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

572
CA 11-02460
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


GERALD TANNER AND MELANIE TANNER,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

SHAWN M. RYAN AND SHANNON M. RYAN,
DEFENDANTS-APPELLANTS.


MITCHELL GORIS STOKES & O’SULLIVAN, LLC, CAZENOVIA (MARK D. GORIS OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

HARRIS BEACH PLLC, SYRACUSE (LAUREN H. SEITER OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), dated March 4, 2011 in a personal injury action. The
order denied the motion of defendants for summary judgment dismissing
the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Gerald Tanner (plaintiff) when he fell from the
roof of a home owned by defendants, allegedly as the result of
defendants’ negligence. Supreme Court properly denied defendants’
motion for summary judgment dismissing the complaint. It is well
established that a landowner has a common-law duty to provide workers
with a reasonably safe place to work (see Lombardi v Stout, 80 NY2d
290, 294). In order to establish liability, a plaintiff must show
that the landowner supervised and controlled the work (see id. at 295;
Luthringer v Luthringer, 59 AD3d 1028). Here, plaintiff testified
that Shawn M. Ryan (defendant) asked plaintiff and his brother to help
perform a temporary fix on the roof of his house, and that defendant
provided plaintiff and his brother with the necessary tools to
complete the job. Additionally, plaintiff testified that defendant
assisted in the work by passing plywood to plaintiff, and by cutting
pieces of plywood that did not fit properly. Plaintiff also testified
that defendant mocked his request for a rope to tie himself off, so
plaintiff went up on the roof without a rope. Even assuming,
arguendo, that defendants met their burden of establishing their
entitlement to summary judgment, we conclude that plaintiffs’
submissions raise an issue of fact whether defendant supervised or
controlled plaintiff’s work (see Ennis v Hayes, 152 AD2d 914, 915; cf.
                                 -2-                           572
                                                         CA 11-02460

Luthringer, 59 AD3d at 1030). We reject the contention of defendants
that plaintiff’s affidavit was a feigned attempt to avoid the
consequences of his prior deposition testimony (see Kalt v Ritman, 21
AD3d 321, 323).




Entered:   April 20, 2012                      Frances E. Cafarell
                                               Clerk of the Court
