Caiazzo v Mark Joseph Contr., Inc.
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Caiazzo v Mark Joseph Contr., Inc. 2012 NY Slip Op 32554(U) October 1, 2012 Sup Ct, Suffolk County Docket Number: 09-43129 Judge: Thomas F. Whelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. CAL. No. SIIORT FORM ORDER copy 09-43129 11-025050T SUPREME COURT - STATE OF NEW YORK IAS. PART 33 - SUFFOLK COUNTY PRESENT: lion. TIIOMAS F. WIIELAN Justice of the Supreme Court MOTION DATE MOTION DATE ADJ. DATE 5-8-12 (#003 & #004) 5-8-12 (#005) 7-16-12 Mot. Seq. # 003 - MotD # 004 - XMo\D # 005 - XMD ---------------------------------------------------------------X RONALD CAIAZZO, Plaintiff, - against - MARK JOSEPH CONTRACTING, INC., JULIE COEN and ANA REYES, Defendants. GREGORY VOLPE, ESQ. Attorney for Plaintiff 137 Willis Avenue, Suite 500 Mineola, New York 11501 ABAMONT & ASSOCIATES Attorney for Defendants Coen and Reyes 200 Garden City Plaza, Suite 400 Garden City, New York 11530 MAZZARA & SMALL, P.c. Attorney for Defendant Mark Joseph Contracting 800 Veterans Memorial Highway Hauppauge, New York 11788 ---------------------------------------------------------------)( Upon the following papers numbered 1 to ----=!.L read on this motion and cross motions fOl" summary judgment; Notice of Motion/ Order 10 Show Cause and supPolting papers 1 - 16 , Notice of Cross Motion and supporting papers 17 - 20; 21 - 38 ; Answering Affidavits and supporting papers 39 - 40 ; Replying Aft1davits and supporting papers 41- 42; 43 - 46 ; Other _; (and line, Ileal illg,etJd'l.~d ill ~t1ppo,t alld opposed to ti,e Itlotioli) it is, ORDERED that the motion (003) by defendant Mark Joseph Contracting, Inc. for an order pursuant to CPLR 3212 granting summary judgment in its favor dismissing the complaint and all cross claims as against it is determined herein; and it is further ORDERED that the cross motion (004) by defendants Julia Cocn and Ana Reyes for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing the complaint and all cross claims as against them is determined herein; and it is further ORDERED that cross motion (005) by plaintiff for an order pursuant to CPLR 3212 granting summary judgment in his favor on the issue ofliability is,denied. [* 2] Cai,lZZOv Mark Joseph COl1lracting Index No. 09--B 1~9 Page No. '2 This is an action to recover damages lor injuries allegedly sustained by plaintilT on September 3, 2008 at approximately 10: 15 a.m .. during the course of his employment as an HV 1\(' installer for non-party Advanced, that occurred after he exited a doonvay of an extension of a home· s accessory apartment that was under cotlstruction and stepped onto a makcshi Ii Sll:p consisting of an empty wooden spool approximately 12 to 18 inches high and then fell. The accident occurred at premises loultcd at 420 COJllmack Road, ill Commack, ['own ofl luntingtol1. New York owned by defendant Julia Coen. The subject doorway was allegedly located at the rear. Laurinda A venue. side of the property. Defendant Coell had contracted with defendant Mark Joseph Contracting, Inc. (Mark Joseph Contracting) on June 30, 2008 for the extension and renovation of the homc's attached accessory apartment. The work proposed under the contract included framing and sheathing, concrete work, siding, roof work, windows, an interior staircase and railings, electrical v,fork, plumbing and heating. insulation, sheetrock. bathroom tile. nooring, trim and moldings, and interior doors. The contract expressly excluded priming. tiles, plumbing and electric fixtures, driveway and walkways, and landscaping. Defendant Cocn had separately contracted with plaintiff's employer, Advanced, by agreement dated August 29, 2008 t()r the installation ora centnd air conditioning system. Plaintilfcomll1enced this action against Mark .Joseph Contracting, the homeowner Cocn and her daughter Ana Rcyes. l3y his complaint, plaintilTalleges causes of action for common-law negligence and violations of Labor Law §§ 200, 240 and 241 (6). By his bill of particulars and amended bill of particulars, plaintiff alleges violations of the following sections of the Industrial Code, 12 NYCRR § 23-1.5 (a-c), § 231.7 (a,cJ). § 23-1.15 (a-e)_ § ::>3-1.16 (a-f), § 23-1.17 (a-c), § 23-1.21 (a-d), § 23-1.22 (a-c), and § 23-2.7 (ae). Tnhis amended bill of particulars, plaintiff alleges that defendants were negligent in, among other things_ failing 10 provide a safe ingress/egress 10 the work site, failing 10 properly construct a temporary, safe stairway and/or steps [or entry into the work site, and using a makcshin step consisting ora large, empty wooden spool. The answer of defendant Mark Joseph ContTucting, Inc. and the answer of defendants Cocn and Reyes contain cross claims Corcontribution and indemnification. PlaintiJrs depOSItion lest imony of August 17, 2010 reveals that he was lead mechanic lor Advanced supervising a crew of workers. he reported to the job two days prior to the accident, and he learned of the job to install air conditioning equipment from his boss, Joseph Massaro. Plaintifrtestificd that there were bluepnllts. 