Barahona v Deutsch

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Barahona v Deutsch 2013 NY Slip Op 30275(U) January 29, 2013 Supreme Court, New York County Docket Number: 113737/08 Judge: Joan A. Madden 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. - SCANNED ON 21712013 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY Y Index Number : 113737/2008 BARAHONA, MARC0 vs. DEUTSCH, DONALD SEQUENCE NUMBER : 003 I INDEX NO. MOTION DATE MOTION SEQ.NO. - DISMISS The following papers, numbered I to Notice of MotionlOrder to Show Cause Answering Affidavits , were read on this motion tolfor -Affidavits - Exhibits IW s ) . IN o w INds). - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is de c I u G L ~ ~ J J I F U AMeborbrdu* D @ - ~ r s l o +- o / k - & a, wa CJ u7 u / ~ .. & U 4 FILED FEB 06 2013 NEW YORK COUNTY CLERK'S OFFICE n ,J.S.C. ..................................................................... 0 CASE DISPOSED fl DENIED 2. CHECK AS APPROPRIATE: ........................... MOTION I : 0GRANTED S 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER I. CHECK ONE: DO NOT POST ~ NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] . Y Plaintiff, -against- DONALD DEUTSCH and CLARK CONSTRUCTION CORPORATION, Defendants. Third-party Plaintiff, -against- FILED FEB 06 2013 A& R EQUIPMENT, LLC, In this action arising out of an accident at a construction site, defendant Donald Deutsch ( Deutsch ) moves for summary judgment dismissing the complaint against him. Plaintiffs and defendant Clark Construction Corporation ( Clark ) oppose the motion, which is granted for the reasons below. Background Plaintiff Marco Barahona ( Barahona ) was injured on September 11,2008, when he fell from the first floor into the basement of a six-story building located at 6 East 78* Street, New York, NY (L thepremises ) while removing marble flooring. Deutsch, who owns the premises, entered into an agreement with Clark to perform construction work, which involved the gut renovations of the premises. Clark hired third-party defendant A&R Equipment, LLC ( A&R ) 1 [* 3] U to perform demolition work at the premises. In this action, plaintiffs seek to recover damages based on alleged violations of Labor Law 55 240(1), 241(6) and 200. Deutsch now moves for summary judgment dismissing the complaint against him based on the exemption from liability under Labor Law $5 240 and 241(6) for one and two-family home owners. Deutsch argues that the exemption applies here based on the record which shows that the premises is a six story residence where he lives with his children and staff. He also asserts that the evidence shows that he did not control the work at issue such that he would be disqualified from the exemption. As for the Labor Law 5 200 and negligence claims, Deutsch asserts that these claims must also be dismissed as there is no evidence that he controlled or supervised Barahona s work or had notice of any allegedly dangerous condition prior to the accident or that he created such dangerous condition, In opposition, plaintiffs assert that the motion is premature as a representative of Clark has not been deposed and the Clark deposition would provide evidence concerning whether Deutsch directed or controlled the work. Plaintiffs also argue that Deutsch has not established that there is no commercial purpose for the work as required to apply the exemption from liability for one and two-family owners and, in support of this position, plaintiffs point to evidence that a four person office was built at the premises. Clark opposes the motion as premature based on outstanding discovery, including a notice of discovery and inspection served by Clark on Deutsch seeking, inter alia, information regarding the staff and employees working at the premises, and tax returns reflecting write-offs and deductions taken by Deutsch. In reply, Deutsch notes that since the time that he moved for summary judgment, the 2 [* 4] deposition of Clark s representative was taken, and such testimony confirms that Deutsch did not control or supervise the work. Deutsch also maintains that the discovery sought by Clark in its notice of discovery and inspection is not relevant to the issues raised on the motion. He also argues that since the record establishes that premises is used primarily for residential purposes, the existence of a home office does not render the one and two-family home owner exemption inapplicable, The Court of Appeals has noted that the exemption from the strict liability of Labor Law $5 240 (1) and.241 (6) for one and two-family homeowners, who do not direct or control the work, represents a legislative effort to fairly reflect the practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes, Cannon v Putnam, 76 NY2d 644, 649 (1 990). While the exclusion does not apply to one and two-family