Perez v Sapra

[*1] Perez v Sapra 2009 NY Slip Op 51177(U) [23 Misc 3d 1137(A)] Decided on June 10, 2009 Civil Court Of The City Of New York, Kings County Chan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 10, 2009
Civil Court of the City of New York, Kings County

Alberto Perez, Plaintiff,

against

Neena Sapra a/k/a Neena Ahlywalia, Defendant.



KTS 30071/2007



Attorney for Plaintiff: George D. Silva for Bisogno & Meyerson, LLP

Attorney for Defendant: Jeffrey J. Harris for Robin, Harris, King & Fodera

Margaret A. Chan, J.

Upon the foregoing cited papers and after oral argument the Decision/Order on defendant's motion for summary judgment is as follows:

In this action to recover personal injury damages, plaintiff, Alberto Perez, initially filed suit in Kings County Supreme Court and the matter was transferred to the Civil Court in 2007 pursuant to CPLR § 325(d). Plaintiff brought suit under common-law negligence, Labor Law §§ [*2]200, 240, 241, and Industrial Code Rule 23 §§ 1.5, 1.6, 1.16, and 1.21. Plaintiff alleged that on August 22, 2003, he and another person were cleaning gutters on a two-family home owned by defendant Neena Sapra a/k/a Neena Ahlywalia when they both stepped onto a wooden awning abutting the roof. The awning gave way under them causing plaintiff to fall and sustain injuries. Defendant argues, inter alia, that the Labor Law precludes liability for one and two-family homeowners who do not direct or control the work being done. Defendant also argued she is exempt from common-law negligence pursuant to Labor Law § 200 as defendant had no actual or constructive notice of a dangerous condition.

Plaintiff's contention that defendant is liable under Labor Law §§ 240 and 241 fails on two grounds. First, Labor Law § 240 requires scaffolding, ladders, or other devices to give proper protection to workers engaged in "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."[FN1] Labor Law § 241 provides that all areas in which construction, excavation or demolition work is being performed shall be so constructed to provide reasonable and adequate protection and safety to workers. The Labor Law is meant to protect workers engaged in renovation, construction and demolition, but not routine cleaning activities performed by workers in a nonconstruction context (see Azad v 270 5th Realty Corp., 46 AD3d 728 [App Div, 2d Dept 2007][repairing a gutter pipe not a covered activity]; Berardi v Coney Island Ave. Realty, LLC, 31 AD3d 590 [App Div, 2d Dept 2006][gutter cleaning not a covered activity]; Garcia v Piazza, 16 AD3d 547 [App Div, 2d Dept 2005][cleaning snow not a covered activity]). Courts have consistently construed gutter cleaning in a nonconstruction contextas an activity that does not fall under the protections of the Labor Law §§ 240 or 241 (see e.g. Berardi v Coney Island Ave. Realty, LLC, supra ; Chavez v Katonah Management Group, Inc., Co., 305 AD2d 358 [App Div, 2d Dept 2003]; Pascarell v Klubenspies, 2007 WL 6001212 [Sup Ct, Rockland Cty 2007]). There is no dispute that plaintiff was engaged in cleaning the gutters on defendant's home at the time of this accident. Accordingly, this court cannot provide the protections of Labor Law §§ 240 or 241 to the case at bar and the causes of action based on those sections are dismissed.

Second, defendant is correct in arguing that she is exempt from liability under Labor Law §§ 240 and 241 because of the homeowner exemption. Owners of a one- or two-family dwellings are exempt from liability under these sections unless they directed or controlled the work being performed (see Bartoo v Buell, 87 NY2d 362, 367 [Ct App 1996]; Roach v Hernandez, 38 AD3d [App Div, 2d Dept 2007]; Miller v Shah, 3 AD3d 521, 522 [App Div, 2d Dept 2004]; Siconolfi v Crisci, 11 AD3d 600, 601 [App Div, 2d Dept 2004]). This exemption is construed very strictly in favor of homeowners because they generally do not have the business sophistication to obtain the insurance required to protect them from the absolute liability imposed by the statute (see Miller v Shah, supra ; Angelucci v Sands, 297 AD2d 764 [App Div, 2d Dept 2002]). The phrase "direct or control" is also construed strictly and refers to the situation where the owner supervises the method and manner of the work performed (see Garcia v Petrakis, 306 AD2d 315, 316 [App [*3]Div, 2d Dept 2003]; Kolakowski v Feeney, 204 AD2d 693 [App Div, 2d Dept 1994]). Defendant showed that she had no supervision or control of the work and plaintiff did not offer any contradicting facts. Therefore, defendant is exempted from liability under Labor Law §§ 240 and 241 (see Duncan v Perry, 307 AD2d 249 [App Div, 2d Dept 2003]; Decavallas v Pappantoniou, 300 AD2d 617 [App Div, 2d Dept 2002]).