1hat no one !Old him how to do hiS work on the project, and thai hc did not know who hired his employer. In addition, plaintifTtestilicd thm he did not know defendant Mark Joseph Contracting or its owner. he had no personal dealings with them and no one from Mark Joseph Contracting told him what to do at this project or how to do his work or provided him with tools or equipment ror his work. Pla1l111r stated that on Septembcr 2, 2008 and September 3. 2008 there were no other trades other r than his (}\\'n working on the project. I Ie recalled that there was only aile doorway. at tile rear of the extension. thm It had no door attached and it was the only entry and exit that he used. Plaintiff explained thut the heIght rrol11the base of the dool"\vay to ground level was approximately two-and-a-hal r ICeL that the ground surlilCe outsidc orthe doorway \VUS Ilat und composed ofdirl, and thai to enter the cxtension. he s\l.::pped Oil what he believed 10 be an cmpty wooden spool of wire lying on its side, approximately f5 to 18 inches wide and approximately a li)ot or ]"oot-and-a-Ilall" in height. One day prior to the accident he wenl in and oul of said doorway approximately live or six times without any difficulty. He did not know who [* 3] Caiazzo v Mark Joseph Contracting Index No. 09-43 J:::9 P::lge No.3 owned the spool or how it came to be at the project. and he did not ohservc anyone else other than he and his co-workers using it to rnler or exit the extension. PlaintilT also testified that lhe accident occurred on his second day at the job. the weather was sunny and dry. hc was wearing work boots, and he went in and out orthe extension using the spool without incident approximately lour limes. lie recalled that it appeared to be stable, and he did not try to find something else to use as a step. Plaintiff further testified that the accident occum:d when he was exiting the extension, he was not cmrying anything in his hands, he was looking at the spool, and he stepped on the middle urthe spool with his I·ight l'oot and the spool "gave way." PlaintifTdid not know what specilically occurred or what he meant by "gave way" bur he did fall and land on his right kne<.:.I He did not look at the spool at any time after he fell, he did not return to the site arier his accident but he did 1111 out an accident report. According to plainlin~ he had spoken to a man and woman whom he believed to be the homeowners on the day of his accident, prior to its occurrencc, having specific conversations. the speci fics of which plaintilTcould 110trecall. He also spokc to the woman afier his fall regarding the spool but did nOt recall what he specifically said. Plaintiff further staled that he was not given any instructions from th<.: homeowners or anyone identifying themselves as the homeowners concerning how to do his work and they did not direct or control his work in any way. Ile specifically stated that he was not given instructions on how to enter or exit the house from defendant Mark Joseph Contracting. Dcfendant Coen testified at her deposition on Novcmber 12, 2010 that she last had a tenant living in the accessory apartment extension to the home in approximately 2006 when the construction began and that the purpose of the construction on the extension was to enable her to move in next to her daughter and grandchildren who were living in the house. Defendant Cocn specified that the tcnant who had lived ten or twelve years in the extension to the house moved out approximately three months before the construction began and that her daughter and grandchildren lived in the house during the construction. According to defendant Coen, prior to the construction there was a separate entrance to the house and a separate entrance to the apartment, both located <:lllhe front of the premises. At her contiml<.:d deposition on June 17,2011, defendant Cocn testified that <Itthe beginning oCthe construction delcndant Mark Jo.c;ep!l Contracting installed the door at the rear <.:ntryof