Plaintiff alleged violations of NY Labor Law§§ 200 and 241(6). As §241(6) requires a plaintiff to establish a violation of the industrial code, plaintiff also alleged violations of 12 NYCRR §§ 21-1.10(b), 23-1.5(c)(3), 23-1.12(a), (c)(1)(2) and 23-9.2(a)(d).
We argued that Buckwalter was not liable to the plaintiff under Labor Law § 200 because she did not supervise or control the work and she was not on notice of the defective angle grinder. In addition, we argued the premises are exempt from liability under the homeowners’ exemption to Labor Law § 241.
The Court, citing Vera v. Low Income Marketing Corp., 145 AD3d 509 [1st Dept. 2016], granted summary judgment, since Buckwalter merely contracted for the work, was not home at the time of the accident and there was no evidence that she created the condition that caused the accident.
We also argued, citing Bartoo v Buell, 87 NY2d 362 , that despite the ground floor doctors’ office at the premises, Buckwalter was protected from liability under the homeowner’s exemption of Labor Law § 241(6) because the premises was a two-family dwelling and the porch in question was constructed at the back of the house outside Buckwalter’s parlor, as an extension of her unit.
The Court held that plaintiff’s submissions of an endorsement page and deed dated 9/23/16 (post-accident) and undated Streeteasy.com listings were not dispositive to show that the premises was a three-family dwelling. Rather, the deed in effect at the time of the accident, the certificate of occupancy and HPD search report, as well as the testimony as to the layout and occupancy of the premises, were controlling to show the premises was a two-family dwelling.
Furthermore, the exemption is available even where the premises is jointly used for residential and commercial purposes. The premises had two residential apartments – one single-floor unit jointly occupied by one family and one two-floor unit occupied by Buckwalter, which shared a common entrance.
We also moved for summary judgment against WM Dorvillier, and argued that it is obligated to indemnify and hold Buckwalter harmless and to cover her defense costs and expenses. We argued that according to her contract with WM Dorvillier to construct a porch at her residence, WM Dorvillier’s was obligated to supervise and control the work, to named Buckwalter as an additional insured on Dorvillier’s insurance policies and fully indemnify and hold her harmless.
Over the opposition of both the plaintiff and Dorvillier, Judge Gonzalez granted summary dismissal of plaintiff’s complaint and awarded Buckwalter all costs and expenses from Dorvillier, which Dorvillier’s insurer was obligated to pay.