THOMPSON v. MAROTTA

Reset A A Font size: Print

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

Walter THOMPSON and Lori Thompson, Respondents, v. Thomas MAROTTA, Appellant.

Decided: December 31, 1998

Present:  GREEN, J.P., WISNER, HAYES, BALIO and FALLON, JJ. Saperston and Day, P.C. by John Stanton, Jr., Buffalo, for Defendant-Appellant. Feuerstein & Smith, L.L.P. (David Smith, of counsel), Buffalo, for Plaintiffs-Respondents.

 Walter Thompson (plaintiff) sustained injuries when he fell from a ladder while painting a house owned by defendant, his landlord.   Supreme Court properly granted plaintiffs' motion for partial summary judgment on liability under Labor Law § 240(1).   We reject defendant's contention that plaintiff was not an employee entitled to protection under Labor Law § 240(1).   Plaintiff asked defendant if he could move into one of defendant's rental properties, explaining that the Department of Social Services would pay the rent within 60 to 90 days and that he could not provide a security deposit.   Defendant allowed plaintiff and his family to move into the house on the condition that plaintiff paint the house.   Plaintiff was fulfilling his obligation when he was injured.   The Department of Social Services eventually paid defendant for plaintiffs' rent, retroactive to the date on which plaintiffs moved in.   The court properly determined that plaintiff was not acting as a volunteer but instead was employed by defendant (see, Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577, 561 N.Y.S.2d 892, 563 N.E.2d 263;  cf., Howerter v. Dugan, 232 A.D.2d 524, 525, 649 N.Y.S.2d 32).

 We reject defendant's contention that the doctrine of unclean hands applies to this case.   Even if the failure of plaintiff to report compensation on his application for social services benefits was unconscionable, such conduct was not “ ‘directly related to the subject matter in litigation’ ” (Lowe v. Quinn, 27 N.Y.2d 397, 401, 318 N.Y.S.2d 467, 267 N.E.2d 251;  see, Clifton Country Rd. Assocs. v. Vinciguerra, 195 A.D.2d 895, 896, 600 N.Y.S.2d 982, lv. denied 82 N.Y.2d 664, 610 N.Y.S.2d 152, 632 N.E.2d 462).

The court properly denied that part of defendant's cross motion for summary judgment dismissing the Labor Law § 200 claim and negligence cause of action.   Defendant did not meet his initial burden of establishing the absence of a triable issue of fact.

 The court erred, however, in denying that part of defendant's cross motion for summary judgment dismissing the Labor Law § 241(6) claim.   The violations of 12 NYCRR 23-1.5 alleged by plaintiffs do not support a Labor Law § 241(6) claim because they are general provisions and do not mandate compliance with concrete specifications (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Basile v. ICF Kaiser Engrs. Corp., 227 A.D.2d 959, 643 N.Y.S.2d 854;  McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 878, 629 N.Y.S.2d 358).   The additional violations of the Industrial Code, raised for the first time by plaintiffs on appeal, are not properly before us (see, Phelan v. State of New York, 238 A.D.2d 882, 883, 661 N.Y.S.2d 109, lv. denied 90 N.Y.2d 812, 666 N.Y.S.2d 100, 688 N.E.2d 1382).

We modify the order, therefore, by granting in part defendant's cross motion and dismissing the Labor Law § 241(6) claim.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: