SAVERINO v. Trieste Construction Corp., Third-Party Defendant. (2003)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Belen, J.), dated May 15, 2002, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the plaintiffs' contention, the Supreme Court properly exercised its discretion in allowing the defendant homeowners to serve an untimely motion for summary judgment (see Darby v. Avis Rent A Car Sys., 289 A.D.2d 191, 733 N.Y.S.2d 689;  Samuel v. A.T.P. Dev. Corp., 276 A.D.2d 685, 686, 714 N.Y.S.2d 729;  Goodman v. Gudi, 264 A.D.2d 758, 695 N.Y.S.2d 576;  Rossi v. Arnot Ogden Med. Ctr., 252 A.D.2d 778, 676 N.Y.S.2d 699).

 It is well settled that an owner of a one- or two-family dwelling is subject to liability under Labor Law §§ 240(1) and 241(6) only if he or she directed or controlled the work being performed (see Garcia v. Petrakis, 306 A.D.2d 315, 760 N.Y.S.2d 551;  Duarte v. East Hills Constr. Corp., 274 A.D.2d 493, 494, 711 N.Y.S.2d 182;  Lang v. Havlicek, 272 A.D.2d 298, 707 N.Y.S.2d 642;  Kolakowski v. Feeney, 204 A.D.2d 693, 612 N.Y.S.2d 243).  “The phrase direct or control is construed strictly and refers to the situation where the owner supervises the method and manner of the work” (Kolakowski v. Feeney, supra at 693, 612 N.Y.S.2d 243).   In this case, there is no evidence that the defendant homeowners directed or controlled the work being performed on their two-family house.   Accordingly, the defendants were entitled to summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action.

 Additionally, summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action was properly granted. For an owner to be liable for common-law negligence or pursuant to Labor Law § 200, the plaintiff must show that the owner supervised or controlled the work, or had actual or constructive notice of the unsafe condition causing the accident (see Garcia v. Petrakis, supra;  Duarte v. East Hills Constr. Corp., supra;  Charles v. City of New York, 227 A.D.2d 429, 430, 642 N.Y.S.2d 690).   Upon the defendants' prima facie showing that they did not supervise or control the injured plaintiff's work and that they had no actual or constructive notice of the alleged defect that caused his accident, the plaintiffs failed to raise a triable question of fact.