        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

831
CA 15-02110
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


BRYAN W. CUMMINGS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DOO WHA SUNG, DEFENDANT-APPELLANT.


BARCLAY DAMON, LLP, ALBANY (JONATHAN H. BARD OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MARTIN J. ZUFFRANIERI, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered June 22, 2015. The order denied the motion
of defendant for summary judgment dismissing the complaint and granted
the cross motion of plaintiff for partial summary judgment on the
issue of defendant’s liability under Labor Law §§ 200 and 241 (6).

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiff’s cross motion
and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for the amputation of his thumb
while using a table saw at defendant’s house. At the time of the
accident, plaintiff was working as a laborer on defendant’s renovation
project. We conclude that Supreme Court properly denied defendant’s
motion for summary judgment dismissing the complaint. With regard to
the third cause of action, which alleges a violation of Labor Law
§ 241 (6), we conclude that defendant failed to meet his burden of
establishing as a matter of law that he is entitled to the benefit of
the statutory homeowner’s exemption from liability, and we further
conclude, in any event, that plaintiff raised a triable issue of fact.
On this record, it cannot be determined as a matter of law whether
defendant directed or controlled the method and manner of the work
being done on the house, including the work being carried out by
plaintiff at the time of the accident (see Rodriguez v Gany, 82 AD3d
863, 864-865; Acosta v Hadjigavriel, 18 AD3d 406, 406-407; see also
Pavon v Koral, 113 AD3d 830, 831).

     We likewise conclude that defendant failed to meet his burden of
establishing his entitlement to judgment as a matter of law with
respect to the first and second causes of action, which allege
defendant’s common-law negligence and violation of Labor Law § 200 in
failing to provide plaintiff with a safe place to work. There are
                                 -2-                           831
                                                         CA 15-02110

triable issues of fact concerning whether defendant lacked the
authority to direct, supervise, or control plaintiff and his work and
whether defendant was free from negligence in the occurrence of the
accident (see Biscup v E.W. Howell, Co., Inc., 131 AD3d 996, 998; see
generally Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352-353;
Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877).

      In light of the triable issues of fact noted above, we further
conclude that the court erred in granting plaintiff’s cross motion for
partial summary judgment on the issue of defendant’s liability under
Labor Law §§ 200 and 241 (6), and we modify the order accordingly.
With respect to the latter cause of action, we note that “the
violation of a specific provision of the Industrial Code, even if
admitted by defendant, ‘does not establish negligence as a matter of
law’ ” (Fisher v Brown Group, 256 AD2d 1069, 1069), but is “merely
some evidence to be considered on the question of a defendant’s
negligence” (Zimmer v Chemung County Performing Arts, 65 NY2d 513,
522, rearg denied 65 NY2d 1054; see Rizzuto, 91 NY2d at 349).
Further, the record evinces triable issues of fact concerning whether
there was culpable conduct on the part of plaintiff and whether any
violation of the Industrial Code was a proximate cause of the accident
(see Puckett v County of Erie, 262 AD2d 964, 965; see generally
Calderon v Walgreen Co., 72 AD3d 1532, 1534, appeal dismissed 15 NY3d
900).

     Conflicting evidence also precludes partial summary judgment in
plaintiff’s favor on the section 200 cause of action. Indeed, we note
that “[n]egligence actions do not ordinarily lend themselves to
summary disposition” (Chilberg v Chilberg, 13 AD3d 1089, 1090, citing
Ugarizza v Schmieder, 46 NY2d 471, 475). Whether a defendant’s
conduct fell short of the standard of ordinary care is an issue that
“ ‘can rarely be decided as a matter of law’ ” (Ugarizza, 46 NY2d at
475, quoting Andre v Pomeroy, 35 NY2d 361, 364).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
