Castellanos v United Cerebral Palsy Assn. of Greater Suffolk, Inc.

[*1] Castellanos v United Cerebral Palsy Assn. of Greater Suffolk, Inc. 2009 NY Slip Op 51469(U) [24 Misc 3d 1216(A)] Decided on June 12, 2009 Supreme Court, Nassau County Feinman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2009
Supreme Court, Nassau County

Mario Castellanos, Plaintiff,

against

United Cerebral Palsy Association of Greater Suffolk, Inc., Defendant.



8901/07



Valdebenito & Ardito, LLP

Gorton & Gorton LLP

Thomas Feinman, J.

The defendant, United Cerebral Palsy Association of Greater Suffolk, Inc., (hereinafter referred to as "UCP"), moves for an order pursuant to CPLR §3212 dismissing plaintiff's action against the defendant. The plaintiff submits opposition. The defendant submits a reply affirmation.

The plaintiff initiated this action against the defendant asserting violations of Labor Law §§200, 240(1), 241(6), and common-law negligence. The defendant moves for summary judgment on the grounds that the defendant neither directed or controlled the work, and that the defendant is entitled to the one-family dwelling exemption to the strict liability provisions of the Labor Law. (Labor Law §§240(1) and 241(6)). The plaintiff contends that the defendant did direct, supervise or control the work, and that the defendant, a sophisticated corporate owner who performed renovation work in furtherance of a commercial enterprise, is not entitled to the one-family dwelling exemption.

BACKGROUND[*2]

The plaintiff, employed by non-party RJD Construction, (hereinafter referred to as "RJD"), was spackling the garage ceiling using an A frame ladder owned and supplied by RJD, when he fell off the ladder at a house located at 25 Lincoln Road, Medford, New York on January 25, 2007. The plaintiff testified that one of the side supports for the ladder was broken. The defendant hired RJD to perform renovation work at the house. The plaintiff testified that he received instructions from "David", his supervisor at RJD, and his co-worker, "Miguel", who helped translate David's instructions to the plaintiff.

The Director of Facilities for UCP, Glen Gruber, testified on behalf of the defendant. Mr. Gruber testified that UCP owned the subject property on the date of loss and described the property as a ranch style house with six bedrooms, two bathrooms, a living room, dining room and garage. At the time of plaintiff's fall, the house was being renovated to accommodate its future six residents, six developmentally disabled residents. The hallways were being widened and larger bathrooms were being installed. UCP hired RJD to perform the renovations. Mr. Gruber testified that he visited the site every two weeks to check the progress, and had no discussions with RJD workers other than "hello and goodbye". Mr. Gruber provides that he did not direct, control or supervise the work performed by RJD, and that UCP did not provide any tools or ladders for the work site.

The defendant submits the affidavit of Robin Sadowski, employed by UCP. Ms. Sadowski's current title is the Associate Residential Director, the Supervisor for the Community Residential Facility located at 25 Lincoln Road, Medford, New York. Ms. Sadowski avers that the facility at the subject location now houses six separate individuals ranging from age 21 to 47, who live at the residence as a family unit. Ms. Sadowski submits that the purpose of the residence is to provide an independent home for disabled individuals, whereby each individual has their own separate bedroom. The kitchen, living room, dining room, laundry room and two bathrooms are shared by the residents. Ms. Sadowski states that UCP is a non profit organization supported by Medicare, Medicaid and Social Security benefits for the residents. UCP provides staff to the home which provide services to the residents. Ms. Sadowski avers that the staff does not live at the house.

The defendant annexes a certified copy of the Certificate of Occupancy for 25 Lincoln Road, Medford, New York, dated September 22, 1987 issued to the prior owner, Linda Konelik, which lists the home as one family dwelling. The defendant also annexes a certified copy of the Certificate of Occupancy for 25 Lincoln Road, Medford, New York, dated October 24, 2007, issued to UCP which indicates that the residence is listed as "SFD", a single family dwelling. The defendant also annexes copies of UCP correspondence forwarded to the Brookhaven Town Supervisor evidencing the defendant's intention to open the subject home. The defendant also argues that pursuant to Mental Hygiene Law §41.34(f), which states in pertinent part that a community residence established pursuant to this section "and family care homes shall be deemed a family unit for the purposes of local laws and ordinances", the subject home should be declared a single family dwelling as a matter of law.

