BAUTISTA v. ARCHDIOCESE OF NEW YORK (2018)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 15, 2017, which denied plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and defendants' cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant defendants' motion, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.  Order, same court and Justice, entered August 12, 2016, which denied defendants' motion for a default judgment against third-party defendant Richard Monagh d/b/a Harbor Roofing, unanimously reversed, on the law, without costs, and the motion granted.  Appeal from order, same court and Justice, entered June 10, 2016, which granted plaintiff's motion to sever the third-party action from the main action, unanimously dismissed, without costs, as academic.

Defendant Catholic Church of Christ the King made a prima facie showing that the accident in which plaintiff was injured falls within the exemption to Labor Law § 240(1) and Labor Law § 241(6) for “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law § 240[1];  Labor Law § 241).  Plaintiff was repairing a detached garage associated with a church rectory used for both residential and church purposes (see Bartoo v. Buell, 87 N.Y.2d 362, 639 N.Y.S.2d 778, 662 N.E.2d 1068 [1996];  Muniz v. Church of Our Lady of Mt. Carmel, 238 A.D.2d 101, 655 N.Y.S.2d 38 [1st Dept. 1997], lv denied 90 N.Y.2d 804, 661 N.Y.S.2d 180, 683 N.E.2d 1054 [1997] ).  Moreover, the certificate of occupancy indicates that the rectory constituted a dwelling and a private garage (see Thompson v. Geniesse, 62 A.D.3d 541, 880 N.Y.S.2d 19 [1st Dept. 2009] ).  Defendant's failure to plead this affirmative defense in its answer does not mandate the denial of its motion, since plaintiff was not surprised by the defense, and fully opposed the motion (see CPLR 3018[b];  Hansen & Co. v. Everlast World's Boxing Headquarters Corp., 2 A.D.3d 266, 768 N.Y.S.2d 329 [1st Dept. 2003], lv denied 2 N.Y.3d 702, 778 N.Y.S.2d 461, 810 N.E.2d 914 [2004];  see also Florio v. Fisher Dev., 309 A.D.2d 694, 696, 765 N.Y.S.2d 879 [1st Dept. 2003] ).

Plaintiff failed to raise issues of fact as to the applicability of the homeowner exemption.  His assertion that the garage was exclusively restricted to use by teachers at an elementary school owned by the church is unsupported by the record.

Defendant Archdiocese of New York established that it did not have the authority to supervise or control the job, and thus was not liable as an agent of the owner under Labor Law § 240(1) and Labor Law § 241(6) (see Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 N.Y.3d 280, 293, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003];  Lopez v. Dagan, 98 A.D.3d 436, 949 N.Y.S.2d 671 [1st Dept. 2012], lv denied 21 N.Y.3d 855, 2013 WL 1876504 [2013] ).

The Labor Law § 200 and common-law negligence claims should be dismissed because plaintiff's fall from scaffolding involved the means and methods of his work, which were supervised and controlled solely by his employer (see Ciechorski v. City of New York, 154 A.D.3d 413, 414, 62 N.Y.S.3d 60 [1st Dept. 2017];  Alvarado v. French Council LLC, 149 A.D.3d 581, 50 N.Y.S.3d 280 [1st Dept. 2017] ).

Defendants are entitled to a default judgment against third-party defendant Richard Monagh d/b/a Harbor Roofing, against whom they asserted contractual indemnification claims, which include claims for attorneys' fees, since they established proper service and made a prima facie showing of their entitlement to judgment (see CPLR 3215;  see also Ostroy v. Six Sq. LLC, 74 A.D.3d 693, 902 N.Y.S.2d 823 [1st Dept. 2010] ).

In view of the foregoing, we need not reach the parties' remaining arguments.

The Decision and Order of this Court entered herein on May 3, 2018 (161 A.D.3d 453, 73 N.Y.S.3d 884 [1st Dept. 2018] ) is hereby recalled and vacated (see M–2969 decided simultaneously herewith).