LOPEZ v. Jevgenija Lobica, respondent. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Wayne Saitta, J.), dated August 9, 2023.  The order, insofar as appealed from, denied the plaintiff's cross-motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant Jevgenija Lobica.

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

The plaintiff allegedly was injured while working on a construction project located at premises owned by the defendant Jevgenija Lobica (hereinafter the defendant).  The plaintiff commenced this action against the defendant, among others, asserting, inter alia, causes of action alleging violations of Labor Law §§ 240(1) and 241(6).  The plaintiff cross-moved for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant.  In an order dated August 9, 2023, the Supreme Court, among other things, denied the plaintiff's cross-motion.  The plaintiff appeals.  We affirm, albeit on different grounds from those relied upon by the Supreme Court.

“To successfully assert a cause of action under Labor Law § 240(1), a plaintiff must establish that he or she was injured during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ ” (Goodwin v. Dix Hills Jewish Ctr., 144 A.D.3d 744, 745–746, 41 N.Y.S.3d 104 [internal quotation marks omitted], quoting Enos v. Werlatone, Inc., 68 A.D.3d 713, 714, 890 N.Y.S.2d 109;  see Labor Law § 240[1]).  “ ‘[A]ltering’ within the meaning of Labor Law § 240(1) requires making a significant physical change to the configuration or composition of the building or structure” (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [emphasis omitted]).  “By contrast, ‘routine maintenance and decorative modifications’ do not constitute the ‘altering’ of a building or structure” (Goodwin v. Dix Hills Jewish Ctr., 144 A.D.3d at 746, 41 N.Y.S.3d 104, quoting Joblon v. Solow, 91 N.Y.2d at 465, 672 N.Y.S.2d 286, 695 N.E.2d 237).  “Owners of a one- or two-family dwelling are exempt from liability under Labor Law § [ ] 240 ․ unless they directed or controlled the work being performed” (Ramirez v. Begum, 35 A.D.3d 578, 578, 829 N.Y.S.2d 117).

Here, the plaintiff established, prima facie, through his submission of the deed to the premises, that the premises was a three-unit building and therefore the exemption was not available to the defendant (see Cannon v. Putnam, 76 N.Y.2d 644, 650, 563 N.Y.S.2d 16, 564 N.E.2d 626;  Manfredo v. Marvin & Mario Constr., Inc., 216 A.D.3d 634, 634–635, 187 N.Y.S.3d 776 ).  Contrary to the determination of the Supreme Court, the defendant failed to raise a triable issue of fact regarding its contention that the premises, which consisted of two residential units and a commercial unit used as a daycare center, was a one- or two-family dwelling that would be exempt from liability under Labor Law § 240 (see Assevero v. Hamilton & Church Props., LLC, 131 A.D.3d 553, 557, 15 N.Y.S.3d 399).

The plaintiff further established, prima facie, that the work he performed was an alteration protected by Labor Law § 240(1) (see Goodwin v. Dix Hills Jewish Ctr., 144 A.D.3d at 745–746, 41 N.Y.S.3d 104).  However, the defendant raised triable issues of fact as to whether the work was actually a decorative modification and therefore not protected by Labor Law § 240(1).  Accordingly, the plaintiff was not entitled to summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant.

The defendant's remaining contention is not properly before this Court.

CHAMBERS, J.P., FORD, TAYLOR and LOVE, JJ., concur.