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TRAVIS v. FREEDMAN

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 2, 1994

DRAKE W. TRAVIS and MARLENE TRAVIS, Plaintiffs, against HERBERT D. FREEDMAN, JUDITH P. FREEDMAN, BRUCE STOUTER individually and d/b/a CHILD'S PLAY or STOUTER CONSTRUCTION and STOUTER CONSTRUCTION CO., INC., Defendants.

The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This personal injury suit brought under New York Labor Law 240 and 241, filed in this court the basis of diversity of citizenship, arises out of a fall from a spackle bucket placed precariously on a wall during construction work on a home owned by defendant Judith Freedman. The Labor Law provisions impose strict liability under defined circumstances upon owners of property, but contain exceptions for owners of one and two family dwellings who contract for but do not direct or control work.

 The Freedmans have moved for summary judgment as to all claims against them by plaintiff and by co-defendants, all based on the same underlying asserted liability. The motions are granted; all claims against the Freedmans are dismissed.

 II

 Although there are numerous detailed factual disputes, the overarching facts are undisputed. Mrs. Freedman owned a one-family dwelling, and the Freedmans determined what type of work they wished done, obtained supplies and architectural plans, complained about some work, requested some additional work, and directed that work be stopped in certain instances. There is no indication of any actual negligent behavior on the part of the Freedmans having caused plaintiff's injury, and accordingly the case against them rises or falls on the question of strict liability under the Labor Law.

 There is no indication that the Freedmans attempted to direct the manner or method for performance of any work, what worker should do what, what tools should or should not be used, or where supplies such as spackle buckets should be placed. The activity of the Freedmans is thus the ordinary level of involvement which any responsible owner would prudently need to exhibit to secure good results from any contractor.

 New York law, applicable in this diversity suit, sustains the availability of the single-family owner exception except where supervision of the manner or method of performance of work was undertaken. Duda v. John Rouse Construction, 32 N.Y.2d 405, 345 N.Y.S.2d 524, 298 N.E.2d 667 (1973); Kelly v. Bruno, 190 A.D.2d 777, 593 N.Y.S.2d 555 (2d Dept 1993); Sanna v. Potter, 179 A.D.2d 982, 579 N.Y.S.2d 472 (3d Dept 1992). Surprise imposition of strict liability, which would discourage homeowners from making home improvements because of fear of lawsuits if they made requests or criticisms to contractors or handled purchasing of materials and obtained building approvals, is disfavored. Spinillo v. Strober, 192 A.D.2d 515, 595 N.Y.S.2d 825 (2d Dept 1993).

 There is no indication that Mr. Freedman acted as a construction contractor, rather than attorney for and assistant to his wife, the title holder. To make the division of title or duties between spouses a basis for liability which would not exist had a single person been involved would serve no purpose under the Labor Law, while eroding family values. Intrafamily arrangements should not work to favor or disfavor either the couple as a unit or outside parties in dealings between the couple and with others. See HBE Leasing Corp v. Frank, 851 F. Supp. 571 (SDNY 1994).

 Summary judgment is appropriate where, as here, "the parties . . . offer different characterizations of the facts, but . . . do not seriously dispute the relevant sequence of events . . ." Maxtone v. Burtchaell, 803 F.2d 1253, 1259 (2d Cir 1986).

 SO ORDERED.

 Dated: White Plains, N.Y.

 December 2, 1994

 /s/

 VINCENT L. BRODERICK, U.S.D.J.

19941202

© 1992-2004 VersusLaw Inc.



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