Opinion
2003-00648
Argued May 27, 2003.
July 7, 2003.
In an action to recover damages for personal injuries, etc., the defendant Bernice Perry appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated December 6, 2002, as denied those branches of her cross motion which were for summary judgment dismissing the first, second, and third causes of action of the plaintiff Joseph Duncan insofar as asserted against her based on, inter alia, common-law negligence, and Labor Law §§ 240 and 241.
Charles V. Borsetti (Shayne, Dachs, Stanisci, Corker Sauer, Mineola, N.Y. [Jonathan A. Dachs] of counsel), for appellant.
Louis Fiabane, New York, N.Y., for respondent.
Before: NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the cross motion of the defendant Bernice Perry which were for summary judgment dismissing the first, second, and third causes of action of the plaintiff Joseph Duncan insofar as asserted against her are granted, and the first, second, and third causes of action are dismissed insofar as asserted by that plaintiff against the appellant.
An owner of a one-or two-family dwelling is subject to liability under Labor Law §§ 240 and 241 only if the owner directed or controlled the method or manner of the work being performed ( see Duarte v. East Hills Constr. Corp., 274 A.D.2d 493; Rodas v. Weissberg, 261 A.D.2d 465). Here, in response to the appellant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff Joseph Duncan failed to raise a triable issue of fact as to whether the appellant exercised direction or control over the method or manner of his work ( see Duarte v. East Hills Constr. Corp., supra; see also Duda v. Rouse Constr. Corp., 32 N.Y.2d 405, 409). Accordingly, those branches of the cross motion which were for summary judgment dismissing the causes of action of the plaintiff Joseph Duncan pursuant to Labor Law §§ 240 and 241 insofar as asserted against the appellant should have been granted ( see Claytor v. Wilmot Cassidy, 44 A.D.2d 564, affd 34 N.Y.2d 992; Miller v. Trudeau, 270 A.D.2d 683).
The Supreme Court also erred in denying that branch of the appellant's cross motion which was for summary judgment dismissing the cause of action of the plaintiff Joseph Duncan sounding in common-law negligence insofar as asserted against her. In response to the appellant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff Joseph Duncan failed to raise a triable issue of fact as to whether the appellant either exercised direction or control over the method or manner of his work or had notice of any defect in the ladder which was provided to him ( see Cuartas v. Kourkoumelis, 265 A.D.2d 293; Giambalvo v. Chemical Bank, 260 A.D.2d 432). Accordingly, that branch of the cross motion which was for summary judgment dismissing the cause of action of the plaintiff Joseph Duncan sounding in common-law negligence insofar as asserted against the appellant should have been granted.
In light of our determination, we need not reach the parties' remaining contentions.
SMITH, J.P., KRAUSMAN, LUCIANO and CRANE, JJ., concur.