SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU. Plaintiff, INDEX NO. 8901/07. Defendant.

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1 ,: L M SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: Hon. Thomas Feinman Justice MARO CASTELLANOS TRIALIIAS PART 18 NASSAU COUNTY Plaintiff, INDEX NO. 8901/07 - against - x X X UNITED CEREBRAL P ALSY ASSOCIATION OF GREATER SUFFOLK, INC. Defendant. MOTION SUBMISSION DATE: 4/27/09 MOTION SEQUENCE NO. The following papers read on this motion: Notice of Motion and Affdavits... Affrmation in Opposition... Reply Affirmation RELIEF REQUESTED, Inc., (hereinafter The defendant, United Cerebral Palsy Association of Greater Suffolk referred to as "UCP" 3212 dismissing plaintiffs action ), moves for an order pursuant to CPLR 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 sumar judgment, and that the defendant is on the grounds that the defendant neither directed or controlled the work entitled to the one-family dwellng exemption to the strict liabilty 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 furherance of a commercial enterprise, is not entitled to the one- family dwelling exemption.

2 BACKGROUND The plaintiff, employed by non-par 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 Januar 25, The plaintifftestified that one ofthe side supports for the ladder was broken. The defendant hired RJD to perform renovation work at the house. The plaintiff testified that he received instrctions from David", his supervisor at RJD, and his co-worker Miguel", who helped translate David' instrctions 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 propert on the date ofloss and described the propert 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 futue 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' curent title is the Associate Residential Director, the Supervisor for the Community Residential Facilty 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 purose 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, laundr room and two bathooms are shared by the residents. Ms. Sadowski states that UCP is a non profit organzation 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 anexes 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 dwellng. The defendant also anexes a certified copy of the Certificate of Occupancy for 25 Lincoln Road, Medford, New York, dated October , issued to UCP which indicates that the residence is listed as "SFD", a single family dwellng. The defendant also anexes 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(t), which states in pertinent par 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 dwellng within the meaning ofthe homeowner s exemption to Labor Law ~240(1) and 241 (6). The plaintiff to wit, provides that the home is one of many homes owned by UCP one of 37 such like facilities.

3 Furhermore, 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 dwellngs 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 fuded by Medicare, Medicaid and Social Security benefits. As so, plaintiff submits, the renovation being performed was in fuherance of a commercial enterprise. The plaintiff also submits that UCP, by Mr. Grber, Mr. Bubalo and Mrs. Cheryl Olson from the New York State Offce 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 planed. DISCUSSION Labor Law ~ 240( 1 ) provides inter alia that all contractors and owners, except owners of one and two family dwellngs who contract for, but do not direct or control the work being performed at a building or strcture, shall fuish or erect ladders, so as to give proper protection to a person so employed. The cours 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 propert is used solely as a one or two-family dwellng, and where the homeowner does not control the work.. (Cannon v. Putnam 76 NY2d 644). "An owner of a one - or two family dwellng is exempt from liability under Labor Law ~~240 and 241, uness 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(t), the home is a family dwellng 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 dwellng is, or is not, a one or two-family dwellng. The Cour of Appeals in Cannon v. Putnam, supra defined the test in determining whether the homeowner exemption applied to a dwellng owner as "whether the exemption is available to an owner in a paricular case turs on the site and purpose of the work, and therefore, the existence of both residential and commercial uses on a propert does not automatically disqualify a dwellng owner from invoking the doctrine. Thereafer, the Cour of Appeals in Bartoo v. Buell, 87 NY2d 362 found that when "an owner of a one or two-family dwellng contracts for work that directly relates to residential use of home, even if work also serves a commercial purpose, the owner is shielded by

4 homeowner exemption from absolute liability of Labor Law. The Cour in Bartoo, supra reviewed two cases, Bartoo v. Buell and Anderson v. Flanagan. The structues being renovated were used for both commercial and residential purposes. The Cour found in Bartoo that the repair work on the roof of a bar was related to the residential use of the bar, "notwithstanding fact that homeowner leased space to others in bar since any commercial benefit was ancilar to substantial residential purose served by fixing leaking bar roof' (Id.) The Court in Anderson, found where the, that the "(a)ddition of bedroom was directly defendant operated a day care center out of her home 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 A residence that (Id.) houses a business may nevertheless retain its character as a home. (Id.) Applying the standard set forth by the Cour of Appeals to the matter sub judice the defendant is entitled to the homeowner s exemption as the purose 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 fuded 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 propert". The primar use and purose 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 ancilar to the substantial residential purose. The Second Deparent held the exemption applied to the homeowner who had a home office in her aparment since the work that was (DeSabato v. 674 Carroll Street contracted for directly related to the residential use of her home. Corp. 55 AD3d 656), and to the owner of a townouse "not withstanding the fact that the townouse was a multiple family dwellng at the time of the accident" where the purose of the renovation was for a one-family use. (Stejskal v. Simons 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 Cour 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 (Garcia, supra maner of the work." citing Kalakowski 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 suffcient 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 from the maner in which work is performed at a work site, the owner must have supervised or controlled the work performed atthe site. (Boccio v. Bozik 41 AD3d 754). At bar, the defendant' 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 Angelucci, as in 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.

5 Even when the homeowner loaned a ladder to a worker, where the homeowner did not supervise the methods or maner ofthe 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 suffcient evidence that the defendant supervised, directed or (Garcia v. Petrakis 306 AD2d 315). controlled the work ofthe plaintiff. 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 dwellng, who did not control, direct or supervise the plaintiffs work, did not owe a statutory or common-law duty to the plaintiff. CONCLUSION In light of the foregoing, the defendant's motion for sumar judgment dismissing plaintiff s complaint as and against the defendant is granted. ENT Dated: June cc: Valdebenito & Ardito, LLP Gorton & Gorton LLP NASSJ\\J ERE J\j\, "\ 11n COUNTY CL\ ' i 1'l SOff\CE