WORKER'S ACT OF CLIMBING ONTO ROOF WAS "SOLE PROXIMATE CAUSE" OF HIS INJURY AND DEATH; DEFENSE SUMMARY JUDGMENT GRANTED

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Sonia Areli Amaya Serrano v. Sophia Popovic

Date: Jan. 10, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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In an action to recover damages for personal injuries and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Rosengarten, J.), entered August 19, 2010, as, upon an order of the same court dated June 24, 2010, denying their motion for summary judgment on the issue of liability against the defendant Pami Construction Corp. and granting those branches of the motion of the defendant Pami Construction Corp., and the separate motion of the defendant Sophia Popovic, individually and as executor of the estate of Jacob Popovic, which were for summary judgment dismissing the complaint insofar as asserted against each of them, is in favor of those defendants and against the plaintiff, dismissing the complaint insofar as asserted against them.

ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs.

On February 21, 2007, during the construction of a single‑family house and attached garage owned by Sophia Popovic and Jacob Popovic (hereinafter together the Popovics), the plaintiffs' decedent fell from the roof of the house. The plaintiffs subsequently commenced this action against, among others, Sophia Popovic, individually and as executor of the estate of Jacob Popovic, and Pami Construction Corp. (hereinafter Pami), the construction manager hired by the Popovics, to recover damages for personal injuries and wrongful death, alleging causes of action sounding in common‑law negligence and violations of Labor Law Secs. 200, 240(1), and 241(6).

The Supreme Court properly granted that branch of the motion of Sophia Popovic, individually and as executor of the estate of Jacob Popovic, which was for summary judgment dismissing the complaint insofar as asserted against her. With respect to the causes of action alleging violations of Labor Law Secs. 240(1) and 241(6), Sophia Popovic made a prima facie showing that the work was performed at a one‑family dwelling and that the Popovics did not direct or control the work (see Rodriguez v. Gany, 82 A.D.3d 863, 864-865, 918 N.Y.S.2d 187; Chowdhury v. Rodriguez, 57 A.D.3d 121, 126, 867 N.Y.S.2d 123). With respect to the causes of action alleging common‑law negligence and a violation of Labor Law Sec. 200, Sophia Popovic made a prima facie showing that the Popovics did not have the authority to supervise or control the decedent's work (see Ferreira v. City of New York, 85 A.D.3d 1103, 1106, 927 N.Y.S.2d 100; Ortega v. Puccia, 57 A.D.3d 54, 61-63, 866 N.Y.S.2d 323). In opposition, the plaintiffs failed to raise a triable issue of fact.

The Supreme Court also properly granted that branch of Pami's motion which was for summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted by Pami showed that, prior to the date of the accident, safety equipment, including planks and brackets, had been removed from the main roof of the house and placed on the roof of the garage in anticipation of the completion of the installation of the garage roof. The evidence also showed that, on the date of the accident, the decedent was instructed to work only on the garage roof, and was not instructed to do any work on the main roof. Under the circumstances of this case, Pami established, as a matter of law, that the decedent's decision to climb onto the roof of the main house, where there was no safety equipment, was the sole proximate cause of his injuries (see Robinson v. E. Med. Ctr., LP, 6 N.Y.3d 550, 554-555, 814 N.Y.S.2d 589, 847 N.E.2d 1162; Montgomery v. Fed. Express Corp., 4 N.Y.3d 805, 806, 795 N.Y.S.2d 490, 828 N.E.2d 592; Capellan v. King Wire Co., 19 A.D.3d 530, 532, 798 N.Y.S.2d 76; Misirlakis v. East Coast Entertainment Props., 297 A.D.2d 312, 312-313, 746 N.Y.S.2d 307). In opposition, the plaintiffs failed to raise a triable issue of fact.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

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