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Fraser v. King

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Nov 4, 2020
188 A.D.3d 656 (N.Y. App. Div. 2020)

Opinion

2019–00353 Index No. 6874/15

11-04-2020

Anthony FRASER, appellant, v. Braden M. KING, et al., respondents (and a third-party action).

Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y. (Edward J. Pavia, Jr., of counsel), for appellant. Gerber Ciano Kelly Brady, LLP, Garden City, N.Y. (Matthew S. Libroia of counsel), for respondents.


Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y. (Edward J. Pavia, Jr., of counsel), for appellant.

Gerber Ciano Kelly Brady, LLP, Garden City, N.Y. (Matthew S. Libroia of counsel), for respondents.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated November 20, 2018. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6), and denied the plaintiff's cross motion for summary judgment on the issue of liability on that cause of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly sustained injuries while performing construction work at a house owned by the defendants. The plaintiff commenced this action alleging violations of Labor Law §§ 200 and 241(6), as well as common-law negligence. Following discovery, the defendants moved, among other things, for summary judgment dismissing the complaint and the plaintiff cross-moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 241(6). The Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action, and denied the plaintiff's cross motion. The plaintiff appeals.

Owners of a one- or two-family dwelling used as a residence are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed (see Chavez–Lezama v. Kun Gao, 173 A.D.3d 826, 827, 103 N.Y.S.3d 510 ). Here, the defendants made a prima facie showing that they were the owners of a one-family dwelling and that they did not direct or control the work being performed (see Nai Ren Jiang v. Shane Yeh, 95 A.D.3d 970, 971, 944 N.Y.S.2d 200 ; Chowdhury v. Rodriguez, 57 A.D.3d 121, 126–127, 867 N.Y.S.2d 123 ). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff demonstrated only that the defendants made aesthetic decisions and exercised general supervision with respect to the project, neither of which deprives them of the benefit of the statutory exemption (see Affri v. Basch, 45 A.D.3d 615, 616, 846 N.Y.S.2d 270, affd 13 N.Y.3d 592, 894 N.Y.S.2d 370, 921 N.E.2d 1034 ).

Accordingly, we agree with the Supreme Court's determination granting that branch of the defendants' motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action, and denying the plaintiff's cross motion for summary judgment on the issue of liability on that cause of action.

MASTRO, J.P., AUSTIN, LEVENTHAL and MILLER, JJ., concur.


Summaries of

Fraser v. King

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
Nov 4, 2020
188 A.D.3d 656 (N.Y. App. Div. 2020)
Case details for

Fraser v. King

Case Details

Full title:Anthony Fraser, appellant, v. Braden M. King, et al., respondents (and a…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Nov 4, 2020

Citations

188 A.D.3d 656 (N.Y. App. Div. 2020)
2020 N.Y. Slip Op. 6247
131 N.Y.S.3d 901

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