Williams v Personale

[*1] Williams v Personale 2008 NY Slip Op 50385(U) [18 Misc 3d 1140(A)] Decided on February 26, 2008 Supreme Court, Ontario County Doran, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 26, 2008
Supreme Court, Ontario County

Robert C. Williams, Jr., Plaintiff,

against

Elaine Personale and Michael Personale, Defendants.



97822

Craig J. Doran, J.

Robert C. Williams, Jr. (plaintiff) was allegedly injured when he fell from the front porch roof of a house as he was helping to install a roof on a one-family dwelling owned by defendant Elaine Personale. Plaintiff commenced this action against Elaine and her adult son, Michael Personale (hereinafter "Michael"), asserting causes of action against each for common-law negligence and the violation of Labor Law §§200, 240(1) and 241(6).

The defendant Elaine Personale now moves this Court for an order granting summary judgment in her favor seeking dismissal of the complaint and cross-claim against her. The plaintiff has cross-moved for partial summary judgment on the issue of liability against defendant Michael Personale with respect to the claim brought pursuant to Labor Law §240(1). The defendant Michael Personale has also moved for an order granting summary judgment dismissing plaintiff's complaint and all cross-claims brought against him.

Defendant Elaine Personale was an elderly widow who had owned her single-family residence for 47 years. She needed a new front porch on her residence. Defendant Elaine Personale's son, defendant Michael Personale, spoke with his friend (plaintiff herein) and it was agreed that the plaintiff would help replace the front porch. The plaintiff also arranged to have Fred Miller (one of his friends) help with the work. Both the plaintiff and Miller had extensive experience in this type of construction project. The defendant Michael Personal did not have such experience.These facts as stated appear not to be in dispute. Much of the remainder is sharply in dispute: whether or not plaintiff was to be paid for the work or whether he was a volunteer; the cause of the roof collapse; whether the defendant Michael Personale was told by plaintiff or Miller to secure the new front porch to the existing house; how much supervision and control defendant Michael Personale had over the work; etc.

All parties concede that with respect to Labor Law §§240(1) and 241(6), defendant Elaine Personale is exempt from liability as an owner of a one-family dwelling who did not direct or control the work. Accordingly, defendant Elaine Personale is entitled to summary judgment dismissing plaintiff's Labor Law §240 and §241 liability claims.

The sole remaining issue with respect to defendant Elaine Personale's liability is whether or not she is entitled to summary judgment with respect to the Labor Law §200/common-law negligence cause of action. Defendant Elaine Personale contends that she is entitled to summary judgment because there is no evidence that she directed or controlled the plaintiff's work, nor that she either created the dangerous condition which resulted in the porch roof collapse, or that [*2]she had any actual or constructive knowledge of the alleged unsafe condition. Both the plaintiff and defendant Michael Personale contend that the inference has been established that defendant Elaine Personale was aware of the dangerous condition of the roof prior to the time that plaintiff was injured.

"For an owner to be held liable pursuant to Labor Law §200 or for common-law negligence, a plaintiff must show that the owner supervised or controlled the work, or had actual or constructive notice of the unsafe condition which caused the accident" (see, Miller v. Shah, 3 AD3d 521). "Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work" (see, Comes v. New York State Elec. & Gas Corp., 82 NY2d 876). "An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (see, Fisher v. WNY Bus Parts, Inc., 12 AD3d 1138, citing Russin v. Louis N. Picciano & Son, 54 NY2d 311). Thus, "where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercised no supervisory control over the operation, no liability attached to the owner under the common law or under Labor Law §200" ( Comes, supra).

Here, defendant Elaine Personale met her initial burden of establishing her entitlement to summary judgment dismissing the §200/common-law negligence cause of action against her.In opposition to the motion, plaintiff has failed to raise a triable issue of fact. The inference that she may have seen the front porch roof move on the day that the roof was being rebuilt does not, in this Court's view, raise a triable issue of fact in the context of this case (see, Burkoski v. Structure Tone, Inc., 40 AD3d 378).

