Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of defendant Levi Baumgarten (Baumgarten) filed on September 17, 2013, under motion sequence number four, for an order granting summary judgment in his favor on the issue of liability and dismissing the complaint pursuant to CPLR 3212.

- Notice of Motion [*2]

- Affirmations of counsel

- Exhibits A - H

- Affirmation in Opposition

- Exhibit A - F

- Reply Affirmation

BACKGROUND

On July 6, 2011, Yehonatan Levy (hereinafter the injured plaintiff) and his wife, Tali Levy suing derivatively, (hereinafter collectively the Levys) commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office.

By answer dated December 13, 2011, Baumgarten joined issue. On April 30, 2013, a note of issue was filed. The verified complaint and bill of particulars allege, among other things, that on April 17, 2009, while the injured plaintiff was working on a construction project at 1444 President Street, Brooklyn, New York (the subject property) he cut his hand while attempting to use a defective saw. It also alleges that Baumgarten owns the subject property and uses it for residential and commercial purposes.

The verified complaint alleges sixty-five allegations of fact in support of four causes of action. The first cause of action alleges violations of Labor Law § 200. The second cause and third cause of action allege violations of Labor Law § 241 (6). The fourth cause of action alleges Tali Levy's derivative claim for damages due to loss of services and consortium.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [*3][1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

Baumgarten's Motion to Dismiss the Labor Law 241(6) Claims

Labor Law § 241 (6) provides as follows:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith (emphasis added).

In those instances when Labor Law § 241 (6) applies, the duty to comply with the Commissioner's safety rules, which are set out in the Industrial Code (12 NYCRR), is nondelegable (Misicki v Caradonna, 12 NY3d 511, 515 [2009]). "To support a claim under Labor Law § 241 (6) ... the particular Industrial Code provision relied upon by a plaintiff must mandate compliance with concrete specifications and not simply declare general safety standards or reiterate common-law principles" (Id.). A breach of a duty imposed by a rule in the Code is merely some evidence for the fact finder to consider on the question of a defendant's negligence (Id.). Labor Law § 241 (6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner's rule-making authority (see Ross v Curtis—Palmer Hydro—Elec. Co., 81 NY2d 494 [1993]).

Baumgarten asserts that he is statutorily exempt from liability for violations of Labor Law § 241 (6) as he is an owner of a one family dwelling who contracted for, but did not direct or control the injured plaintiff's work. In order to satisfy his prima facie burden on the basis of the "homeowners' exemption," the defendant is required to demonstrate not only that his house was a single-or two-family residence, but also, that he did not "direct or control" the work being performed (see Arama v Fruchter, 39 AD3d 678, 679 [2007] Miller v Shah, 3 AD3d 521, 522 [2004] Saverino v Reiter, 1 AD3d 427 [2003] Stejskal v Simons, 309 AD2d 853, 854 [2003], affd 3 NY3d 628 [2004]). The statutory phrase "direct or control" is construed strictly and refers to situations where the owner supervises the method and manner of the work (see Boccio v Bozik, 41 AD3d 754, 755 [2nd Dept 2007] Arama v Fruchter, 39 AD3d 678 at 679 [2nd Dept 2007] Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 849 [2nd Dept 2006] Siconolfi v Crisci, 11 AD3d 600, 601 [2nd Dept 2004] Miller v Shah, 3 AD3d 521 at 522 [2nd Dept 2004]).

In support of the motion Baumgarten has submitted the transcript of his own deposition, the deposition transcript of the injured plaintiff, the certificate of occupancy of the subject property, a property profile overview from the New York City Department [*4]of Buildings, and a copy of the deed to the subject property.

For reasons set forth below, the deposition testimony of the injured plaintiff is disregarded. The deed establishes that Baumgarten owns the subject property. The certificate of occupancy establishes that the subject property is zoned as a two family residence. Baumgarten's deposition testimony establishes that he uses the subject property as a residence solely for himself and his immediate family. These three items of proof establish the first prong of the homeowner's exemption.

Baumgarten testified at his deposition that he did not direct or control the manner or method that the injured plaintiff performed his work. He further testified that he did not own and did not provide the injured plaintiff with the saw that was involved in his accident. This testimony establishes the second prong of the homeowner's exemption. Accordingly, Baumgarten presented evidence in admissible form establishing his exemption from the requirements of Labor Law § 241(6) and his entitlement to summary judgment dismissing the second and third cause of the action.

