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

1342
CA 11-00541
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.


JOSEPH BYRD, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FREDERICK E. RONEKER, JR., DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.
(APPEAL NO. 1.)


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (NANCY A. LONG OF COUNSEL),
FOR DEFENDANT-APPELLANT.

BARRY J. DONOHUE, TONAWANDA, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered October 25, 2010 in a personal injury action.
The order denied the motion of defendant Frederick E. Roneker, Jr. for
summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint against defendant Frederick E. Roneker, Jr. is
dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
personal injuries he sustained when he fell from a ladder while
cutting a tree limb at a single-family home owned by Frederick E.
Roneker, Jr. (defendant). Defendant hired a contractor to repair the
roof of his home, and the contractor in turn hired plaintiff as an
independent contractor to cut tree branches that extended over the
roof. The complaint asserts causes of action for the violation of
Labor Law § 240 (1) and § 241 (6), as well as for common-law
negligence. In appeal No. 1, defendant appeals from an order denying,
without prejudice to renew following additional discovery, his motion
for summary judgment dismissing the complaint against him. In appeal
No. 2, defendant appeals from an order denying his motion seeking to
settle the record on appeal by excluding plaintiff’s memorandum of law
therefrom.

     Addressing first the order in appeal No. 2, we conclude that
plaintiff’s memorandum of law was properly included in the record on
appeal, but only for the limited purpose of determining whether
certain of plaintiff’s contentions are preserved for our review (see
Matter of Lloyd v Town of Greece Zoning Bd. of Appeals [appeal No. 1],
292 AD2d 818, 818-819, lv dismissed in part and denied in part 98 NY2d
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                                                         CA 11-00541

691, rearg denied 98 NY2d 765). The memorandum of law otherwise is
not properly before us, however, inasmuch as it is well settled that
“[u]nsworn allegations of fact in [a] memorandum of law are without
probative value” (Zawatski v Cheektowaga-Maryvale Union Free School
Dist., 261 AD2d 860, lv denied 94 NY2d 754). We therefore modify the
order in appeal No. 2 accordingly.

     With respect to the order in appeal No. 1, we conclude that
Supreme Court erred in denying defendant’s motion. Labor Law § 240
(1) and § 241 (6) both exempt from liability “owners of one[-] and
two-family dwellings who contract for but do not direct or control the
work” (see Pfaffenbach v Nemec, 78 AD3d 1488). In support of his
motion, defendant established as a matter of law that he did not
direct or control plaintiff’s work, and in response plaintiff failed
to raise an issue of fact (see generally Zuckerman v City of New York,
49 NY2d 557, 562). “ ‘Whether an owner’s conduct amounts to directing
or controlling depends upon the degree of supervision exercised over
the method and manner in which the work is performed’ ” (Gambee v
Dunford, 270 AD2d 809, 810; see Affri v Basch, 13 NY3d 592, 596;
Burnett v Waterford Custom Homes, Inc., 41 AD3d 1216, 1217). “There
is no direction or control if the owner informs the worker what work
should be performed, but there is direction and control if the owner
specifies how that work should be performed” (Gambee, 270 AD2d at 810
[emphasis added]).

     Here, although defendant instructed plaintiff to cut down the
tree limb in question and told him to cut the limb at its base, there
is no evidence that defendant told plaintiff how to perform that task,
nor did defendant provide plaintiff with any tools or equipment (see
generally Affri, 13 NY3d at 596). In fact, it is undisputed that
defendant was inside the house when plaintiff fell. The mere fact
that defendant told plaintiff that he wanted the limb cut at its base,
rather than where plaintiff initially had begun to cut the limb, does
not subject him to liability under Labor Law § 240 (1) or § 241 (6)
(see Affri, 13 NY3d at 596). Indeed, we conclude that this case is
analogous to Schultz v Noeller (11 AD3d 964, 965), wherein we held
that the homeowner’s directive concerning where to install electrical
outlets and switches, but not how to install them, did not constitute
the requisite direction or control over the manner or method of the
injured plaintiff’s work to render the homeowner liable under sections
240 (1) or 241 (6).

     We further reject plaintiff’s contention that there is an issue
of fact whether defendant was having the work done at his house for
commercial purposes, which would also render the homeowner exemption
inapplicable (see generally Dineen v Rechichi, 70 AD3d 81, lv denied
14 NY3d 703). Although plaintiff submitted evidence that defendant
was having his roof repaired upon the advice of a realtor who intended
to list the property for sale, defendant was residing in the house at
the time of the accident, and thus the house remained his “dwelling”
within the meaning of Labor Law § 240 (1) and § 241 (6) (cf. Truppi v
Busciglio, 74 AD3d 1624; Lenda v Breeze Concrete Corp., 73 AD3d 987,
989). Where, as here, the work “directly relates to the residential
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                                                         CA 11-00541

use of the home, even if the work also serves a commercial purpose,
[the] owner is shielded by the homeowner exemption from the absolute
liability” of sections 240 (1) and 241 (6) (Bartoo v Buell, 87 NY2d
362, 368; see Cansdale v Conn, 63 AD3d 1622).

     With respect to the common-law negligence cause of action, which
both parties construe as also asserting a violation of Labor Law §
200, we conclude that the court should have also granted that part of
defendant’s motion for summary judgment dismissing that cause of
action. Defendant established as a matter of law that he did not
exercise supervisory control over plaintiff’s work and that he neither
created nor had actual or constructive notice of the allegedly
dangerous condition that caused the accident, and plaintiff failed to
raise an issue of fact (see Karcz v Klewin Bldg. Co., Inc., 85 AD3d
1649, 1651-1652; Talbot v Jetview Props., LLC, 51 AD3d 1396, 1397).

     Finally, we note that, although the court denied defendant’s
motion without prejudice to renew following completion of discovery,
depositions had in fact been completed, and the only items of
discovery still outstanding were the written contract between
defendant and the contractor, and the listing agreement between
defendant and his realtor. Because there is no indication on the
record before us that either document would be relevant to the
dispositive issues of whether defendant is liable under the Labor Law
or for common-law negligence, we conclude that neither document would
reveal “facts essential to justify opposition” to the motion (CPLR
3212 [f]). Thus, the court should have granted defendant’s motion
even though defendant had not yet produced the requested documents.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