The plaintiff, in opposition to the motion, submits that the home is not a one family dwelling within the meaning of the homeowner's exemption to Labor Law §240(1) and 241(6). The plaintiff [*3]provides that the home is one of many homes owned by UCP, to wit, one of 37 such like facilities. Furthermore, the plaintiff sets forth that the UCP is a sophisticated corporate owner comprised of a full staff, medical doctors and nurses, having corporate officers including a Chief Executive Officer, a Chief Operating Officer and a Chief Financial Officer, hardly the entity or homeowner that the Legislature had in mind in drafting the homeowner's exemption to protect owners of one and two-family dwellings who contract for, but do not control or direct work being performed at such residence.

The plaintiff refers to the same correspondence that the defendant relies upon in their moving papers, the defendant's prior correspondence to the Brookhaven Town Supervisor evidencing UCP's purpose in opening the home. The plaintiff submits that such correspondence demonstrates UCP is in the "business" of taking care of disabled individuals who suffer from multiple sclerosis and other disabilities, by providing "trained" staff on site, 24 hours a day, and seven days a week. The plaintiff sets forth that UCP operates as a business and is fully compensated for its services as it is fully funded by Medicare, Medicaid and Social Security benefits. As so, plaintiff submits, the renovation being performed was in furtherance of a commercial enterprise.

The plaintiff also submits that UCP, by Mr. Gruber, Mr. Bubalo and Mrs. Cheryl Olson from the New York State Office of Mental Retardation and Development Disability, and an architect hired by UCP, exercised supervision, direction and control of the renovations as the aforementioned visited the site every two weeks to inspect progress of the work. The plaintiff provides that UCP needed to ensure that the remodeling project was made in accordance with New York State Regulations and was progressing as planned.

DISCUSSION

Labor Law §240(1) provides, inter alia, that all contractors and owners, except owners of one and two family dwellings who contract for, but do not direct or control the work being performed at a building or structure, shall furnish or erect ladders, so as to give proper protection to a person so employed. The courts have granted an exemption from liability imposed by the Labor Law §240(1) to a homeowner who contracts for repair work, where it is clear that the property is used solely as a one or two-family dwelling, and where the homeowner does not control the work. (Cannon v. Putnam, 76 NY2d 644). "An owner of a one - or two family dwelling is exempt from liability under Labor Law §§240 and 241, unless he or she directed or controlled the work being performed." (Torres v. Levy, 32 AD3d 845; Garcia v. Petrakis, 306 AD2d 315).

The defendant argues that pursuant to Mental Hygiene Law §41.34(f), the home is a family dwelling as a matter of law and therefore the inquiry as to whether the defendant in entitled to the homeowner's exemption should end, as the defendant submits it did not direct or control the work being performed. However, the inquiry as to whether the homeowner's exemption applies does not end at the determination that the dwelling is, or is not, a one or two-family dwelling. The Court of Appeals in Cannon v. Putnam, supra, defined the test in determining whether the homeowner's exemption applied to a dwelling owner as "whether the exemption is available to an owner in a [*4]particular case turns on the site and purpose of the work, and therefore, the existence of both residential and commercial uses on a property does not automatically disqualify a dwelling owner from invoking the doctrine". Thereafter, the Court of Appeals in Bartoo v. Buell, 87 NY2d 362, found that when "an owner of a one or two-family dwelling contracts for work that directly relates to residential use of home, even if work also serves a commercial purpose, the owner is shielded by homeowner exemption from absolute liability of Labor Law". The Court in Bartoo, supra, reviewed two cases, Bartoo v. Buell and Anderson v. Flanagan. The structures being renovated were used for both commercial and residential purposes. The Court found in Bartoo, that the repair work on the roof of a barn was related to the residential use of the barn, "notwithstanding fact that homeowner leased space to others in barn since any commercial benefit was ancillary to substantial residential purpose served by fixing leaking barn roof". (Id.) The Court in Anderson, found where the defendant operated a day care center out of her home, that the "[a]ddition of bedroom was directly related to residential use of home", and therefore the homeowner was exempt from absolute liability, "despite fact that homeowner operated [a] day-care center in [the] home". (Id.) "A residence that houses a business may nevertheless retain its character as a home." (Id.)

