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Patino v. Drexler

Supreme Court, New York County

April 9, 2013

JOSE PATINO, Plaintiff,
v.
MILLARD DREXLER and PEGGY F. DREXLER Defendants Index No. 103348/2011

Unpublished Opinion

Submission Date: 12/19/2012

DECISION AND ORDER

HON. SALIANN SCARPULLA, J.

Papers considered in review of this motion for summary judgment and cross motion for partial summary judgment:

Notice of Motion/Affirm, of Counsel in Supp/Memo of Law.......................................1

Affirm, of Counsel in Opp. to Motion...........................................................................2

Reply Affirm, of Counsel in Supp.................................................................................3

In this action to recover damages for personal injuries, defendants Millard Drexler and Peggy F. Drexler ("the Drexlers") move for summary judgment dismissing plaintiff Jose Patino's ("Patino") complaint pursuant to CPLR § 3212.

Patino is a carpenter who performed construction and renovation work at a residence owned by the Drexlers, located at 16 Cliff Drive, Montauk, NY ("the premises"). Patino was employed by Wright & Company Construction, Inc. ("Wright & Company"), a contractor hired by the Drexlers to renovate the premises. The premises consists of a main residence, four cottages, a barn, and a garage.

Patino alleges that, on February 11, 2009, he was working at the premises, using a table saw to cut wood. While Patino was using the saw, his left hand came in contact with the blade, causing injuries to his left hand and fingers. Patino commenced this action seeking to recover damages for the injuries he sustained. He asserts negligence and Labor Law §§200, 240(1) and 241(6) causes of action against the Drexlers.

In his bill of particulars, Patino alleges that his injuries were caused by the table saw, which was dangerous and defective. Patino submits an affidavit stating that the table saw did not have safety features such as a guard or a cut-off switch.

In their motion for summary judgment, the Drexlers argue that: (1) Patino's negligence and Labor Law § 200 claims should be dismissed because they did not direct, supervise, or control his work; and (2) Patino's Labor Law § 240(1) and § 241(6) claims should be dismissed because they are entitled to the homeowner exemption as the premises consists of a one family dwelling.

In support of their motion, the Drexlers submit their own affidavits stating that they never provided any "supervision, direction or control over" over Patino's work. The Drexlers also submit affidavits from Kenneth B. Wright ("Wright") and Scott McMahon ("McMahon") from Wright & Company, which state that the Drexlers never supervised or controlled Patino's work, and that it was McMahon who supervised Patino. Wright and McMahon further state that the table saw and other tools used by Patino were supplied by Wright & Company.

The Drexlers argue that they are entitled to the homeowner exemption because the premises consists of one family dwelling. Millard Drexler states in his affidavit that the premises is "comprised of a main single family residential dwelling, four separate one story guest ...


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