Venter v. Cherkasky

• Citation: 200 A.D.3d 932,159 N.Y.S.3d 487
• Decision Date: 15 December 2021
• Docket Number: 2018-02898,Index No. 8927/15
• Parties: Laszlo VENTER, appellant, v. Michael CHERKASKY, et al., respondents.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 932

159 N.Y.S.3d 487

Laszlo VENTER, appellant,

v.Michael CHERKASKY, et al., respondents.

2018-02898

Index No. 8927/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 12, 2021

December 15, 2021

Lipsig Shapey Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Jillian Rosen, Christopher Soverow, and Sanford Hausler ], of counsel), for appellant.

Cuomo, LLC, Mineola, NY (Matthew A. Cuomo of counsel), for respondents.

SYLVIA O. HINDS–RADIX, J.P., COLLEEN D. DUFFY, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), entered January 26, 2018. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is denied.

The plaintiff was employed as a painter by L & T Finishing, Inc., a company hired by the defendants to paint and re-finish cabinets and a kitchen island at their home. The plaintiff sustained injuries when an explosion occurred while he was applying lacquer thinner to remove paint from the kitchen island. The plaintiff commenced this action to recover damages for his injuries, asserting causes of action alleging violations of Labor Law §§ 241(6) and 200 and common-law negligence. The defendants moved for summary judgment dismissing the Labor Law § 241(6) cause of action on the ground that they were entitled to the homeowner's exemption from liability, and the causes of action pursuant to Labor Law § 200 and common-law negligence on the ground that the defendants did not supervise the method or manner of the plaintiff's work. The Supreme Court granted the motion, and the plaintiff appeals.

Owners of one- or two-family dwellings are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed (see Bulux v. Moran, 189 A.D.3d 761, 762, 135 N.Y.S.3d 148 ; Salgado v. Rubin, 183 A.D.3d 617, 618, 123 N.Y.S.3d 153 ). The phrase "direct or control," as used in Labor Law § 241(6), "is construed strictly and refers to the situation where the owner supervises the method and manner of the work" ( Bulux v. Moran, 189 A.D.3d at 762, 135 N.Y.S.3d 148 [internal quotation marks omitted]; see Salgado v. Rubin, 183 A.D.3d at 618, 123 N.Y.S.3d 153 ; Lazo v. Ricci, 178 A.D.3d 811, 811–812, 115 N.Y.S.3d 424 ). "[I]n ascertaining whether a particular homeowner's actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee" ( Rajkumar v. Lal, 170 A.D.3d 761, 762, 95 N.Y.S.3d 267 [internal quotation marks omitted]; see Wadlowski v. Cohen, 150 A.D.3d 930, 931, 55 N.Y.S.3d 279 ).

Here, the defendants failed to establish, prima facie, that they did not direct or control the method and manner of the plaintiff's work. The plaintiff testified at his deposition that the defendant Betsy Cherkasky instructed him as to which renovation work to perform and the manner in which it was to be done. Specifically, at the time of the accident, the plaintiff was applying lacquer thinner to the kitchen island, as opposed to sanding off the paint as the plaintiff had done to kitchen cabinets on the days prior to the accident, because Betsy told him to use that product, as she did not want any more dust. Accordingly, the defendants failed to eliminate all triable issues of fact as to whether they directed or controlled the injury-producing method of work and failed to establish, prima facie, their entitlement to the homeowner exemption of Labor Law § 241(6) (see Boccio v. Bozik, 41 A.D.3d 754, 755, 839 N.Y.S.2d 525 ; Garcia v. Martin, 285 A.D.2d 391, 392–393, 728 N.Y.S.2d 455 ; Chura v. Baruzzi, 192 A.D.2d 918, 919, 596 N.Y.S.2d 592 ; cf. Jumawan v. Schnitt, 35 A.D.3d 382, 383, 825 N.Y.S.2d 728 ). Although the defendants submitted affidavits from themselves and Laszlo Terjeki, the principal of plaintiff's employer, stating that the defendants did not give direction to the plaintiff as to how he should perform the work and that any directions were given by Terjeki, these merely created a triable issue of fact. Furthermore, a report from the Occupational Safety and Health Administration (hereinafter OSHA) failed to eliminate all triable issues of fact as to whether the defendants directed or controlled the injury-producing work.

Moreover, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action. " Labor Law § 200 is a codification of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place to work" ( Modugno v. Bovis Lend Lease Interiors, Inc., 184 A.D.3d 820, 822, 124 N.Y.S.3d 557 ; see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068 ; Medina–Arana v. Henry St. Prop. Holdings, LLC, 186 A.D.3d 1666, 1668, 131 N.Y.S.3d 110 ). "Cases involving Labor Law § 200 fall into two broad categories" ( Medina–Arana v. Henry St. Prop. Holdings, LLC, 186 A.D.3d at 1668, 131 N.Y.S.3d 110 ; see Modugno v. Bovis Lend Lease Interiors, Inc., 184 A.D.3d at 822, 124 N.Y.S.3d 557 ). "The first category involves worker injuries arising out of alleged dangerous or defective conditions on the premises where the work is performed" ( Modugno v. Bovis Lend Lease Interiors, Inc., 184 A.D.3d at 822, 124 N.Y.S.3d 557 ; see Medina–Arana v. Henry St. Prop. Holdings, LLC, 186 A.D.3d at 1668, 131 N.Y.S.3d 110 ). "Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident" ( Medina–Arana v. Henry St. Prop. Holdings, LLC, 186 A.D.3d at 1668, 131 N.Y.S.3d 110 [internal quotation marks omitted]; see Modugno v. Bovis Lend Lease Interiors, Inc., 184 A.D.3d at 822, 124 N.Y.S.3d 557 ). The second category "involves injuries arising from the method and manner of the work" ( Modugno v. Bovis Lend Lease Interiors, Inc., 184 A.D.3d at 822, 124 N.Y.S.3d 557 ; see Medina–Arana v. Henry St. Prop. Holdings, LLC, 186 A.D.3d at 1668, 131 N.Y.S.3d 110 ). "[W]here a claim arises out of alleged dangers or defects in the means and methods of the work, an owner may be held liable for...