Applying the standard set forth by the Court of Appeals to the matter sub judice, the defendant is entitled to the homeowner's exemption as the purpose of the work, the renovation here, to wit, the widening of doors and the installation of larger bathrooms, directly relates to the residential use of the home. While plaintiff submits that the defendant is funded by Medicare, Medicaid and Social Security benefits, and is "in the business of taking care of disabled individuals", unlike Van Amerogen, Jr. v. Donnini, 78 NY2d 880, the home is not an "income producing rental property". The primary use and purpose of the home, and the renovations being performed, directly relates to the residential use of the home, notwithstanding any arguably commercial benefit UCP may obtain from Medicare, Medicaid or Social Services benefits. Such a benefit, if anything, is "ancillary to the substantial residential purpose". The Second Department held the exemption applied to the homeowner who had a home office in her apartment since the work that was contracted for directly related to the residential use of her home. (DeSabato v. 674 Carroll Street Corp., 55 AD3d 656), and to the owner of a townhouse "not withstanding the fact that the townhouse was a multiple family dwelling at the time of the accident" where the purpose of the renovation was for a one-family use. (Stejskal v. Simons III, 309 AD2d 853). The exemption applies even if the title is held by a corporation. (Baez v. Cow Bay Construction, 303 AD2d 528). In any event, as previously stated, the Court of Appeals has specifically held that "[a] residence that houses a business may nevertheless retain its character as a home". (Bartoo, supra).

Here, there is no evidence that the defendant controlled, directed or supervised the work being performed. "The phrase direct or control is construed strictly and refers to the situation where the owner supervises the method and manner of the work." (Garcia, supra, citing Kalakowski v. Feeney, 32 NY2d 405). The homeowner's mere discussions about what portions of the house were ready to be painted and the color of paint was not sufficient evidence of supervision, direction or control. (Garcia, supra). A homeowner's visits once or twice a week, and complaints of progress of construction, do not constitute direction and control. (Putnam v. Karaco Industries Corporation, 253 AD2d 457). In order to be held liable under Labor Law §200 or common-law negligence arising [*5]from the manner in which work is performed at a work site, the owner must have supervised or controlled the work performed at the site. (Boccio v. Bozik, 41 AD3d 754). At bar, the defendant's visits to the site to ensure that the project was in conformity with certain regulations, and that it progressed according to plan, is limited involvement, and not sufficient evidence of supervision, direction or control over the plaintiff's work. The defendant did not provide tools, equipment or safety devices to the plaintiff. In fact, RJD provided the ladder to the plaintiff. Here, as in Angelucci v. Sands, 297 AD2d 764, where the defendant did not exercise supervisor control over the injured plaintiff's work, and the injuries were a result of the injured plaintiff's own hazardous work methods, the defendant does not owe either a statutory or a common-law duty to the plaintiff.

Even when the homeowner loaned a ladder to a worker, where the homeowner did not supervise the methods or manner of the project, the homeowner of a two-family home was entitled to the homeowner's exemption on claims brought under scaffold law and Labor Law provisions. (Chowdhury v. Rodriguez, 57 AD3d 121). Additionally, evidence indicating that the defendant visited the site at least five time a week, reviewed plans with an architect, hired some subcontractors, and made general decisions, was not sufficient evidence that the defendant supervised, directed or controlled the work of the plaintiff. (Garcia v. Petrakis, 306 AD2d 315).

Here, the renovation work performed at the time of plaintiff's fall directly related to the residential use of the home, notwithstanding that UCP is a non profit organization supported by Medicare, Medicaid and Social Security benefits for residents. The defendant owner of the one family dwelling, who did not control, direct or supervise the plaintiff's work, did not owe a statutory or common-law duty to the plaintiff.

CONCLUSION

In light of the foregoing, the defendant's motion for summary judgment dismissing plaintiff's complaint as and against the defendant is granted.

ENTER:

________________________________

J.S.C.

Dated: June 12, 2009

cc:

Valdebenito & Ardito, LLP

Gorton & Gorton LLP