JOSEPH M. BOMBARD, Appellant,
JOHN PRUIKSMA, Respondent, et al., Defendants. (And a Third-Party Action.)
September 10, 2013
LaFave, Wein & Frament, PLLC, Guilderland (Paul H. Wein of counsel), for appellant.
Bailey, Kelleher & Johnson, PC, Albany (Vincent J. DeLeonardis of counsel), for respondent.
Before: Lahtinen, J.P., Stein, Spain and Egan Jr., JJ.
MEMORANDUM AND ORDER
EGAN JR., J.
Appeal from an order of the Supreme Court (Hall Jr., J.), entered August 9, 2012 in Washington County, which, among other things, granted defendant John Pruiksma's motion for summary judgment dismissing the complaint against him.
Defendant John Pruiksma (hereinafter defendant) and his wife are the owners of an 18-acre parcel of land in the Town of Greenwich, Washington County. In 2006, defendant retained an architect, secured a building permit and thereafter hired various contractors for the purpose of building a single-family residence at the site. Insofar as is relevant to this appeal, defendant Top Notch Home Improvement Corporation was the framing contractor for the project, and plaintiff performed various excavation work at the site.
On the afternoon of September 8, 2006, defendant was assisting plaintiff and his brother in setting a septic tank when one of Top Notch's framers requested their assistance in raising one of the walls of the structure. Plaintiff, his brother and defendant agreed to do so and joined Top Notch's crew on the house's deck. Together, they started to raise or "walk... up" the wall  but were unable to complete the lift, and the wall fell back to the deck — trapping plaintiff and defendant beneath it.
Plaintiff thereafter commenced this action against, among others, defendant and Top Notch alleging violations of Labor Law §§ 200, 240 and 241, as well as common-law negligence. Following joinder of issue, defendant commenced a third-party action and moved for summary judgment dismissing plaintiff's complaint against him. Supreme Court granted defendant's motion, prompting this appeal.
We affirm. Although Labor Law §§ 240 (1) and 241 each "impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities ...[, ] the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work" (Bagley v Moffett, 107 A.D.3d 1358, 1360  [internal quotation marks and citations omitted]; see Chapman v Town of Copake, 67 A.D.3d 1174, 1175 ; Snyder v Gnall, 57 A.D.3d 1289, 1290 ). In this context, "the phrase 'direct or control' is to be strictly construed and, in ascertaining whether a particular homeowner's actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured [party]" (Jenkins v Jones, 255 A.D.2d 805, 805-806  [internal citation omitted]; see Van Hoesen v Dolen, 94 A.D.3d 1264, 1266 , lv denied 19 N.Y.3d 809 ; Rosenblatt v Wagman, 56 A.D.3d 1103, 1104 ; Van Alstine v Padula, 228 A.D.2d 909, 910 , appeal dismissed 89 N.Y.2d 858 ; Young v Krawczyk, 223 A.D.2d 966, 967 ).
Here, Top Notch's various representatives collectively testified that Top Notch provided its own framing and safety equipment and that defendant did not direct the course of the framing work, nor did he advise Top Notch regarding any safety issues. As for the specific incident that gave rise to plaintiff's injury, defendant testified that he did not ask either plaintiff or his brother to assist the framers, i.e., Top Notch, in raising the wall, and such testimony was entirely consistent with plaintiff's recollection of the event. Indeed, plaintiff acknowledged that it was one of "[t]he framers" who "asked... if we could give them a hand to deal with the wall" and, more to the point, made the decision as to the manner in which the wall would be lifted. Specifically, plaintiff testified that defendant did not tell him where to stand, how to position his hands or how to lift the wall — again stating, with respect to Top Notch, that raising the wall "was their deal." Such proof, in our view, was sufficient to demonstrate that defendant did not direct or control the injury-producing work.
In an effort to raise a question of fact on this point, plaintiff attempted to portray defendant as the general contractor for the project. The case law makes clear, however, that neither providing site plans (see Nai Ren Jiang v Shane Yeh, 95 A.D.3d 970, 971 ; Lane v Karian, 210 A.D.2d 549, 550 ), obtaining a building permit (see Chapman v Copake, 67 A.D.3d at 1175-1176), hiring contractors, purchasing materials (see Van Hoesen v Dolen, 94 A.D.3d at 1266; Lane v Karian, 210 A.D.2d at 550), offering suggestions/input (see Stephens v Tucker, 184 A.D.2d 828, 829 ), inspecting the site (see Jenkins v Jones, 255 A.D.2d at 806; Van Alstine v Padula, 228 A.D.2d at 910), retaining general supervisory authority (see Nai Ren Jiang v Shane Yeh, 95 A.D.3d at 971; Stephens v Tucker, 184 A.D.2d at 829), performing certain work (see Snyder v Gnall, 57 A.D.3d at 1291; Clark v Mann, 280 A.D.2d 866, 867 ) nor physical presence at the site (see Jenkins v Jones, 255 A.D.2d at 806) operates to deprive a homeowner of the statutory exemption — so long as the homeowner did not exercise direction or control over the injury-producing work (see Van Hoesen v Dolen, 94 A.D.3d at 1266; Snyder v Gnall, 57 A.D.3d at 1290-1291; Rosenblatt v Wagman, 56 A.D.3d at 1104; Soskin v Scharff, 309 A.D.2d 1102, 1104 ; Jenkins v Jones, 255 A.D.2d at 806; compare Fiorentine v Militello, 275 A.D.2d 990, 991 ; Chura v Baruzzi, 192 A.D.2d 918, 918-919 ). Given the uncontroverted proof that defendant did not exercise direction or control over the work that plaintiff was performing at the time of the accident, Supreme Court properly granted defendant's motion for summary judgment as to the Labor Law §§ 240 and 241 causes of action.
We reach a similar conclusion with respect to plaintiff's Labor Law § 200 and common-law negligence claims. In order to prevail on such claims, plaintiff was required to establish that defendant both "exercised supervisory control over plaintiff's work and had actual or constructive knowledge of the unsafe manner in which the work was being performed" (Fassett v Wegmans Food Mkts., Inc., 66 A.D.3d 1274, 1276  [internal quotation marks and citations omitted]; see Rought v Price Chopper Operating Co., Inc., 73 A.D.3d 1414, 1416 ). As there is no evidence to suggest that defendant exercised supervisory control over plaintiff's work, plaintiff's negligence ...