| DiMaggio v Cataletto |
| 2014 NY Slip Op 03795 [117 AD3d 984] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Giacomo DiMaggio et al., Appellants, v MaryCataletto, Respondent. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), forappellants.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M.Murphy of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County(Winslow, J.), entered August 20, 2012, as granted that branch of the defendant's motionwhich was for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Giacomo DiMaggio (hereinafter the injured plaintiff) allegedly wasinjured after falling from a ladder which slipped while he was power washing the roof ofa single-family residence owned by the defendant. The injured plaintiff, and his wifesuing derivatively, commenced this action against the defendant, alleging common-lawnegligence and violations of Labor Law §§ 200 and 240 (1).
Labor Law § 240 (1) imposes a nondelegable duty upon owners andcontractors to provide safety devices necessary for workers subjected to elevation-relatedrisks in circumstances specified by the statute (see Soto v J. Crew Inc., 21 NY3d 562, 566 [2013];Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). To recover, theplaintiff must have been engaged in a covered activity—"the erection, demolition,repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law§ 240 [1]; see Soto v J. Crew Inc., 21 NY3d at 566; Panek vCounty of Albany, 99 NY2d 452, 457 [2003]).
The defendant made a prima facie showing of her entitlement to judgment as a matterof law dismissing the cause of action alleging a violation of Labor Law§ 240 (1) based upon the applicability of the one- and two-familyhomeowner exemption (seeDougherty v O'Connor, 85 AD3d 1090 [2011]; Castellanos v United CerebralPalsy Assn. of Greater Suffolk, Inc., 77 AD3d 879, 880 [2010]). The"homeowner's exemption" to liability under Labor Law § 240 (1) "isavailable to 'owners of one and two-family dwellings who contract for but do not director control the work' " (Holifield v Seraphim, LLC, 92 AD3d 841, 842 [2012],quoting Labor Law §§ 240 [1]; 241 [6]; see Chowdhury v Rodriguez,57 AD3d 121, 126 [2008]). Here, it is undisputed that the defendant's home wherethe accident [*2]occurred is a single-family privateresidence. The defendant also submitted the parties' deposition testimony and heraffidavit establishing, prima facie, that she did not direct or control the method or mannerof the work. The defendant's "involvement was merely a retention of the limited powerof general supervision, and was no more extensive than would be expected of the typicalhomeowner who hired a contractor to renovate his or her home" (Orellana v Dutcher Ave. Bldrs.,Inc., 58 AD3d 612, 614 [2009] [internal quotation marks omitted]; see Nai Ren Jiang v ShaneYeh, 95 AD3d 970, 971 [2012]; Jumawan v Schnitt, 35 AD3d 382, 383 [2006];Decavallas v Pappantoniou, 300 AD2d 617, 618 [2002]). Moreover, thedefendant did not lose the protection of the statutory exemption by furnishing the ladder,bleach, and hose (see Facteau v Allen, 293 AD2d 847, 847-848 [2002]; see also Siconolfi v Crisci, 11AD3d 600, 601 [2004]; Miller v Trudeau, 270 AD2d 683 [2000];Kammerer v Baskewicz, 257 AD2d 811, 812 [1999]). In opposition, the plaintiffsfailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). Accordingly, the Supreme Court properly granted that branch of thedefendant's motion which was for summary judgment dismissing the Labor Law§ 240 (1) cause of action.
Labor Law § 200 is a codification of the common-law duty oflandowners and general contractors to provide workers with a reasonably safe place towork (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877[1993]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993])."To be held liable under Labor Law § 200 for injuries arising from themanner in which work is performed, a defendant must have 'authority to exercisesupervision and control over the work' " (Rojas v Schwartz, 74 AD3d 1046, 1046 [2010], quoting Gallello v MARJ Distribs.,Inc., 50 AD3d 734, 735 [2008]; see Chowdhury v Rodriguez, 57 AD3dat 127-128). Where a plaintiff's injuries arise not from the manner in which the work wasperformed, but from a dangerous condition on the premises, a defendant may be liableunder Labor Law § 200 if it " 'either created the dangerouscondition that caused the accident or had actual or constructive notice of the dangerouscondition' " (Rojas v Schwartz, 74 AD3d at 1047, quoting Ortega v Puccia, 57 AD3d54, 61 [2008]). When an accident is alleged to involve defects in both the premisesand the equipment used at the work site, a defendant moving for summary judgment withrespect to causes of action alleging a violation of Labor Law § 200 isobligated to address the proof applicable to both liability standards (see Reyes v Arco Wentworth Mgt.Corp., 83 AD3d 47, 52 [2011]). A defendant moving for summary judgment insuch a case may prevail "only when the evidence exonerates it as a matter of law for allpotential concurrent causes of the plaintiff's accident and injury, and when no triableissue of fact is raised in opposition as to either relevant liability standard" (id. at52).
Here, the defendant established, prima facie, both that she did not create or haveactual or constructive notice of the alleged condition which caused the injured plaintiff'sinjury, and that she did not have the authority to supervise or control the means andmethods of the injured plaintiff's work (see generally id.; Chowdhury vRodriguez, 57 AD3d at 128). In opposition, the plaintiffs failed to raise a triableissue of fact. Accordingly, the Supreme Court properly granted that branch of thedefendant's motion which was for summary judgment dismissing the causes of actionbased on an alleged violation of Labor Law § 200 and common-lawnegligence. Rivera, J.P., Austin, Roman and Hinds-Radix, JJ., concur.