the extension, the door was left open so that the contractors could work. she did not know anything about said doorway b<.:cause she usually did not use it. and she ncver saw anyone using said entrance. She did state that her nephew installed the neVi masonry steps to the subject doorway. Defendant Coen did not recall a wooden spool located at or near said doorway. She maintained that the air conditioning work was performed in the middle of the job, that she was at the premises on the first day of the air conditioning work. that she was at the premises three times when the nir conditioning employees were there, and that she ohserved the employees installing ducts. According (0 defendant Coen. no one from Advanced told her that someone had an accident on her property, had fallen by the doorway at the rear of(h<.: extension or made any complaints about the condilion ortbe propeI1y or about the lack ora stcp or the existence ora wooden spool at the rear doorway of the extension. The deposition testimony of Mark Hamilton on August 17,20 I 0 indicates that he is the o\vner of defendant Mark Joseph Contracting. that on September 3, 2008. he had approximately three employees. and that their work mvnlved the foulldation. demolitioll. fr<1111ing, installing \-vindows, carpentry worl.:. sheetrock 1011 (11(' WI"I"<.'ctiOIl ,\l"Iicl;lvitl)lailltilrstntl~d, p<tg..: to Ilis ckposition ··1 stepped transcript piailllilTalickd down onto the wo()dcn spool. 111m tl1(' spout (oppled It gave way and it toppkcl OWl' avel· ,. In his [* 4] Caiazzo v Murk Joseph Contrael in!;!. Index No. 09-43129 Page No. ,I and insulation. Mark I-Iamilion testilied that subcontractors that he hired did the roofing. siding. electrical work. and plumbing pursuant to the contract. In addition. he tcstified that the homeowner falmly did their own masonry work. installing their own exterior stairs and exterior patio, and [hat his contract did not provide lor the Illstallation of masonry stairs for the entrance that he constructed on the side of the extension. lie had no independent recollection of making a rear entrance to the e:.:tcnsion or of there being a doorway at the rear of the extension or oftbe homeowner asking him to install a door at said location. Mr. [lamiltol1 staled that during the time that he \x,'orked on this project he and his employees gained access to the premises from the rront door and that he did not observe any of the subcontractors use any other entrance. I-Ie also testilied thaI Mark Joseph Contracting first did the foundation and demolition work, the rool', and then thc fralmng during which all the doors were installed. i\ceording (0 Mr. Hamilton, the last lime he W,1S at the premises was August 2S or August 2R, 2008 and thc doorway that he constructed on the side of the extension had no steps outside leading up to it, the door was locked. and he did not use said door ::nall because the homeowner took the keys to the door after it was installed and told him not to use It. Mr [lmnilton described the height of the foundation as 12 (0 18 inches. I Ie maintained that he never knew that the homeowner had hired someone to install air conditioning. Mr. Hamilton further testified that he never saw wooden spools on the premises and that although plaintiff alleged that the spool was used [or wire, the wire that the electrical contractors used wcre 250 foot roles wrapped in plastic. Defendam Mark Joseph Contracting now moves for summary judgment dismissing the complaint and all cross claims as against it on the grounds that its involvement with the premises had concluded prior to plaintiff's accident that it did not supervise, direct or control plaintiffs work, and that it did not own the spool, did not place it on the premises. and had no prior notice of a spool being used as a step. Defendant Mark Joseph Contracting asserts that it was not a general contractor for the project, that it was hired to perform only a portion oCthe \-vork, Ihat its contract with defendant Coen did not provide for airconditioning work or give it any authority to supervise, direct or control plaintiff's work, and that defendant Coen directly hired plaintiff's employer. It emphasizes that plaintiff's deposition testimony shows that he docs not know who owned or placed the spool at that location nor does plainti rr know defendant Mark Joseph Contl"3eting or its owner and that plainti tT admitted that no one from defendant Mark Joseph Contracting told plaintilThow to perform his work or supplied him with tools or equipment. Thc suhmissions in