PAVON v. KORAL

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Jose PAVON, appellant, v. Yossef KORAL, respondent, et al., defendants (and a third-party action).

Decided: January 29, 2014

PETER B. SKELOS, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ. Hecht Kleeger Pintel & Damashek (Ephrem J. Wertenteil, New York, N.Y., of counsel), for appellant. Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), entered March 26, 2012, which granted the motion of the defendant Yossef Koral for summary judgment dismissing the complaint insofar as asserted against him, and denied the plaintiff's cross motion for summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1).

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion of the defendant Yossef Koral which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against him and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff, who was employed by a roofing contractor in connection with the renovation of a single-family residence owned by the defendant Yossef Koral, was injured when he fell from an unsecured ladder. He subsequently commenced this action, asserting causes of action alleging, among other things, violations of Labor Law §§ 240(1) and 241(6).

The Supreme Court erred in granting those branches of Koral's motion which were for summary judgment dismissing the causes of action based upon Labor Law §§ 240(1) and 241(6) insofar as asserted against him. “Labor Law § 240(1) and § 241(6) contain identical language exempting from the statutes owners of one and two-family dwellings who contract for but do not direct or control the work” (Chowdhury v. Rodriguez, 57 A.D.3d 121, 126, 867 N.Y.S.2d 123 [internal quotation marks omitted] ). This homeowner's exemption “was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability” (Acosta v. Hadjigavriel, 18 A.D.3d 406, 406, 794 N.Y.S.2d 445). Here, there remain triable issues of fact as to whether Koral, who owned real estate development businesses, exercised the requisite degree of direction and control over the renovation of his home to impose liability under Labor Law §§ 240(1) and 241(6) (see Szczepanski v. Dandrea Const. Corp., 90 A.D.3d 642, 644, 934 N.Y.S.2d 432; Rodriguez v. Gany, 82 A.D.3d 863, 864–865, 918 N.Y.S.2d 187; Zamora v. Frantellizzi, 45 A.D.3d 580, 581, 846 N.Y.S.2d 196; Ryba v. Almeida, 44 A.D.3d 740, 740–741, 843 N.Y.S.2d 388; Boccio v. Bozik, 41 A.D.3d 754, 755, 839 N.Y.S.2d 525). Contrary to Koral's contention, the plaintiff's brief on appeal sufficiently placed the dismissal of the causes of action under both Labor Law §§ 240(1) and 241(6) before this Court.

Contrary to the plaintiff's contention, the Supreme Court properly denied his cross motion for summary judgment on the issue of liability on his cause of action pursuant to Labor Law § 240(1).

The plaintiff's remaining contentions are without merit.

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