| Thompson v Geniesse |
| 2009 NY Slip Op 03952 [62 AD3d 541] |
| May 19, 2009 |
| Appellate Division, First Department |
| Edward Thompson, Appellant, v Thomas Geniesse et al.,Respondents. |
—[*1] Paul F. McAloon, New York, for respondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 4, 2008,which, to the extent appealed from as limited by the briefs, granted defendants' motion forsummary judgment dismissing the complaint and denied plaintiff's cross motion for summaryjudgment, unanimously affirmed, with costs.
Plaintiff alleged that he was injured on December 15, 2005, when he fell from an icyscaffold while doing renovation work at a recently purchased weekend home of defendants. Atissue here is the Labor Law §§ 240 and 241 homeowner exemption to the strictliability rule it imposes on owners, contractors and their agents to protect workers from buildingconstruction, demolition and repair-related dangers. The exemption covers "owners of one andtwo-family dwellings who contract for but do not direct or control the [contractor's] work."(Id.) An owner who uses such a property solely for commercial purposes is not,however, entitled to the statutory exemption (Van Amerogen v Donnini, 78 NY2d 880,882-883 [1991]).
Defendants demonstrated their prima facie entitlement to judgment as a matter of law withevidence establishing that they fell within the exemption. Their evidence established that thecertificate of occupancy for the house stated that it was a two-family dwelling, and that theyintended to use it as a one-family dwelling, as did the prior owners. It also established that theydid not direct or control the work. The fact that defendants hired an architect to draw plans forportions of the work and to periodically check to see if the quality of the work was reflective ofher plans does not constitute personal direction and control by defendants (see Boyd vLepera & Ward, 275 AD2d 562, 563-564 [2000]). Moreover, plaintiff confirmed that henever spoke with defendants until deposition. Plaintiff admittedly received his daily orders fromhis foreman and the general manager of the contractor, provided his own tools or received themfrom his employer, fell from a scaffold built by a coworker and was ordered by his foreman tomount the scaffold on the occasion of his injury.
The burden thus shifted to plaintiff to demonstrate the existence of a triable issue of materialfact. Plaintiff failed to discharge his burden, offering no cogent evidence in opposition.Regarding the occupancy of the house, the fact that the prior owners were permitted to stay inthe house for several months after closing was clearly an accommodation and served nocommercial purpose. The number of kitchens in the house was also irrelevant, given the [*2]evidence of the prior owners' occupancy and defendants' intendedoccupancy (see Stejskal v Simons,3 NY3d 628, 629 [2004]). While plaintiff argues that defendants insured the subjectdwelling under a "renter's policy," that policy provided the coverage for defendants' primaryresidence, an apartment, and the subject dwelling was added under optional coverage. Plaintiff'scontentions regarding direction and control of the work were equally unavailing. Althoughdefendants consulted with the architect before the job began and kept abreast of the workthrough e-mails and photographs, they made only a few visits to the site, and their conferenceswith the general contractor were largely to gauge progress and discuss aesthetic details. Suchactivities do not constitute the type of active involvement that would remove defendants from thestatutory exemption (see Duda v Rouse Constr. Corp., 32 NY2d 405, 409 [1973]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Renwick, JJ.