Ortega v. Puccia

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Dillon
• Citation: Ortega v. Puccia, 57 AD3d 54, 866 N.Y.S.2d 323, 2008 NY Slip Op 8305 (N.Y. App. Div. 2008)
• Decision Date: 28 October 2008
• Docket Number: 2007-03580.
• Parties: JAVIER ALCIDES ORTEGA et al., Appellants, v. TROY PUCCIA et al., Respondents.

57 A.D.3d 54

866 N.Y.S.2d 323

2008 NY Slip Op 08305

JAVIER ALCIDES ORTEGA et al., Appellants, v. TROY PUCCIA et al., Respondents.

2007-03580.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 28, 2008.

Martin R. Munitz, P.C., New York City (Louis A. Badolato of counsel), for appellants.

Kelly, Rode & Kelly, LLP, Mineola (Loris Zeppieri of counsel), for respondents.

OPINION OF THE COURT

DILLON, J.

This appeal presents us with an occasion to discuss the precise standard that must be applied in determining summary judgment motions involving causes of action asserting violations of Labor Law § 200, when an accident arises out of the methods or manner of work at a work site rather than a dangerous or defective condition of the premises.

I. Relevant Facts

The facts underlying this appeal are fairly straightforward. The plaintiff Javier Alcides Ortega (hereinafter the plaintiff) was injured on Sunday, August 8, 2007, while performing work in the scope of his employment with Blue Bird Drywall (hereinafter Blue Bird). On the date of the accident, and for three to five days prior to the accident, the plaintiff performed his work within a single-family house in Bethpage, which was owned by the defendants Troy Puccia (hereinafter Puccia) and Stacey Puccia (hereinafter together the defendants).¹ Blue Bird had been hired by the defendants to perform drywall work on a second story that had been added to the house earlier in the year. Blue Bird's on-site supervisor, Americo Laird, brought a scaffold to the defendants' house on the first day of the drywall project, and assembled it there. The plaintiff and Puccia both testified at their depositions that they believed that the scaffold had been disassembled on the day before the accident. Their testimony also reveals that the scaffold had been reassembled at some point prior to the accident and that, in the course of reassembly, the wheels with which the scaffold had been equipped were not reattached to it. The scaffold was so large that, when fully assembled, it could not be moved through the hallways of the house.

On the morning of the accident, the plaintiff arrived at the defendants' house to continue taping the walls and ceilings. The parties disagree on what happened next. The plaintiff testified at his deposition that Puccia moved the disassembled scaffold from a bedroom to a great room, where Puccia reassembled it. He asserted that the wheels of the scaffold were attached to it, but the wheels were not locked because the locks were not working. According to the plaintiff, Puccia placed four wood blocks under the wheels to hold them in place.

In contrast, Puccia testified at his deposition that he never touched the scaffold during the days leading up to the accident, except when he slightly moved it out of his way on two occasions. He further testified that, while the wheels of the scaffold were equipped with a locking mechanism, he did not know whether it functioned properly prior to the accident. Puccia denied ever touching the scaffold or its wheels on the date of the plaintiff's accident and had no recollection of the presence of wood blocks under the scaffold's wheels at that time. Puccia did, however, recall seeing wood blocks under the scaffold's wheels on earlier occasions.

The parties agree that Puccia left the premises before the accident. The accident occurred between 10:00 A.M. and 11:00 A.M., when the plaintiff allegedly fell from the scaffold. The plaintiff had no specific recollection of his accident, remembering only that he woke up in a hospital. Puccia's wife, Stacey, who was at home at the time, heard a "boom" and found the plaintiff at the bottom of the stairs that led to the great room. Puccia believed that, while he was off-premises, the scaffold had been moved to a new location near the stairs of the great room.

The plaintiff commenced this action to recover damages for personal injuries sustained as a result of the defendants' alleged negligence and violations of Labor Law §§ 200, 240 and 241 (6). The plaintiff's wife, Marie Mujica, asserted a cause of action for loss of services. The defendants' answer denied the material allegations of the complaint, the parties proceeded with discovery, and the defendants thereafter moved, along with Alleyne, for summary judgment dismissing all of the claims.

The defendants argued that summary judgment was appropriate under the single-family homeowners' exemption of Labor Law §§ 240 and 241. They also contended that summary judgment was warranted as to the common-law negligence and Labor Law § 200 claims, on the grounds, inter alia, that the plaintiff was in "sole control" of the scaffold at the time of the occurrence, their actions or omissions thus were not proximately related to the accident, and there was no evidence that any scaffold defect was proximately related to the plaintiff's fall.

