| Pineda v Elias |
| 2015 NY Slip Op 01254 [125 AD3d 738] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Oscar Pineda, Appellant, v Albert Elias, AlsoKnown as Albert Stanley Elias, Respondent, et al.,Defendants. |
Dell & Dean, PLLC, Garden City, N.Y. (Mischel & Horn, P.C. [Scott T.Horn] of counsel), for appellant.
Litchfield Cavo, LLP, New York, N.Y. (Christopher A. McLaughlin of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Brandveen, J.), entered December 17, 2013,which granted that branch of the motion of the defendant Albert Elias which was forsummary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the motion of the defendant Albert Elias which was for summaryjudgment dismissing the causes of action alleging common-law negligence and violationof Labor Law § 200 insofar as asserted against him, and substitutingtherefor a provision denying that branch of the motion; as so modified, the order isaffirmed, with costs to the plaintiff.
The plaintiff allegedly sustained injuries when he fell from a ladder while performingconstruction work on the residence of the defendant Albert Elias. Thereafter, the plaintiffcommenced this action against the defendants, and Elias moved for summary judgmentdismissing the complaint insofar as asserted against him. The Supreme Court granted themotion.
Elias established, prima facie, the applicability of the one- and two-familyhomeowner exemption under Labor Law §§ 240 (1) and 241 (6) (see Nai Ren Jiang v ShaneYeh, 95 AD3d 970, 970-971 [2012]). In opposition, the plaintiff failed to raise atriable issue of fact (see Pina vMerolla, 34 AD3d 663, 664 [2006]). Furthermore, the Supreme Court properlyrejected the plaintiff's contention that Elias's motion was premature, since the plaintiffoffered nothing but speculation as to whether discovery might lead to evidence relevantto the applicability of the homeowner exemption (see id. at 664).
The Supreme Court erred, however, in granting that branch of Elias's motion whichwas for summary judgment dismissing the causes of action alleging common-lawnegligence and violation of Labor Law § 200 insofar as asserted againsthim. The plaintiff alleged that his injuries were caused both by a dangerous condition onthe premises and the "means and methods" of construction. Accordingly, in order to beentitled to judgment as a matter of law dismissing those causes of action, Elias wasrequired to address both theories (see Garcia v Market Assoc., 123 AD3d [*2]661, 664 [2014]; DiMaggio v Cataletto, 117 AD3d 984, 986 [2014]; Reyes v Arco Wentworth Mgt.Corp., 83 AD3d 47, 52 [2011]). Since Elias failed to establish, prima facie, thathe neither created nor had actual or constructive notice of a dangerous condition on thepremises, that branch of his motion which was for summary judgment dismissing thecauses of action alleging common-law negligence and violation of Labor Law§ 200 insofar as asserted against him should have been denied, withoutregard to the sufficiency of the plaintiff's papers submitted in opposition (see Garcia vMarket Assoc., 123 AD3d at 665).
The plaintiff's remaining contention, raised for the first time on appeal, is notproperly before this Court (seePetrozza v Franzen, 109 AD3d 650, 652 [2013]; Chapman v Pyramid Co. ofBuffalo, 63 AD3d 1623, 1624 [2009]; Provident Bank v Giannasca, 55 AD3d 812, 812 [2008]).Rivera, J.P., Balkin, Hall and Sgroi, JJ., concur.