The following numbered papers were read upon this motion:Notice of Motion/Order to Show Cause 12-19; 22-23Answering Papers 27Reply 29Briefs: Plaintiff’s/Petitioner’sDefendant’s/Respondent’s 24Decision/Order The defendant in this premises liability action seeks summary judgment dismissal of the complaint that alleges defendant negligently maintained her premises, resulting in an accumulation of ice and snow upon which plaintiff fell and injured himself. The incident occurred on March 3, 2015,1 at approximately 2:00 p.m., according to the verified Bill of Particulars. Further according to the Bill of Particulars, defendant either created the condition or had actual and/or constructive knowledge of its existence in sufficient time to remedy it.Defendant contends that plaintiff’s common law negligence cause of action as alleged in the pleadings should be dismissed because plaintiff was injured by the very condition that he had undertaken to remedy, namely an icy condition on defendant’s driveway.It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361 [1974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]).In support of her motion, defendant submits, inter alia, the pleadings, photographs of the driveway, her own deposition transcript and plaintiff’s deposition transcript. Based upon the testimony, it is established that plaintiff was acquainted with defendant, her elderly mother and her mother’s home health aide for years prior to the incident. Plaintiff was defendant’s handyman, performing numerous jobs at defendant’s single-family residence located in Mattituck, New York.According to plaintiff’s own testimony, he has experience as an HVAC technician, and in the construction trades, having renovated kitchens, and performed electrical work. From approximately 2012 to the date of the incident in 2015, plaintiff performed various types of work at defendant’s house, including staining doors, putting a floor down in the basement, repairing sheet rock, building a picnic table, cutting down some small trees, building a fireplace mantel, cleaning gutters, painting shutters, removing a garage, and building a guest house. Plaintiff testified that defendant paid him in cash. He could not accept checks because he did not have a bank account. None of the work that plaintiff performed was pursuant to written contracts, only verbal agreements. On an ongoing basis between 2012 and 2015, defendant would text plaintiff and request that he perform certain work, and he would agree. Defendant works in Brooklyn and lives in her Brooklyn apartment from Monday through Friday. Defendant would return to Mattituck on the weekends.The removal of the garage and building of the guest house started in 2013 and lasted until the end of 2014. During that time, plaintiff was at defendant’s house almost every day. He became friendly with defendant’s elderly mother and her home health aide, Sophie.It is undisputed that defendant’s driveway is U-shaped, providing two points of egress onto Holbrook Lane. The driveway is covered with gravel. One side of the driveway near the roadway is steeper than the other side. Both plaintiff and defendant testified that the steeper side was not frequently used. Plaintiff fell on the steeper side of the driveway near the roadway, as he was salting the area.Although he was not responsible for shoveling defendant’s driveway, he would salt the more frequently used portion of it so that he could reach the garage area where he was working, and he would occasionally salt the patio area near the house in late 2014. He estimated that he salted the more frequently used/right side of the driveway approximately three times before the day that he fell, but that he had not salted the other side prior to his fall.Plaintiff testified that he would buy fifty (50) pound bags of salt from the local hardware store during the winter of 2014-2015 to use at defendant’s premises. Plaintiff also testified that he never billed defendant for any of the salting that he did at her premises. He further stated that defendant “never asked me to do it except for the one time on the left-hand side of the driveway. That was the only time she really said, ‘Can you go over there and salt the driveway,’ and I said yes.” That “only time” is the date of plaintiff’s fall.According to plaintiff, the day before his accident, defendant made the request that he salt the steeper, left-hand side of the driveway stating, “‘Sophie can’t get the garbage cans;’” “‘It’s too slippery.’” Plaintiff knew that the garbage cans were placed at the end of that side of the driveway. Because of this request, plaintiff went to defendant’s house on March 3 or 4, 2015 to salt the steeper, unused side of defendant’s driveway. Before he arrived at defendant’s house, he testified that he first went to the local hardware store to purchase a new, 50-pound bag of salt. It was not snowing or raining on the date of his accident, but it had snowed a few days earlier.When he arrived at defendant’s house, she was not there, but was in Brooklyn working. Defendant’s mother and Sophie, the aide, were present at defendant’s house. Plaintiff and Sophie had a brief conversation. Sophie said to plaintiff that she cannot walk down the driveway because it was too icy. Plaintiff responded by saying, “Well, I picked up salt. I’m going to throw salt down. Lynn asked me to.”Plaintiff then set about to remedy the icy condition on the left-hand side of the driveway where he fell. Plaintiff placed the salt bag down on the driveway, cut it open, and