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Rodriguez v. Mendlovits

Supreme Court of New York, Second Department

August 2, 2017

Vinicio Rodriguez, respondent-appellant,
v.
Malka E. Mendlovits, et al., appellants-respondents, et al., defendant. Index No. 2120/13

          Argued Date: May 8, 2017

          D52958 G/afa

          James J. Toomey, New York, NY (Eric P. Tosca and Michael J. Kozoriz of counsel), for appellants-respondents.

          Pena & Kahn, PLLC (Shayne, Dachs, Sauer & Dachs, LLP, Mineola, NY [Jonathan A. Dachs], of counsel), for respondent-appellant.

          RUTH C. BALKIN, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX HECTOR D. LASALLE, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendants Malka E. Mendlovits and Joel Mendlovits appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated April 13, 2015, as denied their motion for summary judgment dismissing the complaint and any cross claims insofar as asserted against them, and the plaintiff cross-appeals from so much of the same order as denied his cross motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§240(1) and 241(6).

         ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the defendants Malka E. Mendlovits and Joel Mendlovits for summary judgment dismissing the complaint and any cross claims insofar as asserted against them is granted; and it is further, ORDERED that the order is affirmed insofar as cross-appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendants Malka E. Mendlovits and Joel Mendlovits payable by the plaintiff.

         The defendant Joel Mendlovits hired the plaintiffs employer, nonparty All Care Contracting Corp. (hereinafter All Care), to remove siding and apply stucco on the rear of the two-family home owned by his wife, the defendant Malka E. Mendlovits. The plaintiff allegedly sustained injuries when another worker, who had been holding the ladder on which the plaintiff was standing, let go of the ladder and it slipped, causing the plaintiff to fall. The plaintiff commenced this action against the Mendlovitses, among others, asserting causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

         The Mendlovitses moved for summary judgment dismissing the complaint and any cross claims asserted against them on the grounds, inter alia, that they were entitled to the benefit of the homeowner's exemption of Labor Law §§ 240 and 241, and that they did not control or supervise the plaintiffs work or the work site. The plaintiff cross-moved for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6). The Supreme Court denied both the motion and the cross motion.

         Labor Law §§ 240(1) and 241 specifically exempt from liability thereunder "owners of one and two-family dwellings who contract for but do not direct or control the work." This homeowner's exemption protects "'those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability'" (Nai Ren Jiang v Yeh, 95 A.D.3d 970, 970, quoting Rodriguez v Gany, 82 A.D.3d 863, 864; see Abdou v Rampaul, 147 A.D.3d 885, 886). A defendant seeking the protection of the exemption must demonstrate (1) that the work was conducted at the defendant's one-family or two-family residence, and (2) the defendant did not direct or control the work (see Abdou v Rampaul, 147 A.D.3d at 886; Nai Ren Jiang v Yeh, 95 A.D.3d at 971; Chowdhury v Rodriguez, 57 A.D.3d 121, 126; Ortega v Puccia, 57 A.D.3d 54, 58). "The phrase 'direct or control' as used in those statutes is construed strictly and refers to the situation where the owner supervises the method and manner of the work" (Torres v Levy, 32 A.D.3d 845, 846 [internal quotation marks omitted]; see Abdou v Rampaul, 147 A.D.3d at 886; Youseff v Malik, 112 A.D.3d 617, 618; Ferrero v Best Modular Homes, Inc., 33 A.D.3d 847, 849).

         Here, the Mendlovitses established Malka's entitlement to the protection of the homeowner's exemption by submitting evidence that she owned the two-family residence on which the work was being performed and that she did not direct or control the work being done (see Abdou v Rampaul, 147 A.D.3d at 886; Chowdhury v Rodriguez, 57 A.D.3d at 127; Ortega v Puccia, 57 A.D.3d at 59; Ferrero v Best Modular Homes, Inc., 33 A.D.3d at 849-850; Torres v Levy, 32 A.D.3d at 846). The complaint explicitly alleged that she owned the premises. In opposition, the plaintiff failed to raise a triable issue of fact.

         Joel did not own the residence, and therefore, was not entitled to the homeowner's exemption (see Abdou v Rampaul, 147 A.D.3d at 886; Youseff v Malik, 112 A.D.3d at 619; Westgate v Broderick, 107 A.D.3d 1389, 1390; Fisher v Coghlan, 8 A.D.3d 974, 975-976). However, he demonstrated that liability could not be imposed upon him as a contractor or agent within the meaning of Labor Law §§ 240(1) and 241(6).

         "A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured" (Linkowski v City of New York, 33 A.D.3d 971, 974-975; see Walls v Turner Constr. Co., 4 N.Y.3d 861, 863-864; Russin v Louis N. Picciano & Son, 54 N.Y.2d 311, 318; Herrel v West, 82 A.D.3d 933, 933). "To impose . . . liability [under the Labor Law], the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition" (Linkowski v City of New York, 33 A.D.3d at 975; see Samaroo v Patmos Fifth Real Estate, Inc., 102 A.D.3d 944, 946; Williams v Dover Home Improvement, 276 A.D.2d 626, 626).

         Here, Joel established that he did not possess the requisite authority to supervise or control the work being done to support liability under Labor Law §§ 240(1) and 241(6). He hired All Care to perform stucco work on the home, but did not instruct All Care or the plaintiff how or when to do the work and did not provide them with any tools, materials, or safety equipment. The plaintiff received instructions on when, where, and how to perform the work from All Care and never spoke to Joel, who supervised the progress of the work only to the extent of making sure it was getting done. Such general supervision is insufficient to impose liability under Labor Law §§ 240(1) or 241(6) (see Vasquez v Humboldt Seigle Lofts, LLC, 145 A.D.3d 709, 710; Marquez v L&M Dev. Partners, Inc., 141 A.D.3d 694, 697; Gonzalez v Magestic Fine Custom Home,115 ...


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