support of the motion include the pleadings, plaintiff's anginal nncl amended bill of particulars. the deed to the premises dated February 21, 1996, the aforementioned contracts. and the depositiolltranscnpts nfplaintill defendant eoen and Mark Hamilton. \)eli:ndants Coen nnd Reyes cross-move lor summary judgment dismissing the complaint and all cross claims as against them on the grounds that delcndant Reyes did nol own the prcmises, was not present at the time of plaintiffs accident and did not control the worksitc or owe any duty lo pJaintifr. that plaintiff admitted that none of the defendants directed and controlled his work. and that dclcndant Cocn is not liable under the homeowners' exemption. Their attomey indicates that defendants Cocn and Reyes adopt and incorporntc by rclcrcnce the facts. legal arguments and cxhibits submitted by co-dclcndant Mark Joseph Contracting. They suhmit plaintilrs bill oCparticulars in support ofthclr cross motion. PlaintilT cross-moves for sumlluuy judgment in his favor on the Issue or liability. lie asserts that cle!cndant Mark Joseph Contracting was the general eontl'<lctor of this project, that defendant Cocn was lhe general contractor for plaintiff's work, and that I.abor I.aw ~ 240 (I) appl1cs because the spool was a Il'lll[)Onlry device uscd In access 1111.: first l1ooJ' orthc extensioll from ground level and that 11 NYCRR 027- [* 5] Caiauo v Mark Joseph Contractil1g Index No. 09-43129 Page NO.5 1.7 specifically applies to these eircuITIstanccs_ In addition, plaintiff asserts that viewing the evidence in a lighl ravorable to plaintiff. it must be assumed that defendant Mark Joseph Contracting created the doorway and failed to install a temporary stair or step and that defendants would be responsible to all invitees including non-contractors/laborers for the defective condition. As for defcndam eoen. plaintifTargues that she cannot nenclit from the homeowners' exemption inasmuch as she and her husband were in the business or real estate development and the extension was last used as an accessory apartment lor tenants. In support or his cross motion. plaintiffs submissions include his bills or particulars, his affidavit daled June 5, 2012. the dcposition transcripts ofplaintifr. deCcndant Coen. and Mark Hamilton. records from thc Town of Ilulltingtnn based on a FOI I, request, blueprints of the proposed construction. and the subject contracts. In opposition to plaintirf's cross motion, defendants Coen and Reyes emphasize lhat plaintiff's own deposition testimony shows that nonc of the defendants directed or controlled hIS work such that plaintilrs Lubor Law § 240 (1) causc of action must be dismissed, that defendant Coen is entitled to the homeowners' exemption inasmuch as the construction was for the express purpose of moving into the completed extension. and the home was never more than a two~ramily dwellmg, and that delcndant Cocn had no notice of any empty wooden spool on her property. They also contend that plaintiff's varying statements from his deposition to his affidavit as to what happened to the spool when he stepped on it are an attempt to creatc an issue or fact in response to defendants' motions. In reply, defendant Mark Joseph Contracting maintains that defendants arc in agreement that it was not a general contractor. that it was not hired to construct exlerior stairways, thaI it had no contact with plaintiff or his employer, and that it was not actively involved in the project as orthe dale of the accident. Defendant Mark Joseph Contracting argues that although the blueprints appear to indicate two new exterior dOOlways, one 011 the side of the extension and one at the rear, its owner Mark Hamilton did not recall the rear doorway and even if defendant Mark Joseph Contracting did construct the rear doorway, there is no evidence that the doorway was improperly constructed or causcd plaintiff to l~lll. It also argues lack or notice by noting that its employc(:s never used a rear doorway fi.lt" ingress or egress, that plaintiff's accident docs not 1~111 within the scope of Labor Lnw § 240 (1), 8!lcl that the sections oCthe I'ndustrial Code alleged by plamli ITarc inapplicable. PlaintifC in his reply. contends that deCendnnt Mark Joseph Contracting was a general contractor as evidenced by the sign that it placed on the property and its being listed as a general contractor by the Town and that it ,"vasan agent or defendant Coell. Plainli!T argues that his deposition, corrections and affidavit are consistent as to how the accident occurred. h is well settled that (he party moving for summary judgment must make a prima l~lCie showing of entitlement to judgment as a matter of law. offering sufficient evidence to demonstrate the absence of any material issues or lac! (see Alvarez v Prm,pect Hosp .. 