Baumgarten's motion to dismiss the Labor Law § 200 claims

Labor Law § 200 is merely a codification of the common law duty placed upon owners and contractors to provide employees with a safe place to work (see Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2nd Dept 2000]). "Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed." (Ortega v Puccia, 57 AD3d 54, 61 [2nd Dept 2008]). "These two categories should be viewed in the disjunctive" (Id.).

Where a premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident (see Azad v 270 5th Realty Corp., 46 AD3d 728, 730 [2nd Dept 2007] Kerins v Vassar Coll., 15 AD3d 623, 626 [2nd Dept 2005] Kobeszko v Lyden Realty Invs., 289 AD2d 535, 536 [2nd Dept 2001]).

By contrast, when the manner of work is at issue, "no liability will attach to the owner solely because [he or she] may have had notice of the allegedly unsafe manner in which work was performed" (Dennis v City of New York, 304 AD2d 611, 612 [2nd Dept 2003] see Comes v New York State Elec. & Gas Corp., 82 NY2d 876 at 877 [1993] Ferrero v Best Modular Homes, Inc., 33 AD3d 847at 851 [2nd Dept 2006]). Rather, when a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against the owner or general contractor cannot be had under Labor

Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998] Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981] Gallello v MARJ Distribs., Inc., 50 AD3d 734, 735 [2nd Dept 2008]).

Although property owners often have a general authority to oversee the progress of [*5]the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200 (see Natale v City of New York, 33 AD3d 772, 773 [2nd Dept 2006] Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681 at 683 [2nd Dept 2005] Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224 [2nd Dept 2004]). The determinative factor on the issue of control is not whether a defendant furnishes equipment but whether he has control of the work being done and the authority to insist that proper safety practices be followed (see Eldoh v Astoria Generating Co., L.P., 81 AD3d 871, 875 [2nd Dept 2011] [quoting Everitt v Nozkowski, 285 AD2d 442, 443—444 [2nd Dept 2001]).

Baumgarten's deposition testimony establishes that he is not liable under Labor Law § 200 because he did not exercise any supervision or control over the methods or means that the injured plaintiff performed his work at the time of his accident. He did not furnish the equipment nor was he responsible for the safety of the workers. Baumgarten prima facie showing of entitlement to dismissal of the Labor Law §§ 200 and 241(6) causes of action shifts the burden to the Levys to raise a genuine issue of material fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

The Levys' Evidence in Opposition

The Levys contend that there are triable issues of fact as to Baumgarten's entitlement to the homeowner's exemption pursuant to Labor Law § 241(6). Specifically, they claim that the subject property is not utilized exclusively as a one family residence but is also used for commercial purposes. They also claim that Baumgarten controlled the manner or method that the injured plaintiff performed his work.

In support of these contentions they submitted the injured plaintiff's affidavit and deposition transcript, a printout from the New York State Department of State, a printout from an internet web page, two photographs, and a document from an individual named Ross Mallor.

The twelfth paragraph of the injured plaintiff's affidavit contains the following statement:"I had a translator present with me who translated all of my

attorney's words for me from English to Hebrew and I responded to my attorney in Hebrew, which was translated

to English."

CPLR 2101(b) provides as follows:

Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate.

"CPLR 2101(b) requires that papers served or filed be in the English language, but some witnesses don't have the ability to make an affidavit in English. The proper procedure in that case is to submit an affidavit in the foreign language, accompanied by an English translation. The English translation must be authenticated with an affidavit by the translator, stating his or her [*6]qualifications and that the translation is accurate" (see CPLR Practice Commentaries, by Thomas F. Gleason, McKinney's Cons. Laws of NY, Book 7B, CPLR 2101:2 Language).

The injured plaintiff's affidavit shows that it was created with the help of a translator. In accordance with CPLR 2101 (b), a translator's affidavit was necessary to render the injured plaintiff's affidavit admissible. The absence of such a translator's affidavit rendered the injured plaintiff's English affidavit facially defective and inadmissible (see Martinez v 123—16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2ndDept 2008]).

The injured plaintiff's deposition transcript has a similar admissibility problem. The following sentence appears on page 5 of the deposition just before the first question posed to the injured plaintiff: "Lazar Cohen, a Hebrew solemnly swore to translate the following from to Hebrew and from to English."

This apparently incomplete sentence establishes that Lazar Cohen translated from English to Hebrew the questions asked of the injured plaintiff and translated his answers from Hebrew to English. In order for a witness to testify at trial, or to proffer evidence in admissible form for a summary judgment motion when the affiant or witness testifies in a foreign language, an English language translation sworn to by the translator must be submitted (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96 [1st Dept 1999] see also Reyes v Arco Wentworth Management Corp., 83 AD3d 47 [2nd Dept 2011]). In the instant matter, the injured plaintiff's deposition transcript fails to contain the requisite certification and swearing to by the translator to render it admissible.

