MOROCHO v. Luigia Ricci, respondent.

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

Jose Telmo MOROCHO, appellant, v. MARINO ENTERPRISES CONTRACTING CORP., et al., defendants, Luigia Ricci, respondent.

Decided: August 25, 2009

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and L. PRISCILLA HALL, JJ. Bornstein & Emanuel, P.C. (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y., of counsel), for appellant. Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao and Vinai C. Vinlander of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered June 17, 2008, which granted the motion of the defendant Luigia Ricci for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured while working on a kitchen renovation project at a one-family home owned by the defendant Luigia Ricci, when a power saw he was using to cut a kitchen cabinet recoiled and struck him in the head and face.   The plaintiff's employer, the defendant Santo Marino, lived in the home with Ricci's daughter and supervised the renovation project.   After the Supreme Court entered a default judgment against Marino and his contracting companies, Ricci moved for summary judgment dismissing the complaint insofar as asserted against her.

Owners of one- and two-family dwellings who do not direct or control the work being performed are statutorily exempt from liability under Labor Law § 241(6) (see Bartoo v. Buell, 87 N.Y.2d 362, 367, 639 N.Y.S.2d 778, 662 N.E.2d 1068;  Cannon v. Putnam, 76 N.Y.2d 644, 563 N.Y.S.2d 16, 564 N.E.2d 626;  Chowdhury v. Rodriguez, 57 A.D.3d 121, 126, 867 N.Y.S.2d 123).   Ricci made a prima facie showing that she was entitled to the protection of the homeowner's exemption by submitting evidence demonstrating that she neither directed nor controlled the work being performed (see Reilly v. Loreco Constr., 284 A.D.2d 384, 726 N.Y.S.2d 142;  Slettene v. Ginsburg, 257 A.D.2d 656, 684 N.Y.S.2d 296;  Jenkins v. Jones, 255 A.D.2d 805, 680 N.Y.S.2d 307;  Lane v. Karian, 210 A.D.2d 549, 619 N.Y.S.2d 796).   In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Contrary to the plaintiff's contention, the fact that Ricci's daughter lived in the home and paid the mortgage and taxes on the property did not cause Ricci to lose the protection of the exemption, as the arrangement served no commercial purpose (see Thompson v. Geniesse, 62 A.D.3d 541, 880 N.Y.S.2d 19;  cf. Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117;  Van Amerogen v. Donnini, 78 N.Y.2d 880, 882, 573 N.Y.S.2d 443, 577 N.E.2d 1035).   Additionally, the renovations, which included the installation of a new kitchen floor and refrigerator, were directly related to the daughter's residential use of the home (see Bartoo v. Buell, 87 N.Y.2d at 368, 639 N.Y.S.2d 778, 662 N.E.2d 1068;  Umanzor v. Charles Hofer Painting & Wallpapering, Inc., 48 A.D.3d 552, 852 N.Y.S.2d 205;  Ramirez v. Begum, 35 A.D.3d 578, 829 N.Y.S.2d 117).

Furthermore, since the accident arose from the means and methods of the plaintiff's work, and Ricci did not exercise any supervision or control over the work (see Slettene v. Ginsburg, 257 A.D.2d 656, 684 N.Y.S.2d 296;  Jenkins v. Jones, 255 A.D.2d 805, 680 N.Y.S.2d 307), she was not liable under the common law or Labor Law § 200 for failure to provide a reasonably safe place to work (see Lombardi v. Stout, 80 N.Y.2d at 294-295, 590 N.Y.S.2d 55, 604 N.E.2d 117;  Small v. Gutleber, 299 A.D.2d 536, 751 N.Y.S.2d 49).

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