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DEFENDANTS NOT LIABLE FOR INJURY SUFFERED WHILE PLAINTIFF WAS DOING WHAT HE WAS HIRED TO DO–REPAIR AN ELEVATOR; ISSUE CONSIDERED EVEN THOUGH RAISED FOR THE FIRST TIME ON APPEAL; IN ADDITION, DEFENDANTS ENTITLED TO THE HOMEOWNER’S EXEMPTION FROM LIABILITY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment in this Labor Law 200 and common law negligence action should have been granted. Plaintiff was injured doing the work he was hired to do—repairing an elevator. The issue was considered even though it was first raised on appeal. In addition, defendants were entitled to the homeowner’s exemption from liability pursuant to Labor Law 240(1):

We find merit to the defendants’ contention—raised for the first time on appeal but fully briefed by both sides … —that the injured plaintiff cannot succeed in his causes of action alleging a violation of Labor Law § 200 and common-law negligence, as “[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he [or she] has undertaken to fix”… . Indeed, the evidence in the record conclusively establishes that the injury-producing accident was caused by an unidentified defect in the very elevator that the injured plaintiff’s employer had been hired to repair. Accordingly, the defendants were entitled to summary judgment dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence.

… The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). The homeowner’s exemption to liability under Labor Law § 240(1) is available to “owners of one and two-family dwellings who contract for but do not direct or control the work.” Here, the defendants, as owners of the single-family townhouse where the accident occurred, established, prima facie, that they did not direct or control the home improvement work being done by the injured plaintiff and his employer at the time of the subject accident … . Soto v Justin Hochberg 2014 Irrevocable Trust, 2022 NY Slip Op 01193, Second Dept 2-23-22

 

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