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Affri v. Basch

November 24, 2009

AVRAHAM AFFRI, APPELLANT,
v.
YAAKOV BASCH ET AL., RESPONDENTS.



The opinion of the court was delivered by: Pigott, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The issue before us is whether defendants exercised sufficient direction and control over plaintiff's work to overcome the one or two-family dwelling exception found in Labor Law §§ 240 and 241. We hold that they did not and therefore affirm the order of the Appellate Division.

Defendants hired plaintiff, a neighbor who had previously done small jobs for them, to perform renovations to an apartment within their home. The work included, as relevant to this appeal, the installation of appliances. Plaintiff fell from a ladder while installing a vent on the roof and suffered injuries that required several surgeries.

Plaintiff brought this action against defendants, alleging violations of Labor Law §§ 200, 240 (1) and 241 (6) and common law negligence. Following discovery, defendants moved for summary judgment dismissing the complaint asserting, among other things, that as owners of a two-family dwelling they were exempt from the duties imposed under the Labor Law. Plaintiff opposed the motion and, in turn, cross-moved for summary judgment maintaining that because defendants directed and controlled his work, the one or two-family dwelling exception did not apply. Supreme Court denied both motions finding questions of fact as to all causes of action.

The Appellate Division reversed, holding that defendants made a prima facie showing of their entitlement to summary judgment under the homeowner's exemption of Labor Law § 240 (1) and § 241 (45 AD3d 615, 616). It further found that plaintiff failed to raise a triable issue of fact in opposition, concluding that plaintiff "demonstrated only that the defendants made aesthetic decisions and exercised general supervision with respect to the project, neither of which deprives them of the benefit of the statutory exemption" (id.).

As it pertained to the § 200 claim and common law negligence, the Appellate Division found that plaintiff failed to raise a triable issue of fact as to whether defendants exercised supervisory control over the work (id.). Therefore, it found that Supreme Court should have also dismissed those causes of action (id.).

We granted plaintiff leave to appeal and now affirm. Labor Law § 240 provides in pertinent part as follows: All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor . . . devices which shall be so constructed, placed and operated as to five proper protection to a person so employed (emphasis added).

A similar homeowner's exemption is found in Labor Law § 241.

The exemption was enacted so that "the law would be fairer and more nearly reflect the practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes" (Cannon v Putnam, 76 NY2d 644, 649 [1990] [citations omitted]). We have previously stated that whether a defendant's conduct amounts to direction and control depends upon the degree of supervision exercised over "the method and manner in which the work is performed" (Duda v Rouse Constr. Corp, 32 NY2d 405, 409 [1973]).

Here, defendants' participation was limited to discussion of the results the homeowner wished to see, not the method or manner in which the work was then to be performed. Defendants' direction to plaintiff to place a vent through the roof was simply an aesthetic decision. Defendants did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion. Further, defendants did not provide the plaintiff with any equipment or work materials, nor were they even present at the time plaintiff undertook the venting work. Rather, both the method and the manner of plaintiff's work were left to his judgment and experience.

Plaintiff's affidavit indicating that he expressed reluctance to go on the roof because of concern for his safety is insufficient to raise an issue of fact. Although plaintiff claims that he did not want to go up on the roof to run the vent because he was working alone, he proceeded to do so--not at the specific direction of defendants but of his own volition to complete the work.

For the same reasons, defendants were entitled to summary judgment dismissing the causes of action pursuant to Labor Law § 200 and for common law negligence because defendants exercised no supervisory control over the activity bringing about the injury (see Lombardi v Stout, 80 NY2d 290, 295 [1992]).

Consequently, the order of the Appellate Division should be ...


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