In opposition, the plaintiff argued that his testimony regarding Puccia's assembly and bracing of the scaffold before the accident raised triable issues of fact as to the defendants' supervision and control of the work, requiring the denial of the defendants' motion for summary judgment dismissing all of the claims.

The Supreme Court, in an order entered February 20, 2007, found that there was no evidence that the defendants exercised supervision or control over the work, and that any dangerous condition arose out of the contractor's own methods. Absent supervision or control over the work, the Supreme Court held that the defendants were entitled to invoke the single-family homeowners' exemption of Labor Law §§ 240 and 241, and that the defendants were not liable under Labor Law § 200 or for common-law negligence as a matter of law. The court thus granted the defendants' motion for summary judgment dismissing the complaint. For the reasons set forth below, we affirm.

II. Labor Law § 240

Labor Law § 240 requires contractors and property owners, engaged in, among other things, the construction, demolition, or repair of buildings or structures, to furnish or erect scaffolding, ladders, pulleys, ropes, and other safety devices, which must be constructed, placed, or operated as to give proper protection for workers (see Labor Law § 240 [1]). The statute is intended to protect workers from gravity-related occurrences stemming from the inadequacy or absence of enumerated safety devices (see Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]). The duties articulated in Labor Law § 240 are nondelegable, and liability is absolute as to the general contractor or owner when its breach of the statute proximately causes injuries (see Jock v Fien, 80 NY2d 965, 967-968 [1992]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]).

The language of Labor Law § 240 (1) expressly exempts "owners of one and two-family dwellings who contract for but do not direct or control the work." This exemption is intended to protect residential homeowners lacking in sophistication or business acumen from their failure to recognize the necessity of insuring against the strict liability imposed by the statute (see Bartoo v Buell, 87 NY2d 362, 368 [1996]; see also Cannon v Putnam, 76 NY2d 644, 649 [1990]; Mayen v Kalter, 282 AD2d 508, 509 [2001]).

As the parties seeking summary judgment, the defendants bore the initial burden of establishing their prima facie entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). In order to satisfy their prima facie burden on the basis of the "homeowners' exemption," the defendants were required to demonstrate not only that their house was a single- or two-family residence, which is not contested here, but also, that they did not "direct or control" the work being performed (Labor Law § 240 [1]; see Arama v Fruchter, 39 AD3d 678, 679 [2007]; Miller v Shah, 3 AD3d 521, 522 [2004]; Saverino v Reiter, 1 AD3d 427 [2003]; Stejskal v Simons, 309 AD2d 853, 854 [2003], affd 3 NY3d 628 [2004]). The statutory phrase "direct or control" is construed strictly and refers to situations where the owner supervises the method and manner of the work (see Boccio v Bozik, 41 AD3d 754, 755 [2007]; Arama v Fruchter, 39 AD3d at 679; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 849 [2006]; Siconolfi v Crisci, 11 AD3d 600, 601 [2004]; Miller v Shah, 3 AD3d at 522).

Here, contrary to the plaintiffs' contention, the defendants made a prima facie showing that they were entitled to the protection of the homeowners' exemption by submitting evidence demonstrating that they did not direct or control the method and manner of the work being performed (see Ferrero v Best Modular Homes, Inc., 33 AD3d at 849-850; Cardace v Fanuzzi, 2 AD3d 557, 558 [2003]). The defendants hired Blue Bird as an independent contractor, and the plaintiff's supervisor at Blue Bird was Laird. The plaintiff did not speak to the defendants other than to exchange greetings and, on one occasion, to discuss a problem with the framing of the ceiling. At the time of the occurrence, neither defendant was even present in the room where the accident occurred. Puccia's testimony that the scaffold had been moved between the time he left the premises and the time of his return is uncontradicted. The defendants' involvement with the drywall project was no more extensive than that of an ordinary homeowner who was not supervising, directing, or controlling the manner of the work. Consequently, the defendants established their prima facie entitlement to judgment as a matter of law based upon the homeowners' exemption from statutory liability (see Torres v Levy, 32 AD3d 845, 846 [2006]; Cardace v Fanuzzi, 2 AD3d at 558; Decavallas v Pappantoniou, 300 AD2d 617, 618 [2002]; Mandelos v Karavasidis, 213 AD2d 518, 519-520 [1995], mod 86 NY2d 767 [1995]; Spinillo v Strober Long Is. Bldg. Material Ctrs., 192...