Opinion
102460/2008.
Decided January 20, 2010.
On April 8, 2008, the plaintiff allegedly sustained injuries when he fell through an open basement window of the residence of defendant Joseph Sciorta located at 264 Bradford Avenue, Staten Island, New York. The defendant Sciorta was having renovations performed on his residence and plaintiff, a carpenter, was working on the framing of the building when the accident occurred. The plaintiff alleges he slipped on a board that he placed over an open basement window.
The plaintiff commenced this action on or about May 16, 2008, against defendant Joseph Sciorta as the homeowner and allegedly, the general contractor. Presently, discovery has been completed and defendant Sciorta is moving for summary judgment on New York Labor Law §§ 240(1), 241(6) and 200, alleging the homeowner exception applies and further, that no evidence of negligence on his part exists. In addition, the plaintiff is moving for summary judgment on liability on his New York Labor Law § 240(1) and 241(6) claims.
It is well settled that a "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" ( Chance v. Felder , 33 AD3d 645 , 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" ( Fleming v. Graham , 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotations omitted]).
I. Labor Law § 240 (1) and Labor Law § 241 (6) Claims
New York Labor Law §§ 240(1) and 241(6) provide identical language for a homeowner exception, namely, that "owners of one and two-family dwellings who contract for but do not direct or control the work" cannot be held liable ( Chowdhury v. Rodriguez, 57 AD3d 151 [2d Dept., 2008]; Ordonez v. Levy , 19 AD3d 385 , 386 [2d Dept., 2005][granting the homeowners motion for summary judgment where she was the owner of a single family dwelling and did not direct or control plaintiff's work]). Moreover, "in order for a defendant to receive the protection of the homeowners' exemption, the defendant must satisfy two prongs required by the statutes. First, the defendant must show that the work was conducted at a dwelling that is a residence for only one or two families . . . [and] the second [prong of] the homeowners' exemption is that the defendants not direct or control the work'" (Labor Law §§ 240, 241; Chowdhury v. Rodriguez, 57 AD3d at 154). With respect to the second prong, "[t]he expressed and unambiguous language of both statutes focuses upon whether the defendants supervised the methods and manner of the work" ( id.).Here, the defendant has established his prima facie entitlement to summary judgment by submitting evidence sufficient to establish that the work was being performed on his one-family residence and that he did not direct or control plaintiff's work ( Chance v. Felder , 33 AD3d 645 , 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557; Chowdhury v. Rodriguez, 57 AD3d 151, [2d Dept., 2008]; Ordonez v. Levy , 19 AD3d 385 , 386 [2d Dept., 2005]). The defendant has established that the house was a single family home where he resided with his wife and children.
In opposition, the plaintiff has presented no evidence to establish either that the residence was not a one-family house or that the defendant directed or controlled the manner and method of the plaintiff's work. While evidence shows that the defendant homeowner was involved with scheduling deliveries and other logistical tasks, none were more than typical homeowner interest their on-going home construction project, an interest which the courts have repeatedly held does not constitute the kind of direction or control necessary to overcome the homeowner's exemption from liability ( Chowdhury v. Rodriguez, 57 AD3d at 154; Arama v. Fruchter , 39 AD3d 678, 678-679 [2d Dept., 2007][finding that evidence of the homeowner's involvement in aesthetic/scheduling decisions do not constitute directing or controlling plaintiffs work]). As a result, the plaintiff has failed to raise triable issues of fact and the defendant's motion for summary judgment on New York Labor Law §§ 240(1) and 241 (6) is granted.
II. Labor Law § 200
It is well settled that New York Labor Law § 200 "is but a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work" ( Hunter v. R.J.L. Dev., LLC , 44 AD3d 822 [2d Dept., 2007]; Haider v. Davis , 35 AD3d 363 [2d Dept., 2006]; Basso v Miller, 40 NY2d 233, 241[finding "an owner of real property has a duty to maintain the property in a reasonably safe condition"]).
Labor Law § 200 has two disjunctive standards for determining a property owner's liability. The first is the authority to supervise the work when a plaintiff's injury arises out of defects or dangers in the methods or materials of the work. The second standard is applicable to worker injuries arising out of the condition of the premises rather than the methods or manner of the work. When a premises condition is at issue, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice ( Chowdhury v. Rodriguez, 57 AD3d at 154).
Here, the defendant has established that no liability should attach under either standard ( Chance v. Felder , 33 AD3d 645 , 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557; Chowdhury v. Rodriguez, 57 AD3d at 154). First, the defendant has presented sufficient evidence that he did not direct or control the method and/or manner of work being performed by the plaintiff. As previously indicated, the defendant homeowner was only involved in aesthetic and/or scheduling deliveries but did not direct how plaintiff should perform his job, which was done by plaintiff's boss, Jose Rodriguez. The defendant also established that he did not create the defective condition, the open window cover or the board placed over the window which was done by plaintiff. And further, there is no evidence presented by the plaintiff that the defendant homeowner had any constructive notice of the window opening or board placed over the opening. The plaintiff states, in his affidavit "[t]he basement window openings had been left open on top prior to our arrival. The openings were not planked over as needed. I placed a board over the window opening because I knew I had to work in the area. During the course of working I stepped on the board which slipped allowing me to fall into the basement below" (emphasis added).
In opposition, the plaintiff has failed to raise a triable issue of fact and failed to present any evidence that defendant homeowner either controlled the method and/or manner of work or had the requisite notice of the open window covering or the board that was placed by the plaintiff over the window ( Zuckerman v. City of New York, 49 NY2d 557; Chowdhury v. Rodriguez, 57 AD3d 151, [2d Dept., 2008]). Plaintiff presented no evidence that the defendant was aware of the opening prior to the date of the accident nor did defendant create the condition. As a result, without the requisite control and/or notice the defendant homeowner cannot be held liable ( Chowdhury v. Rodriguez, 57 AD3d at 154; Ferrero v. Best Modular Homes , 33 AD3d 847 , 850-851 [2d Dept., 2006][finding no homeowner liability under New York Labor Law § 200 when there was no evidence of supervisory control or actual notice]; Kajo v. E. W. Howell Co., Inc. , 52 AD3d 659, 661-662 [2d Dept., 2008][granting defendant motion for summary judgment on plaintiff's Labor Law § 200 claims where the requisite level of supervisory control was not established]).
Accordingly, it is
ORDERED that the defendant Joseph Sciorta's motion for summary judgment is hereby granted in its entirety, and it is further
ORDERED that the plaintiff's complaint is hereby dismissed, and it is further
ORDERED that the plaintiff's motion is hereby moot, and it is further
ORDERED that the Clerk enter judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.