used an empty coffee container that he had in his van to scoop out some salt. Plaintiff started at the top of the left-hand side of the driveway, shaking salt out onto the ground. He was facing forward, toward the roadway, and progressing down the left side of the driveway. When his coffee container was empty of salt, he returned to the salt bag to fill the container. As plaintiff moved down the left side of the driveway, he also moved the salt bag down with him. Plaintiff refilled the container three times before he fell.As he was spreading the salt before he fell, plaintiff testified that he was looking at the driveway, grabbing a handful of salt and “flick[ing] it out” from the large metal coffee container. He was spreading salt “all the way to the end of the driveway, and then, I was on the left-hand side, closest to the little wall…that’s where I slipped.” Further according to plaintiff, he had taken three or four steps in this area prior to him slipping and falling.Immediately prior to the moment that he fell, plaintiff stated that he was standing up, with the metal coffee container in his left hand, and throwing salt with his right hand. Plaintiff described that he took a step forward and his leg went out from underneath him. Plaintiff landed on his left side and slid down the remainder of the driveway. After he was able to crawl back up the driveway, he got into his van and called defendant’s mother who was inside the house. He told defendant’s mother that he did not finish the job because he hurt his knee, but that he would try to come back if he was not badly hurt. Thereafter, plaintiff returned to his home and did not seek medical attention until approximately two days later.When asked if a pothole, crack or bump in the driveway caused him to fall, or if it was an ice condition that caused him to fall, plaintiff indicated that it was definitely an icy condition that caused his fall. Plaintiff also identified his Bill of Particulars that he acknowledged signing and verifying. Plaintiff acknowledged that the allegation therein that he “slipped and fell on snow and ice accumulation” was correct. Furthermore, plaintiff verified at his deposition that the ice condition on the portion of the driveway where he fell was the very condition that he was there to remedy at defendant’s request.Based upon plaintiff’s own deposition testimony, defendant has established her prima facie entitlement to summary judgment dismissal of plaintiff’s common-law cause of action for negligence. “The common-law duty to provide employees with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the employee is to perform” (Annicaro v. Corporate Suites, Inc., 98 AD3d 542, 544 [2d Dept 2012]; see also Kowalsky v. Conreco Co., 264 NY 125 [1934]; Hansen v. Trustees of the M.E. Church of Glen Cove, 51 AD3d 725 [2d Dept 2008] [common-law negligence claim dismissed where plaintiff was injured by rotted soffit that he was engaged to repair]; Bedneau v. New York Hospital Medical Center of Queens, 43 AD3d 845 [2d Dept 2007] [common-law negligence cause of action dismissed where plaintiff repairing a leaking boiler slipped and fell on accumulated water resulting from the leak]; Waiters v. Northern Trust Co. of New York, 29 AD3d 325 [1st Dept 2006] [maintenance or cleaning worker has no claim at law for injury due to a dangerous condition that he or she was hired to remedy]; Wolfe v. Teele, 223 AD2d 854 [3d Dept 1996] [summary judgment dismissal of negligence action granted where plaintiff slipped and fell on icy parking lot while sanding the lot in an attempt to eliminate the icy condition]).In opposition, plaintiff offers only the affirmation of counsel, which is not evidence. Referring to the deposition testimony of the parties to this action, counsel argues that material issues of fact exist because the “testimonies offer conflicting accounts of whether plaintiff was being paid or not” for the salting of the driveway on the date of plaintiff’s fall. The Court does not view this as a material issue of fact. Whether defendant did nor did not reimburse plaintiff for the salt, or pay him specifically for his salting services, their ongoing relationship can reasonably be characterized as an employer/employee arrangement whereby plaintiff performed various odd jobs at the subject premises in return for cash. In fact, defendant testified that plaintiff had applied salt at her premises approximately three times during the relevant winter season, including the day that he fell.Although defendant testified that she had not spoken to plaintiff about salting the ice on her driveway prior to his fall, she also testified that she did not recall whether she had spoken to plaintiff within the week leading up to the date of his accident. In any event, even crediting counsel’s argument that plaintiff was performing an unpaid favor to defendant when he fell, this contention fails to undermine the established fact that plaintiff undertook to remedy the hazardous condition that caused his fall, and “[n]o responsibility rests upon an owner of real property to one hurt through a dangerous condition which he has undertaken to fix” (Kowalsky, supra at 128).Plaintiff’s opposition has failed to raise a triable issue of fact sufficient to defeat defendant’s summary judgment motion.Accordingly, defendant’s summary judgment motion is granted, and the complaint is dismissed.The foregoing constitutes the Decision and Order of this Court.Dated: April 8, 2019Riverhead, NYFINAL DISPOSITION [X] NON-FINAL DISPOSITION [ ]