68 NY2d 320, 508 NYS2d 923 rJ 986]: Zuckermall II City of New York. 49 NY2d 557. 427 NYS2d 595 119801). The [1.ilure 10 make such a prima facie showing requires the denial of the motion n:gardless or the sufliciency of the opposing papers (see Willcgrat! v New York Vllil/. Met!. etr .. 64 NY2d 851. 487 NYS2d 316 I J 985 D. "Once Ihis showing has been made, however. the burden shills to the parly opposing the motioll !hr summary judgmellt to produce evidential)' proof in admissible fi.mn surficict1l to establish the existence or material issues or 1~lctwhleh reqUire a tna! oCtile 'H.::(ion"Alvarez l' Pro.\pect lIosp .. SIIJl/"([ at 324. 508 NYSld 923, citing to ZlIckerll1(1/1l' Ci~v ( (~l New York. ,wpm ,11 562. 417 NYS2cl 5(5). [* 6] Cniazzo v Mark Joseph Contracting Index No. 09-4.3129 Page NO.6 Labor Law §§ 200. 240. and 241 apply to owners. general contractors. or their "agents" (Labor Ll\v §§ 200 1"1/.240 fl/, 241). 1\ party is deemed to be an agent of an owner or gencral contractor undcr the l.ahor Law whcn the party has supervisory control and authority over the work being done and can avoid or correct the unsafe condition (LillkOlv:)'kiv Ci(v of New York. 33 AD3d 971. 974-975. 824 NYS2d 109 [2e1 Dcpt 20061: .we Walls v Turuer Coustr. Co., 4 NY3d 861,863-864.798 NYS2d 351 [2005 j; Russill v Louis N. Piccilllw & Sou. 54 NY2d 311. 317-318, 445 NYS2d 127 11981/; Rodriguez I' JMB Architecture, LLC. 82 AD3d 949. 951,919 NYS2d 40 1'2dDept 201 tJ; Damiani v Federated Dept. Stores, fIlC., 23 AD3d 329. 331-332, 804 NYS2d 103 [2d Dcpt 20(51). The determinative I~lctoris whether the party had "the right to cxercise control over the work, not whether it actually exercised that fight'" (William.\" v Dover Home Improvement, 276 AD2d 626, 626, 714 NYSld 318 l2d Dept lOOOI;see Bakhtadze v Riddle, 56 ADJd 589, 590, 868 NYS2d 6X4 r2d Dept 20081). Labor Law § 240 (1) requires that building owners and contractors: "in the erection, demolitiun, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces. irons. ropes, and other devices which shall be so constructed, placed and operated as 10 give proper protection to a person so employed." The kind of accident triggering Labor Law § 240 (I) coveragc is onc that will sustain the al1cgation thar an adequate "scaffold, hoist, stay, ladder or other protective device" would have "shicld[ed] the injured worker from hann directly Oowing [rom the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494. 501. 601 NYS2d 49 [1993 J; Salazar v NOl'alex COllt,. Corp., 18 NY3d 134, 139.936 NYS2d 614 120II D. Labor Law § 241 (6) provides: "AI1 areas in whieh construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide rcasonable and adequate protection and safety to the persons employed therein or lawfully frequcnting such places." Labor I,aw ~ 241 (6) "imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide rcasonable and adequate protection and safety' to persons employed in, or lawfully n'equcnting, all areas in which construction, excavation or demolition work is being perform cd" (Rizzuto II LA. Wenger COl1tr.Co.. 91 NY2d 343. 348, 670 NYS2d 816 r1998j. quoting I.. bor Law ~ a 241 [6]; see Harrison v State, 88 AD3d 951, 931 NYS2d 662 [2d Dept 20111). Inasmuch as the statutc is not sclf-cxecuting. a plaintilTmusl allege a violation ora specific and applicable provision ofthc Industrial Code (see Wilimki v 334 East 9211dflous. Dev. Fuud Corp., supra; Ross v Curtis-Palmer Hydro-Elec. Co.. supm; Jara v New Yor/.;Racing AS.m., Il1c., 85 AD3d 1121. 1123,927 NYS2d 87 [2d Dept 20111; D'Elial! Ci~JI New York. 81 AD3d 682. 684. 916 NYS2d 196 f2d Dcpt 2011 D. (if I,ahar I,aw § 200 is a codilication or the common-law duty or landowners and general contractors to provide workers with a reasonahly safe place to work (see COme!i v New York State Elec. (lml Ga!i Corp.. 82 N Y2d 876. 609 NYS2d 168 [1993 J; Ross v Curtis-Palmer Hydro-Electric Co.. supra: Lombardi v Stout. 80 NY2d 290. 590 N YS2d 55 l19921; Rojas v Schwartz. 74 AD3d 1046. 903 NYS2d 484 [.lei Depl 20101). Where a prcmises condition is at issue, properlY owners may be held liahle for a violation of T.abor I.aw ~ 200 or based on common-law negligence if the owner either created 1he dangerous condition that caused the accident or had actual or constructive notice of the.condition (see Ortega v Puccifl. 