Ferrero v. Best Modular Homes, Inc.

In an action to recover damages for wrongful death, etc., the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Brennan, J.), dated February 9, 2006, as denied her motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law § 240 (1) and § 241 (6) insofar as asserted against the defendant and third-party plaintiff Best Modular Homes, Inc., denied her cross motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 200, 240 (1), and § 241 (6) insofar as asserted against the defendants and third-party defendants Michael Bellomo and Amy Bellomo, granted that branch of the motion of the defendants and third-party defendants Michael Bellomo and Amy Bellomo which was for summary judgment dismissing the complaint insofar as asserted against them, and granted that

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The defendants Michael Bellomo and Amy Bellomo (hereinafter collectively the Bellomos), were the owners of property located at 48 Pleasant Avenue, in Port Washington, on which a modular, one-family home was to be installed and constructed. The Bellomos contracted with the defendant and third-party plaintiff, Best Modular Homes, Inc. (hereinafter Best Modular), to lay the foundation, and install the siding and sheetrock. Thereafter, Best Modular retained the defendant and third-party defendant Lawn Ranger, Inc., doing business as K.O. Property Management (hereinafter Lawn Ranger), to remove trees, tree stumps, and perform land excavation. The plaintiff’s decedent was employed by Lawn Ranger. On November 25, 2002, at approximately 2:30 p.m., the decedent fell to his death while cutting a tree with a chainsaw from about 10 to 20 feet above ground on a ladder which he had brought to the site. The plaintiff then commenced this action alleging violations of Labor Law §§ 200, 240 (1), and § 241 (6).

The Supreme Court correctly granted that branch of Best Modular’s separate cross motion which was for summary judgment dismissing the Labor Law § 240 (1) cause of action insofar as asserted against it, as the decedent was not engaged in an enumerated activity at the time of the accident (see Labor Law § 240 [1]).

An owner of a one- or two-family dwelling is exempt from liability under Labor Law § 240 (1) and § 241 (6) unless he or she directed or controlled the work being performed (see Murphy v Sawmill Constr. Corp., 17 AD3d 422 , 424 [2005]; Stejskal v Simons, 309 AD2d 853 , 854 [2003], affd 3 NY3d 628 [2004]). The phrase “direct and 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’ ” (Siconolfi v Crisci, 11 AD3d 600 , 601 [2004], quoting Mayen v Kalter, 282 AD2d 508 , 509 [2001]). There is no indication in the record that the Bellomos ever gave any instructions or directions to the decedent, or that they controlled the method or manner of his work. Michael Bellomo was not at the site on the day of the accident, and Amy Bellomo testified at her deposition that she and the decedent only spoke to exchange greetings. Further, it

Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 , 877 [1993]). “ ‘An implicit precondition to this duty “is that the party charged with that responsibility have the authority to control the activity bringing about the injury” ’ ” (Reilly v Newireen Assoc., 303 AD2d 214 , 219 [2003], quoting Comes at 877, quoting Russin v Louis N. Picciano & Son, 54 NY2d 311 , 317 [1981]; see Carballo v 444 E. 87th St. Owners Corp., 14 AD3d 526 [2005]). Where the alleged defect or dangerous condition arises from the subcontractor’s methods and the owner or general contractor exercise no supervisory control over the operation, no liability attaches to the owner or general contractor under the common law or under Labor Law § 200 (see Comes v New York State Elec. & Gas Corp., supra; Lombardi v Stout, 80 NY2d 290 , 295 [1992]; Reilly v Newireen Assoc., supra; Rosenberg v Eternal Mems., 291 AD2d 391 , 392 [2002]; Mas v Kohen, 283 AD2d 616 , 617 [2001]).

The decedent’s accident was sustained as a result of the manner in which the tree removal work was performed, rather than as a result of a dangerous condition at the site (see Kobeszko v Lyden Realty Invs., 289 AD2d 535 , 536 [2001]; Giambalvo v Chemical Bank, 260 AD2d 432 , 433 [1999]). In response to the prima facie showing of entitlement to judgment as a matter of

Labor Law § 241 (6) imposes a “nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” (Comes v New York State Elec. & Gas Corp., supra at 878; see Giza v New York City School Constr. Auth., 22 AD3d 800 , 801 [2005]), “even in the absence of control or supervision of the worksite” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 , 348-349 [1998]; see Bradley v Morgan Stanley & Co., Inc., 21 AD3d 866 , 868 [2005]). To support a cause of action pursuant to Labor Law § 241 (6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code provision which sets forth specific safety standards (see Plass v Solotoff, 5 AD3d 365 , 367 [2004]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 , 503-505 [1993]). In addition, the provision must be applicable to the facts of the case (see Singleton v Citnalta Constr. Corp., 291 AD2d 393 , 394 [2002]). The plaintiff alleged a violation of an Industrial Code regulation sufficient to support her Labor Law § 241 (6) cause of action (see 12 NYCRR 23-1.21 [b] [4] [iv]; Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173 , 176 [2004]). The Supreme Court, however, properly denied that branch of the plaintiffs cross motion which was for summary judgment on the issue of liability on that cause of action