Brown v. George , 29 N.Y.S.3d 309 ( 2016 )

Brown v George (2016 NY Slip Op 02722)

Brown v George

2016 NY Slip Op 02722

Decided on April 7, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 7, 2016
Acosta, J.P., Renwick, Manzanet-Daniels, Kapnick, Webber, JJ.

767 300279/12

[*1]Christopher Brown, Plaintiff-Respondent,

v

Wilbert George, Defendant-Appellant, Jacquline George, Defendant.

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant.

Popkin & Popkin, LLP, New York (Eric F. Popkin of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered October 20, 2014, which, insofar as appealed from, denied the motion of defendant Wilbert George for summary judgment dismissing the Labor Law § 200 and common-law negligence claims as against him, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendant George established entitlement to judgment as a matter of law in this action where plaintiff cable service technician was injured when he fell from a ladder while working at defendant's home. Defendant submitted, inter alia, plaintiff's deposition testimony wherein he described his fall from the ladder he had leaned against defendant's house. The testimony "establishe[d] that there was no dangerous condition on the premises which caused the accident, but rather that it was caused by the manner in which" plaintiff performed his work (Lombardi v Stout, 80 NY2d 290, 295 [1992]). Defendant cannot be held liable for plaintiff's injuries resulting from the means or methods of his work, since it is undisputed that defendant did not exercise supervisory control over the work (see id.).

The court erred in finding that defendant failed to make a prima facie showing that the accident was not caused by a defective condition on the premises. The conclusory allegation in plaintiff's bill of particulars, that defendant created or had notice of a defective condition on the exterior of the house, was insufficient to raise a triable issue of fact (compare Sanchez v National R.R. Passenger Corp., 21 NY3d 890 [2013]). Indeed, plaintiff testified that he was unaware of any condition of the building that caused his fall, and he tacitly conceded that the accident was not caused by a premises defect by making no such argument in opposition to defendant's motion for summary judgment (see Cullen v Naples, 31 NY2d 818, 820 [1972]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 7, 2016

CLERK