Opinion
Index 51977/2018
04-23-2020
AMADO MORALES, Plaintiff, v. RALPH SHAPIRO and NANCY SHAPIRO, Defendants.
Unpublished Opinion
DECISION & ORDER
HON. WILLIAM J. GIACOMO, J.S.C.
In an action to recover damages for personal injuries, the defendants move for summary judgment dismissing the complaint, pursuant to CPLR 3212:
Papers Considered
1. Notice of Motion/Affirmation of Jayne F. Monahan, Esq./Exhibits A-G;
2. Affirmation of Paul J. Campson, Esq.;
3. Reply Affirmation of Jayne F. Monahan, Esq./Exhibit A.
Factual and Procedural Background
On September 26, 2015, the plaintiff was allegedly injured while cleaning windows at the home of the defendants. Plaintiff was using an extension ladder and cleaning the exterior windows with a paper towel when the ladder slid to the side causing him to fall.
Plaintiff commenced this action against the defendants asserting causes of action pursuant to Labor Law 200, 240(1), and 241(6), as well as common law negligence.
Defendants move for summary judgment on the grounds that they are not liable under the Labor Law pursuant to the single-family home exemption as they did not supervise or control plaintiffs work. Defendants further argue that washing windows is not a covered activity under the Labor Law.
In opposition, plaintiff argues that window washing is a covered activity and that issues of fact exist as to whether the defendants supervised and controlled his work.
Discussion
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v NY. Univ. Med. Ctr, 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v N.Y. Univ. Med. Ctr, 64 N.Y.2d at 853).
"Once this showing has been made, however, the burden shifts to the. party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see Zuckerman v City of New York, 49 N.Y.2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v New York, 49 N.Y.2d at 562).
Labor Law §§ 240(1) and 241(6) provide an exemption from liability for "owners of one and two-family dwellings who contract for but do not direct or control the work." (see Campanello v Cinqueman,, 179 A.D.3d 763 [2d Dept 2020]). In order for owners of one or two-family residential dwellings to be subject to liability under Labor Law §§ 240 or 241, the plaintiff must prove that the owners "directed or controlled" the work being performed (see Labor Law §§ 240, 241; Spinillo v Strober Long Is. Bldg. Material Ctrs., 192 A.D.2d 515, 516 [2d Dept 1993]). The phrase "direct or control" is construed strictly and refers to the situation where the "owner supervises the method and manner of the work" (Rimoldy v Schanzer, 147 A.D.2d 541, 545 [2d Dept 1989]).
The evidence demonstrates that plaintiff had been performing odd jobs during the summers at the defendants' home for approximately 15 years. On the date of the accident, defendants called plaintiff to wash the exterior windows of the house. Plaintiff did not have any tools. Defendant Nancy Shapiro was home when plaintiff arrived at the home. She and plaintiff went to a neighbor's house to borrow a ladder. Plaintiff was using the extension ladder washing the exterior windows on the front of the house when the ladder slid causing him to fall to the ground. Neither of the defendants witnessed the accident.
The defendants demonstrated that the work was being performed at their single-family residence and they did not direct or control the plaintiffs work (see Alexandridis v Van Gogh Contr. Co__A.D.3d__, 2020 NY Slip Op 01314 [2d Dept February 26, 2020]). Any monitoring of the progress of the work, approval of the aesthetics of the work, or overseeing of the work's general quality "reflects typical homeowner interest in the ongoing progress of the work and does not constitute the kind of direction or control necessary to overcome the homeowner's exemption from liability" (Chowdhury v Rodriguez, 57 A.D.3d 121, 127 [2d Dept 2008] [holding that even assuming the defendants loaned the short ladder to the plaintiff, it was not equivalent to directing or controlling the work and could not serve as a predicate for liability outside of the homeowners' exemption]; see Campanello v Cinqueman,, 179 A.D.3d 763 [holding that the defendant's activities in visiting the work site, providing plans for the area to be worked on, making general decisions, and reviewing the progress of the work were not any more extensive than what would be expected of an ordinary homeowner]). In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact (see Lombard! v City of NewYork, 175 A.D.3d 1521 [2d Dept 2019]).
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work (see Ortega v Puccia, 57 A.D.3d 54, 60 [2d Dept 2008]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed" (Ortega v Puccia, 57 A.D.3d at 61).
Liability in common-law negligence and under Labor Law § 200 in cases involving an allegedly dangerous premises condition is established only if the owner or general contractor had control over the work site and either created the dangerous condition or had actual or constructive notice of it (see Mendez v Vardaris Tech, Inc., 173 A.D.3d 1004, 1005 [2d Dept 2019]; Doto v Astoria Energy II, LLC, 129 A.D.3d 660, 663 [2d Dept 2015]). "When a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work" (Ortega v Puccia, 57AD 3d at 61).
Here, the defendants established, prima facie, that they did not create or have actual or constructive notice of any dangerous condition (see Mendez v Vardaris Tech, Inc., 173 A.D.3d 1004, 1005 [2d Dept 2019]). The plaintiff did not allege that the ladder was dangerous or defective. Moreover, as set forth above, the defendants established, prima facie, that they did not supervise or control the performance of the work (see Campanello v Cinqueman,, 179 A.D.3d 763; McFadden v Lee, 62 A.D.3d 966, 967 [2d Dept 2009]). "Evidence of mere general supervisory authority to oversee the progress of the work, to inspect the work product, and/or to make aesthetic decisions is insufficient to impose liability under Labor Law § 200" (id. at 967). In opposition, the plaintiff failed to raise a triable issue of fact (see Davies v Simon Prop. Group, Inc., 174 A.D.3d 850, 855 [2d Dept 2019]).
Accordingly, it is
ORDERED that the defendants' motion for summary judgment dismissing the complaint is GRANTED and the complaint is dismissed.