57 AD3d 54. 1>66NYS2d 32::11'2dDcpt 2008 D. By contrast, whcn a claim arises out of alleged delccts or dangers in 1hl;: mClhods or TlliJlerialsof the work, there can he no recovery against the owncr or gl;:llcn.l1ontractor under c [* 7] Caiazzo v Mark Joseph Conlracting Index No. 09-43129 Page No.7 Labor Law § 200 or common-law ncgligenee unless it is sllO\.vnthat the party to he charged had the authority to supervise or control the perfomlance of tile work (see id.). Although property owners often have general authority to oversee the work's progress. mere general supervisory authority at a worksite lor the purpose ofovc-rsceing tile progress uftlle work and inspecting the work product is insunicicnt to impose liahility under Labor Law § 200 or common-law negligence (see hI.). Initially. the Court notes that no evidence has been adduced demonstrating that defendant Reyes was an owner of the property or a general contractor or a statlltory agent or that she supervised or controlled plaintirr s work. ·l·heretore, plainti I'fs complaint is dismissed as agmnst defendant Reyes. Delendant Mark Joseph Contracting established, as a maLter of la\A', that it did no!' have the authority to supervIse and control plaintiff's work and that it was neither a general. contractor nor the agelll of the owner (see Herre! v West, 82 AD3d 933, 919 NYS2d 83 ! 2d Dcpt 20 II ); Kill1leti. ¢v Creative Pool ¢ a/ld Spa, I/lc .. 74l\D3d 1289,904 NYS2d 495 [ld Dept 2010]; see a/so Temperillo v DRA, /Ilc., 75 AD3d 543,904 NYS2d 767 [2d Dept 2010J). Defendant Coen, not defendant Mark Joseph Contracting, selected plaintifrs employer Advanced and paid Advanced directly. Defendant Mark Joseph Contracting and Advanced each had separate contracts with defendant Coen, and the contract of defendant Mark Joseph Contracting did not give it the authority to insisl that proper safety practices be followed by other contractors (see Aversano v JWH COlltr., LLC, 37 AD3d 745, 831 NYS2d 222 [2d Dept 2007]; (f Relyea v Bllshlleck. 208 AD2d 1077, 617 NYS2d 558 [3d Dept 1994J). PlaintiiT failed to raise a triable issue of fact in opposition (see Herrell! West, supra; Tel1lperino v DRA, /IIC., supra; Kilmeti.'l v Creative Pool am/ Spa, /I1C., supra). Therefore, that portion of the motion of defendant Mark Joseph Contracting for summary judgment dismissing the causes of action alleging violations of Labor Law § 200. § 240 (1) and § 24 J (6) is granted and that p0l11on of plaintiff 5 cross motion for summary judgment on the causes of action al1eging violations of Labor Law ~ 200. § 240 (1) and § 241 (6) insofar as asserted against defendant Mark Joseph Contracting is denied. As 1"orhe homeowner deICndant Coen, I,abor Law ~0240 (I) and 241 (6) contain identical t language exempting from the statutes "owners of one and two-family dwellings who contract for but do not direct or control the work" (see I.abor Law §~ 240 [1], 2411.6); CltowdhlllY v Rodriguez, 57 ADJd 12L 867 NYS2d 123 1-2dDept 2008]; see also Rodriguez v GtI/1Y,82 AD3d 863, 918 NYS2d 187l2d Dept2011J). In order lor a defendant to receiw the protection ufthe homeowners' excmption. the defendant must satisfy two prongs required by the statutes (see Chowdhury I' Rodriguez, supra). First, dcfcnclmn must show thnl the work was conductcd at a dwelling that is a residence for only one or two families: second. defendant must dernonstrate that delendant did ··not direct or control the work" O~nbor Law §§ 240 [I"l. 241 [61), that is. did not supervise the methods and manner of the work (see id.). The exception was enacted to protect thosc who. lacking business sophistication. would not know or anticipate the need to obtain insurance to cover them against absolute liability (se(-'Acosta v lIadjigavrie!, 18 I\D3d 406. 794 NYS2cl 445 l2d Dept 10051: s(-'(-' al.m SzczepallSki II Dandrea Constr. Corp .. 90 ADJd 642, 934 NYS2d 432 [2d Dept 2011 J). Use of n portIon of a homcowners' prcmises tor commercial purposes-as here. where part of thl.;two-l~lInily dwelling was rented-docs not aUlOmatical1ycause the homeowner to lose the protection oCthe exemption under this statute (see Ramirez II Ilegum. 35 AD3d 578. 829 NYS2d 117 [.2d Dcpt 2006 [. Iv denir.:d8 NY3d 809. 834 NYS2d 90 [2007]: Small v Gut/ehef", 299 AD2d 536. 751 NYS2d 49 [ld I)ept 20021. /1' denied 2 NY3d 702. 778 NYS2d 461 1.20041). Where there ISmixed use, ·'the dcterlninalion whether th~ cXTmptioll IS aViJil<Jole all O\vner in a particular case turns on the site und purpose oj"(he work'" (Kltela \! Neiger. 