Plaintiff also alleged a cause of action under Labor Law § 200, which is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work (see Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 [Ct App 1998]; Lombardi v Stout, 80 NY2d 290 [Ct App 1992]; Chowdhury v Rodriguez, 57 AD3d 121 [App Div, 2d Dept 2008]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [App Div, 2d Dept 2006]). Liability under this statute is therefore governed by common-law negligence principles (Chowdhury v Rodriguez, supra ). Labor Law § 200 has two distinct standards for determining a property owner's liability (id.). The first is the authority of the homeowner in supervising the work when plaintiff's injuries arise from defects or dangers in the methods or materials of the work (see id.; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [Ct App 1993]; Ortega v Puccia, 57 AD3d 54 [App Div, 2d Dept 2008]). The second standard is applicable to worker injuries arising out of the condition of the premises rather than the methods or manner of the work (Chowdhury v Rodriguez, supra ). In the case at bar, only the second standard is relevant. When a premises condition is at issue, a property owner is liable only when the owner created the dangerous condition causing the injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice (see Ortega v Puccia, supra ; Azad v 270 5th Realty Corp., supra ; see generally Giambalvo v Chemical Bank, 260 AD2d at 433 [App Div, 2d Dept 1999]).

Defendant demonstrated its prima facie entitlement to summary judgment dismissing the causes of action based on Labor Law § 200 and common-law negligence by demonstrating that defendant did not create or have actual or constructive knowledge of the alleged dangerous condition (see Gonzalez v Pon Lin Realty Corp., 34 AD3d 638 [App Div, 2d Dept 2006][premises owner established it had no actual or constructive notice of a dangerous condition of a staircase that a construction worker fell through while carrying building materials]; Hatfield v Bridgedale, LLC, 28 AD3d 608 [App Div, 2d Dept 2006]; Lopez v Port Auth. of NY & N.J., 28 AD3d 430 [App Div, 2d Dept 2006]). Defendant affirmed she never observed any defects to the awning nor was she ever informed of any defects of the awning. In fact, plaintiff's employee, the third-party defendant herein, built the awning in 1998 and had several opportunities to observe the condition of the awning since then. Indeed, plaintiff's own deposition testimony confirmed that the awning appeared sturdy, like new, and had no obvious defects (Plaintiff's Examination Before Trial, 2/24/06, pp 41-43). Moreover, while plaintiff argued that the awning should have been bolted rather than screwed to the house, plaintiff failed to cite to any statutory obligation to build said awning as a weight bearing surface (see generally Hyman v Queens County Bancorp, Inc., 3 NY3d 743 [Ct App 2004]; Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982 [Ct App 1993]). An awning incapable of bearing weight may not, by itself, be a dangerous condition (see generally Rodriguez v E & P Associates, 20 Misc 3d [*4]1129(A)[Sup Ct, Bronx Cty 2008][a non-load bearing window sill was not a dangerous condition]). In sum, plaintiff failed to raise a triable issue of fact concerning whether defendant had any knowledge concerning the allegedly dangerous condition of the awning. Accordingly, the court grants defendant's branch of the motion for summary judgment dismissing causes of action under Labor Law § 200 and common-law negligence.

Finally, plaintiff alleged defendant violated Industrial Code Rule 23 §§ 1.5, 1.7, 1.16, and 1.21. The Industrial Code includes "maintenance" within its definition of construction work that are covered by the Code, however this is contrary to the activities protected under Labor Law § 241. The Court of Appeals addressed this inconsistency in Nagel v D & R Realty Corp.,99 NY2d 98 (2002), citing Joblon v Solow, 91 NY2d 457 (1998), when it held that the Industrial Code definition of construction work must be construed consistently with the understanding of Labor Law § 241 that covers industrial accidents occurring in the context of construction, demolition and excavation; it also excluded routine maintenance or cleaning, as discussed infra. Given the holding of the Court of Appeals in Nagel, this court cannot construe gutter cleaning as a protected activity within the provisions of the Industrial Code. Moreover, contrary to the plaintiff's contentions, Industrial Code §§ 1.16, and 1.21 are inapplicable to the facts of this case as those regulations are intended to prevent accidents or to protect classes of persons other than those involved here such as those involvingsafety harnesses, lifelines, ladders and ladderways. Hence, plaintiff's final cause of action under the Industrial Code is dismissed.

Accordingly, defendant's motion for summary judgment is granted in its entirety and plaintiff's complaint is hereby dismissed.

This constitutes the decision and order of the court.

Dated: June 10, 2009__________________________

Hon. Margaret Chan

Judge, Civil Court Footnotes

Footnote 1:Plaintiff was provided with a ladder (Plaintiff's Examination Before Trial, 2/24/06, pp 44-46). Plaintiff's fellow worker who was standing on the awning clung to the ladder when the awning collapsed and avoided falling in doing so (id.).