| Snyder v Gnall |
| 2008 NY Slip Op 10096 [57 AD3d 1289] |
| December 24, 2008 |
| Appellate Division, Third Department |
| Larry Snyder et al., Appellants, v Brendan G. Gnall et al.,Respondents. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Leah W. Casey of counsel),for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Dawson, J.), entered March 19, 2008in Essex County, which, among other things, granted defendants' motion for summary judgmentdismissing the complaint.
Plaintiff Larry Snyder (hereinafter plaintiff) was hired by defendants to construct a garage at theirhome located in the Village of Lake Placid, Essex County. During the course of this work, plaintiff wasinjured when he fell from a scaffold and subsequently commenced this action seeking damages underLabor Law §§ 200, 240 (1) and § 241 (6). Defendants moved and plaintiffscross-moved for summary judgment. Supreme Court denied plaintiffs' cross motion, granteddefendants' motion, and dismissed the complaint. Plaintiffs now appeal.
We affirm. Labor Law § 240 (1) and § 241 (6) do not apply to "owners of one andtwo-family dwellings who contract for but do not direct or control the work" of the person that they hire(Bartoo v Buell, 87 NY2d 362, 367 [1996] [internal quotation marks and citations omitted];see Chowdhury v Rodriguez, 57 AD3d 121, 126-127 [2008]; Ryba v Almeida, 44 AD3d 740,740-741 [2007]). Plaintiffs argue that defendant Brendan G. Gnall (hereinafter defendant) activelysupervised the construction of the garage and exercised such a degree of control over plaintiff's workthat the homeowner's exemption should not apply and that Supreme Court erred in relying upon it whenit granted defendants' motion for summary judgment. In that regard, plaintiffs point to the fact thatdefendant not only identified himself on [*2]the building permitapplication as the general contractor, but also personally arranged for the building inspector's visit toinspect the construction to insure that there was compliance with the conditions contained in the permit.Plaintiffs produced evidence that defendant hired all subcontractors and laborers used on the project,as well as ordered and paid for materials that were used in the construction of the garage. Plaintiffs alsoclaimed that defendant was intimately involved in all facets of the construction, as evidenced by hisparticipation in the excavation and preparation of the building's foundation.
While defendant was undoubtedly involved in many aspects of this project, the reality is that hisparticipation was never so significant as to support the conclusion that he directed or supervisedplaintiff's work. In that regard, we note that construction was performed pursuant to a detailed,five-page proposal prepared by plaintiff that outlined the dimensions of the structure, its configurationand location on the site. In addition, plaintiff provided defendants, as part of this proposal, an estimateas to how long it would take to complete construction and its final cost. The materials used in theconstruction were ordered by defendant pursuant to descriptions provided by plaintiff, and they werepurchased through an account that plaintiff had established in defendant's name at a local supply store.Also, while it is undisputed that defendant hired the subcontractors and laborers employed on thisproject, he did so only after they had been identified by plaintiff and were retained pursuant to plaintiff'srecommendation. As for defendant's personal participation in the project, it involved, at best, meniallabor, and did not constitute defendant's supervision or control over any phase of the actualconstruction of the garage (see Rosenblatt vWagman, 56 AD3d 1103, 1104 [2008]). As such, defendant's involvement did not serve todeprive defendants of the homeowner's exemption and, therefore, Supreme Court properly dismissedplaintiffs' Labor Law § 240 (1) and § 241 (6) causes of action (see Pascarell v Klubenspies, 56 AD3d742, 742-743 [2008]; Soskin v Scharff, 309 AD2d 1102, 1104 [2003]).
As for plaintiffs' Labor Law § 200 claim, plaintiffs were required to show that defendantsexercised supervisory control over plaintiff's work and "had actual or constructive knowledge of theunsafe manner in which the work was being performed" (Lyon v Kuhn, 279 AD2d 760, 761[2001]; see McGlone v Johnson, 27AD3d 702, 703 [2006]). It is undisputed that plaintiff designed and constructed the scaffold thatwas used in this project and that he fell from it at a time when defendant was not present at the worksite. Even if we credit the argument that defendant helped plaintiff build the scaffold and knew that itwas, as constructed, dangerous, defendants cannot be held liable pursuant to Labor Law § 200because the hazardous conditions which brought about the accident were caused by plaintiff's ownwork methods at a time when defendant exercised "no supervisory control" (Lyon v Kuhn, 279AD3d at 761; see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993];Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; Ortega v Puccia, 57 AD3d 54, 62[2008]). Therefore, Supreme Court properly dismissed plaintiffs' Labor Law § 200 claim aswell.
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed, with costs.