Alvarado v. French Council LLC , 149 A.D.3d 581 ( 2017 )

Alvarado v French Council LLC (2017 NY Slip Op 03052)

Alvarado v French Council LLC

2017 NY Slip Op 03052

Decided on April 20, 2017

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 20, 2017
Acosta, J.P., Richter, Andrias, Kahn, Gesmer, JJ.

3600 103813/09

[*1]Angel Alvarado also known as Angel Albarado, Plaintiff-Appellant,

v

French Council LLC, et al., Defendants-Respondents.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Mischel & Horn, PC, New York (Scott T. Horn of counsel), for French Council LLC, respondent.

Kaufman Borgeest & Ryan LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), for Lowell Hotel Properties, LLC, Lowell Hotel Associates, L.P., and Bruce Caporusso, respondents.

Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for Kensico Properties, N.V. Inc., respondent.

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered February 19, 2016, which granted defendants' motions for summary judgment dismissing the complaint, and denied plaintiff's cross motion for partial summary judgment on the issue of liability on his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff was injured when, while doing plastering work during the course of a renovation of a residence, he fell approximately six feet from a makeshift scaffold. The record shows that plaintiff's Labor Law § 200 and common-law negligence claims, which were premised on the theory that plaintiff's injuries arose from the means and methods of his work, were properly dismissed. Plaintiff testified that his employer instructed him on the tasks that he was to perform, and there is no evidence that defendants exercised any supervision or control over plaintiff's work (see Howard v Turner Constr. Co., 134 AD3d 523, 524-525 [1st Dept 2015]). Furthermore, plaintiff's Labor Law § 240(1) and § 241(6) claims were not viable in light of the homeowner's exemptions set forth in the statutes (see Bartoo v Buell, 87 NY2d 362, 368-369 [1996]; Farias v Simpson, 122 AD3d 466 [1st Dept 2014].

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 20, 2017

CLERK