Based upon the foregoing, this Court concludes that defendant Elaine Personale is entitled to summary judgment dismissing the complaint and cross-claim asserted against her.

The Court next turns to the plaintiff's cross-motion for summary judgment on the issue of liability against the defendant Michael Personale with regard to the plaintiff's claims against him pursuant to Labor Law §240(1), as well as defendant Michael Personale's cross-motion for summary judgment seeking dismissal of plaintiff's complaint and all cross-claims against him.

The plaintiff asserts that defendant Michael Personale acted as both an agent of the owner and as the general contractor and, as such does not qualify for the Labor Law exemption provided for owners of single-family dwellings. Consequently, plaintiff argues that defendant Michael Personale should be held strictly liable under Labor Law §§240(1) and 241(6) for plaintiff's injuries as a matter of law. Conversely, defendant Michael Personale alleges that he was neither an "owner", "contractor", or "agent" with respect to the injury-inducing work and is outside the class of parties subject to liability under Labor Law §240(1).

Based upon the evidence submitted in support of these parties' respective motions, this Court concludes that there are issues of fact precluding summary judgment for either party with respect to the Labor Law §240(1) cause of action. There are numerous questions of fact as to whether defendant Michael Personale was an agent or contractor with respect to the injury-inducing work. Further, there are questions of fact as to whether the plaintiff was a "volunteer" at the time of the subject accident and is, therefore, outside the class of persons entitled to the protections of §240(1).

Accordingly, both the plaintiff's and defendant Michael Personale's cross-motions [*3]seeking summary judgment with respect to the Labor Law §240(1) cause of action are hereby denied.

With respect to the defendant Michael Personale's motion for summary judgment with respect to any claim that plaintiff may have alleged pursuant to Labor Law §241-a is hereby granted, upon consent of the plaintiff.

With respect to the defendant Michael Personale's motion for summary judgment seeking dismissal of the Labor Law §200/common-law negligence cause of action against him, this Court hereby finds that there are questions of fact which preclude dismissal of that cause of action.

Finally, the defendant Michael Personale moves for summary judgment seeking dismissal of the Labor Law §241(6) claim against him. The defendant asserts that the plaintiff has not set forth the violation of a specific and applicable rule or regulation of the Commissioner of the Department of Labor. Therefore, his §241(6) cause of action must fail.

A cause of action under Labor Law §241(6) must be based on an alleged violation of a provision of the Industrial Code that sets forth a specific safety standard (see, Burkoski, supra). Here, the record contains no evidence of a violation of any of the 6 Industrial Code provisions on which plaintiff relies (Plaintiff relies on 12 NYCRR 23-1.5; 23-1.7; 23-1.15; 23-1.16; 23-1.17; and 23-1.26). Industrial Code (12 NYCRR) 23-1.5 are general safety standards that do not provide a basis for liability (see, Fisher v. WNY Bus Parts, Inc., supra). Defendant met his initial burden of establishing that 12 NYCRR 23-1.7; 23-1.15; 23-1.16; 23-1.17; and 23-1.26 were not applicable to the facts of this case and plaintiff failed to raise a triable issue of fact. The defendant Michael Personale's motion seeking summary judgment dismissing the Labor Law 241(6) claim against him is granted.

Based upon the foregoing, the defendant Elaine Personale's motion for summary judgment dismissing the complaint and cross-claim asserted against her is hereby granted. Both the plaintiff's and defendant Michael Personale's cross-motions seeking summary judgment with respect to the Labor Law §240(1) cause of action are hereby denied. The defendant Michael Personale's motion seeking summary judgment dismissing the Labor Law §§241-a and 241(6) claims against him is hereby granted.

This constitutes the Decision of the Court. Counsel is directed to submit an order in accordance herewith.

________________________________________

Craig J. Doran

Acting Supreme Court Justice

Dated at Canandaigua, New York,

this day of February, 2008.