Material derived from an official government website may be the subject of judicial notice (Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13, 20 [2nd Dept 2009]). Consequently, the court may consider the printout from the New York State Department of State. That document shows that the address of the subject property is listed as the address of a domestic not for profit corporation known as the Chabad Lubavitch Mitvah Tank Inc. The other printout is from an internet web page and is described as the results of a google search for Chabad in Brooklyn. This exhibit contains inadmissible hearsay. The images depicted on the two annexed photographs were identified by Baumgarten in his deposition as a banner displayed on the subject property. He testified that the banner has a religious message. The banner contains the word "welcome" and additional written text in a foreign language, presumably Hebrew. The Levys offered nothing to translate the foreign language text depicted on the banner. The foreign language component of the banner is therefore inadmissible and of no probative value.

The document signed by Ross Mallor (hereinafter Mallor) is denominated an affidavit but is a statement purportedly affirmed under penalty of perjury. Mallor does not claim to be an attorney, physician, osteopath or dentist. Nor does he set forth a religious basis for affirming in accordance with CPLR 2106. Any person who, for religious or other reasons, wishes to use an affirmation as an alternative to an affidavit may do so. However, to be effective such an affirmation must be made before a notary public or other authorized official (CPLR 2309)" (Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 800 [1981]). Assuming, for the sake of argument, that Mallor's affirmation is admissible, it merely offers inadmissible hearsay information obtained from an unidentified female and states the results of his search of the New York State Department of State website pertaining to the the Chabad Lubavitch Mitvah Tank Inc. Mallor's affirmation does not add anything to the other evidence submitted by the Levys.

[*7]There is authority allowing the Court to consider the injured plaintiff's deposition testimony because it was used by each of the parties without objection by their opponent.^[FN1] Therefore, assuming for the sake of argument that the deposition transcript of the injured plaintiff is admissible, it would, nevertheless, fails to raise a genuine issue of material fact. The injured plaintiff's deposition testimony establishes that Baumgarten did not give him the saw that injured him, nor did he direct or control his work as contemplated under Labor Law § 241 (6). At most, his transcript shows that Baumgarten monitored the progress, approved the aesthetics and oversaw the work's general quality. A homeowner's involvement in these areas reflects typical homeowner interest in the ongoing progress of the work and does not constitute the kind of direction or control necessary to overcome the homeowner's exemption from liability" (see Affri v Basch, 45 AD3d 615, 616 [2nd Dept 2007] Arama v Fruchter, 39 AD3d 678, 679 [2nd Dept 2007] Edgar v Montechiari, 271 AD2d 396, 397 [2nd Dept 2000]).

The Levys contend that Baumgarten used the subject property for commercial purposes and as such he is not an exempt homeowner. In support of this contention they submit a printout from the Secretary of State which shows that the address of "Chabad Lubavitch Mitvah Tank, Inc" is the same as the address of the subject property. The injured plaintiff testified that the basement was not used by the family. However, the basement was the location of the construction work that the injured plaintiff was performing. Even if the basement of the subject property contained an office connected to the Baumgarten's corporation, his use of a portion of his residence for commercial purposes does not automatically cause him to lose the protection of the exemption (Umanzor v Charles Hofer Painting & Wallpapering, Inc. 48 AD3d 552 [2nd Dept 2008] citing Ramirez v Begum, 35 AD3d 578 [2nd Dept 2006] Small v Gutleber, 299 AD2d 536 [2nd Dept 2002]). The Levys have merely submitted evidence of commercial activity incidental to the use of the subject property's primary use as a residence, which is insufficient to raise a triable issue of fact as to the premises being used as a commercial space (Umanzor v Charles Hofer Painting & Wallpapering, Inc.48 AD3d 552 [2nd Dept 2008] citing Putnam v Karaco Indus. Corp., 253 AD2d 457 [2nd Dept 1998] cf. Krukowski v Steffensen, 194 AD2d 179 [2nd Dept 1993]).

Therefore, the Levys have failed to raise a triable issue of fact and the causes of action based on violations of Labor Law §§ 200 and 241 (6) must be dismissed. Furthermore, Tali Levy's derivative claims must follows the dismissal of the Labor Law claims that it is dependent upon. Accordingly, the defendants motion for summary judgment dismissing the complaint is granted.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.