JAGDEO v. BORDEN HOUSE CONDOMINIUM (2025)

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered April 30, 2023, which, to the extent appealed from as limited by the briefs, granted defendants’ motions for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims as against all defendants and the Labor Law § 200 and common-law negligence claims as against defendants Suiry Caceres, Borden House Condominium, and Debra Mykrantz, as administrator of the estate of Charles Low, unanimously affirmed, on the law, without costs.  Cross-appeal taken by third-party defendant-respondent-appellant Taocon, Inc. unanimously dismissed, without costs, as taken by a party not aggrieved by the order.

Plaintiff was allegedly injured when a coworker, who was on a ladder installing metal “Z clips,” dropped the clips on plaintiff's head while they were working on a renovation of a single-family apartment in a condominium building.  Plaintiff was not wearing a hard hat.

The court properly dismissed the Labor Law §§ 240(1) and 241(6) claims as against Caceres and Michael Novogratz.  Under the homeowner's exemption, “owners of one and two-family dwellings who contract for but do not direct or control the work” are exempt from both statutes (Labor Law §§ 240[1], 241[6];  see Affri v. Basch, 13 N.Y.3d 592, 595–596, 894 N.Y.S.2d 370, 921 N.E.2d 1034 [2009]).  Defendants Caceres and Novogratz established that they owned the apartment through their answer and testimony (see Madison 96th Assoc., LLC v. 17 E. 96th Owners Corp., 120 A.D.3d 409, 410, 990 N.Y.S.2d 811 [1st Dept. 2014];  Patino v. Drexler, 116 A.D.3d 534, 534–535, 984 N.Y.S.2d 38 [1st Dept. 2014]).  As owners, Caceres and Novogratz demonstrated prima facie entitlement to the homeowners’ exception by showing that they did not direct or control plaintiff's work (Ramirez v. Hansum, 202 A.D.3d 605, 606, 159 N.Y.S.3d 832 [1st Dept. 2022]).  Plaintiff's hearsay evidence in opposition, that Caceres gave his supervisors instructions, was insufficient to raise a triable issue of fact (see Clarke v. Empire Gen. Contr. & Painting Corp., 189 A.D.3d 611, 612, 139 N.Y.S.3d 152 [1st Dept. 2020];  Thompson v. Geniesse, 62 A.D.3d 541, 542, 880 N.Y.S.2d 19 [1st Dept. 2009]).

The court properly dismissed the Labor Law §§ 240(1) and 241(6) claims as against Borden House Condominium and Mykrantz (collectively, Condo Defendants).  The Condo Defendants established that plaintiff's accident occurred within the apartment and that plaintiff was not working on common elements of the building (see Guryev v. Tomchinsky, 20 N.Y.3d 194, 200, 957 N.Y.S.2d 677, 981 N.E.2d 273 [2012]).  Condo Defendants also established that they did not have authority to supervise or control the job and thus were not liable as an agent of the owner under sections 240(1) and 241(6) (see Bautista v. Archdiocese of N.Y., 164 A.D.3d 450, 451, 84 N.Y.S.3d 47 [1st Dept. 2018]).

The court properly dismissed the Labor Law § 200 and common-law negligence claims as against Caceres, since there are no issues of fact as to whether she directed or controlled plaintiff's work (see Thompson, 62 A.D.3d at 542, 880 N.Y.S.2d 19).  Likewise, the court properly dismissed those claims as against Condo Defendants because they did not exercise supervisory control over the activity that brought about plaintiff's injury (see Bautista, 164 A.D.3d at 451, 84 N.Y.S.3d 47).

In dismissing plaintiff's complaint against all defendants, the court necessarily dismissed the third-party complaint against Taocon as academic (see Imtanios v. Goldman Sachs, 44 A.D.3d 383, 385–385, 843 N.Y.S.2d 569 [1st Dept. 2007], lv dismissed 9 N.Y.3d 1028, 852 N.Y.S.2d 11, 881 N.E.2d 1198 [2008]).  Consequently, Taocon is not aggrieved by the court's order (see Boukari v. Schwartzberg Assoc., LLC, 225 A.D.3d 417, 417–418, 206 N.Y.S.3d 296 [1st Dept. 2024]).

We have considered the parties’ remaining arguments and find them unavailing.