85 ((1 [* 8] Cal:ll.l.n v Mark Joseph Contracting Index No. 09-43129 PJgc NO.8 NY2d 333. 337. 624 NYS2d 566 [19951.: sl!e Lemh, v Breeze Concrete Corp .. 731\[)3d 987. 989. 903 NYS2d 4 I 7 12d Dept 20101: Morocho v Marino Enters. Contr. Corp., 65 l\[)3d 675. 675-676, 885 NYS2d 99 l2d Dept2009l; UIIUI1lZ0r Charles Hofer Pailltiug & Wallpaperillg,IlIc., 48 I\03d 552, 553. 852 v NYS2d 205 I2d OCP! 20081; Ramirez v Begum. supra). Thc "site and purposc" test is "cmploycd on the basis or the homeowners' intentions at the timc ortbe injury underlying the action and not their hopes for the future" (Allell v Fiori, 277 I\D2d 674, 675, 716 NYS2d 414l3d Dept 20001; see LemhI v Breeze Concrete Corp., slIpra; Dineen v Reclticlti. 70 AD3d 81, S88 NYS2d 834 [4th Dept 2009,[, /v denied 14 NY3d 703. 898 NYS2d 98 [20 I OJ; Morgan v Ro.n'elli, 23 AD3d 356, 804 NYS2cl 763 l.2d Dept 20051, (v denied 6 NY3d 705, 812 NYS2d 3412006]). I kre, defendant Coen demonstrated her entitlement to the benefit oClhe homcowners' exemption for owners ofonc- or two-family dwellings who contract for but do not direct or control the work. and disl11l.';sal of the causes of action asserted pursuant to Labor Law §§ 240 (1) <me! 241 (6) by showing that the site Jnd purpose of the construction was solely connccted with remodeling the extcnsion into a residcntial spnce for herself and her husband, not creating or enhancing a commercial usage (see Bartoo \I Buell. 87 NY2d 362. 639 NYS2d 778 (1996): Khela II Neiger. supra; Roach II Hemmulez, 38 AD3d 743. 833 NYS2d 525 [2d Dept 20071./1' denied 9 NY3d 804. 840 NYS2d 7641)007J: Small v Glltleher, ,HIpi'll). Plaintiff failed to raise an issue of fact as to whether the aim of the consiruction was io further a commercial enterprise by renting the extension and whether defendant Cocn directed or controlled the work (see Piedra II Matos, 40 I\03d 610, 835 NYS2d 407 l2d Ocpt 2007]; Roach v Hemant!ez, supra; compare Lem/a II Breeze Concrete Corp.. supra; Morgan v Rosse!li, supra). Defendnnt Caen testified at her deposition that the extension had been rented prior to the construction but that the tenant had moved out prior to the subject construction and that the purpose ofthc construction was to enlarge the extension so that she and her husband could live there next to their daughter and grandchildrcn, Thus the site and purpose of the construction had nothing to do with the prior tenancy (see Stejskal II SinuJIls. 309 A02d 853,765 NYS2d 88612d Dcpt 20031, a(jd3 NY3d 628, 782 NYS2d 397[2004]). PlaintilTmcrcly speculates that based on their other rental properties, defendant Coen and her husband plan to rent the subject extension. "Where the moving party has established prima facie that it is entitled to SLlml113lY judgmelll, the party 0pposlllg the motion must del11onstr8tc the existence or a factual issue requiring 3 trial of the action by admissible evidence. not mere conjecture, suspicion, or specuhttion" (Leggio v Gearhart, 294 AD2d 543. 544, 743 NYS2d 135 [2d Dept 2002J: see Zuckerman v Ci~Vof New York, supra; Fothltis l' Cambridge Hall TI!1lllllts Corp., 70 AD3d 631, 895 NYS2d 456 [2e1 Dept 2010J). [n addition, the activities ofdcfcndant Cocn in visiting the site on occasion. providing thc site plans prepared by her architect hiring contraclors. revi~wing plans and the progress of the work, and making general deCisions "arc no morc extenSive than would be expected oflhc ordinary homeowner-- (Laue v Kurian. 2]0 AD2d 549.550.619 NYS2d 79(l 12d [)cpt 2006J: see Ferrero v Best Modu{ar Homes, /Ilc .. 33 A03d 847, 850. 823 NYS2d 47712d J)epl 20061./v /0 appeal t1ismissetlS NY3d 841. 830 NYS2d 693 [20071: Garcia" Petrakis. 306 AD2d 315. 760 NYS2d 551[2d Dept 20031; Tilton v GOIiItI,303 AD2d 491. 756 NYS2d 757 12d OCPI 2003]: see also NlIi Rell.Jiallg v Yeh, 95 I\D3d 970. 944 NYS2J 200 j2d Dcpt 20]21)_ Moreover. dclcndanl Coell did not become a general contractor. responsible for supervising the entIre construction project and enforcing salcty standards. by virtue orthe faet that she hired separate contractors to perrurm eliffcrcnt aspects of the project (see Ferrero II Be.'1tModular Homes, IIlC., SlI!)/'O; I-/olijie!tl " Scmphim, LLC 92 ;\[)3d S41. 940 NYS2d 100 L2d Dept 2012]; Rodas v Weissberg, 261 AD2d 465, 466. 