family dwellings who contract for but do not direct or control the work" (Labor Law§ 240 [1]; § 241 [6]; seeChowdhury v Rodriguez, 57 AD3d 121, 126 [2008]). Here, the Trust, the owner of theproperty, demonstrated its entitlement to judgment as a matter of law with respect to thehomeowner's exemption by establishing that it did not direct or control the work and that theproperty was intended to be used solely for residential purposes (see Castellanos v United Cerebral PalsyAssn. of Greater Suffolk, Inc., 77 AD3d 879, 880 [2010]). The Trust demonstrated thatthe premises was not an income-producing property, as any commercial benefit received from itsfinancial arrangement with Seraphim was ancillary to the residential purpose of the property(see Bartoo v Buell, 87 NY2d 362 [1996]; Castellanos v United Cerebral Palsy Assn.of Greater Suffolk, Inc., 77 AD3d at 880; Morocho v Marino Enters. Contr. Corp., 65 AD3d 675 [2009]). Inresponse to the Trust's prima facie showing of entitlement to judgment as a matter of law, theplaintiff failed to raise a triable issue of fact.
Furthermore, the Kalimians and Seraphim demonstrated their prima facie entitlement tojudgment as a matter of law dismissing the causes of action alleging violations of Labor Law§ 240 (1) and § 241 (6) insofar as asserted against them by establishing that theywere neither an owner, contractor, or statutory agent under those provisions (see Jamindar v Uniondale Union FreeSchool Dist., 90 AD3d 612 [2011]; Ortiz v I.B.K. Enters., Inc., 85 AD3d 1139, 1140-1141 [2011]).Albert Kalimian did not become a general contractor, responsible for supervising the entireconstruction project and enforcing safety standards, by virtue of the fact that he visited theproperty to check on the progress of the work and hired separate contractors to perform differentaspects of the work (see Ferrero v BestModular Homes, Inc., 33 AD3d 847, 850 [2006]; Rodas v Weissberg, 261AD2d 465 [1999]). In opposition, the plaintiff failed to raise a triable issue of fact.
In his brief, the plaintiff states, with respect to his causes of action alleging common-lawnegligence and violation of Labor Law § 200, that he "waives" those causes of action.
Accordingly, the Supreme Court should have granted the motion of Seraphim, the Kalimians,and the Trust for summary judgment dismissing the complaint and all cross claims insofar asasserted against them, and denied that branch of the plaintiff's cross motion which was to strikethe first affirmative defense of Seraphim, the Kalimians, and the Trust as academic (see South Liberty Partners, L.P. v Town ofHaverstraw, 82 AD3d 956, 959 [2011]). Skelos, J.P., Hall, Lott and Cohen, JJ., concur.[Prior Case History: 2010 NY Slip Op 31701(U).]