homes which are used for exclusively commercial purposes (van Amerogen v Domini, 78 NY2d 880, 882-883 [1991]), [ilt is well settled that the existence of both residential and commercial usages of a particular property does not result in the automatic loss to the dwelling owner of the exemption provided under the Labor Law. Johnson v, Fox, 268 AD2d 782, 784 (3d Dept 2000). Instead, [i]f the main purpose of the construction project is directly related to the owner s residential use of the property, the owner will receive the benefit of the exemption, even though the work may also incidentally benefit the commercial section of the structure. Id. Furthermore, the key circumstance in applying the exemption is not an owner s residential status but the residential nature of the site and purpose of the work. Castro v Mamaes, 5 1 AD3d 522, 523 (1st Dept 2008)(internal quotation marks and citations omitted). Under this standard, the court finds that Deutsch is entitled to summary judgment 3 [* 5] I dismissing the Labor Law 4 240( 1) and 241(6) claims based on the one and two-family home owner exemption. First, contrary to the opposing parties position, the existence of a four-person office at the premises does not raise a triable issue of act as to whether the exemption applies as the record shows that the premises was a six-story residence with an one-room office, and that majority work being performed related to the residential use of the premises. See Bartoo v. Buell, 87 NY2d 362, 368 (1996)(writing that a residence that houses a business may nevertheless retain its character as a home such that the exemption applies); Telfer v. Gunnison Lakeshore Orchards, Inc., 245 AD2d 620 (3d Dept 1997), lv denied, 92 NY2d 803(1998)(holding that corporate owner was entitled to exemption when it demonstrated that it used the property for primarily residential purposes); DeSabato v. 674 Carroll Street, Corn, 55 AD3d 656,658 (2d Dept 2008)(holding that exemption applies to property even though defendant had a home office there); Miller v. Trudeau, 270 AD2d 683 (3d Dept 2000)(holding that the presence of a professional office on the premises was insufficient to deny defendant the benefit of the exemption where the record demonstrated the residential use of the premises and the residential nature of the work performed). Furthermore, even assuming arguendo that Deutsch made business deductions to cover the cost of the renovation, this fact would not alter the primarily residential nature of the premises or the applicability of the one and two-family home exemption. Johnson v. Fox, 268 AD2d 782 (rejecting plaintiff s argument that the one and two-family dwelling exemption did not apply since the dwelling houses the real estate business of defendants and that defendants took certain business deductions for the cost of repairs). The record also establishes that Deutsch exercised no supervisory control over the work 4 [* 6] being performed by Barahona such that would deprive him of the exemption. See Yurkovich v Kvarner Woodworkina. Inc., 289 AD2d 183, 184 (1st Dept 2001)(holding that close supervisory involvement in the work at issue is necessary to disqualify the homeowner from the exemption). Accordingly, the one and two-family homeowner exemption applies to bar plaintiffs claims against Deutsch under Labor Law 66 240(1) and 241(6). In addition, Deutsch is entitled to summary judgment dismissing the negligence and Labor Law 6 200 claims against him as there is no evidence that Deutsch controlled or supervised the work of Barahona or had notice of any dangerous condition or created such condition. Finally, the additional discovery sought by Clark is insufficient to warrant the denial of the motion in the absence of showing that such discovery would raise a triable issue of fact. Steinberg v. Schnapp, 73 AD3d 171, 177 (1st Dept 20 1O)(noting that [a] grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence ). Conclusion In view of the above, it is ORDERED that the motion for summary judgment by defendant Donald Deutsch is granted, and the Clerk is directed to enter judgment accordingly in favor of Donald Deutsch; and it is further ORDERED that the caption is amended to reflect the dismissal of the claims against Donald Deutsch; and it is further ORDERED that the action against the remaining defendant; and it is further 5 .. . . . . .. . . [* 7] I c ORDERED that counsel for defendant Donald Deutsch shall serve a copy of this order with notice of entry upon the County Clerk (room 141B) and the Clerk of the Trial Support Office (room 158), who are directed to mark the court records to reflect the change in caption herein; and it is further ORDERED that the remaining parties shall proceed to mediation. #-- L E E) J*sk DATED: Janu \ T 1 0 3 6

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