690 NYS2d 1J(-i [2d De]!t 19991, see ({/so /Vai Rel1.1ilfllK II Yell. supro) Therefore. that p0l11on orlhc [* 9] Caiazzo v Mark Joseph ContraGtillg Index No. 09-43129 Page No. ') cross-motion by defendants COCIl and Reyes for summary judgment dismissing the causes of action alleging violations of Labor Law *§ 140 (I) and 241 as against thcm is granted and plaintifTs cross motion for summary judgment on his Labor l.aw §§ 240 (I) and 241 causes of action ;]gainst defendants Cocn and Reyes is denied. Ilowever. dclcndant Mark Joseph Contracting may be held liable lor common-law negllgencc where the work it performed created the condition that caused plaintiff's injury evcn ifit did not possess any authority to supervise and control plaintiff's 'vvork or thc \",ork area (see TahieknuIII v Batc!lelder Street Condominium.<; By t!le Bay, LLC, 52 !\J)3d 593, 859 NYS2d 721 r2d Dcrt 2001rl; see also Porucki v Sf. Mw:V'.\· Roman Catholic C!lure!l, 82 AJ)3d 1192,920 NYS2d 233 [2e1 Depl 2(11». In addition. "I.wjhcn a premisr.:s condition is at issue. a property owner is liable uncler I,abor Law § 200 when the owncr created the dangcrous condition causing an injury or when the owner 1~'1ilcd remcdy a dangr.:rous or defective to condition of which he or she had actual or constructive notice" (see Chowdhury I' Rodriguez, supra at 12g linternal citations omitted]: Ortega v Puccia, supra; Azad v 270 5th Realty Corp., 46 i\D3d 728, 848 NYS2d 688l2d Dept 2007 J; Keatillg v NaJluet Bd. of Educ., 40 i\D3d 706, 835 NYS2d 705 [2d Dept 200TJ; Kerim v Vassar Coli .. 15 i\D3d 623, 790 NYS2d 697 [2d Dcpt 2005]). Deposition testimony by Mark I Jamilton that when his company left the project, the doorway that he constructed at the side of the extension had no outside steps leading to it, and deposition testimony by defendant Coen that the doorway was lert open for workers raise questions of fact as to. among other things. whether the doorways that they testificd to were in ract the same doorway that plaintiff used and if so, whether defendant Mark Joscph Contracting crcated a dangerous condition or a doorway without access steps or stairs and whcther defendant Coen had aetual or constructive notice of the dangerous condition (see Reilly-Geiger v Dougherty, 85 i\D3d 1000,925 NYS2c16! 9 [2d Dept 2011-1; Tabicknum v Batchelder Street Coudomiuiums By the Bay, LLC, supra). In addition, neither the correction to the deposition transcript nor plamtifTs affidavit directly contradict his dcposition testimony that the spool :'gave way" and thus cannot be characterized as raising r"Cigned issues or fact (compare ShernulII-Scltiffmall v Co,<;tco WllOle.Hlle,fllc .. 63 AD3d 1031, gg4 NYS2d 760 [2e1Dept 2009"1; Shpizel v Reo Realty, COllstr. Co., 28g J\D2d 291,733 NYS2d !9612d Dept 200]]). Thus, the adduced evidence falls to establish that defendant Mark Joseph Contracting did nOt' create a defective condition such that it is not entitled to dismissal of plainti Irs common-law negligence claims as against it (see Ta!Jickllum v Batchelder Street Condominiums By tlie Bay, LLC. supra). and defendant Coen railed to demonstrate her prima facie entitlement 10 dismissal of plainti Irs causes of action alleging violations of Labor Law § 200 and eommonlaw negligence (see Reilly-Geiger \I Dougherty. supra). Therefore, the portions of the motion of defendant Mark Joseph Contracting for sUlllmary judgment dismissing the causes of action alleging violations or common-law negligence as against it and the cross motion by defendants Coen and Reyes for summary judgment dismissing the causes of action alleging violations of Labor La,"," 200 and common-law negligcnce as against delendant Coen arc denied. The portions ofplaintifCs cross motion for summary judgment 011 his causes or action for common-law negligence as against defendant Mark Joseph Contracting and for summary judgment on his causes 01" action for violations of Labor Law § 200 and common-law negligence as against dcfi.:ndant Coen are denied. * *~ Accordingly, the motion of defendant Mark Joseph Contracting 11.)1' summary judgment IS granted solely to the extent that plainlin"s causes of action for violations or Labor Law 20D, 240 (I) and 241 (6) un: dismissed as against it: the cross motil)]1 or defendants COCll and Reyes j()r sllillmary judgment IS [* 10] Caiazzo v Mark Joseph Contracting Index No. 09-43129 Pagc No.1 0 grantcd solely to the extent that the complaint is dismissed as against defendant Reyes and plaintiff's causes of action for violations of Labor Law §§ 240 (I) and 24] (6) are dismissed as against defendant eoen: and plaintiffs cross-motion for sUlllmary judgment is denied. The action is severed <Illdcontinued as against the remaining defendants. Mark Joseph Contracting and eoen. Iftft/ln l U I· Dalcd:_! ,~
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