| McNabb v Oot Bros., Inc. |
| 2009 NY Slip Op 05822 [64 AD3d 1237] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| Mark McNabb, Respondent-Appellant, v Oot Bros., Inc., et al.,Respondents, and Bryan Place et al, Appellants-Respondents. |
—[*1] Stanley Law Offices, LLP, Syracuse (Robert A. Quattrocci of counsel), forplaintiff-respondent-appellant. Sugarman Law Firm, LLP, Syracuse (Stephen A. Davoli of counsel), fordefendant-respondent Oot Bros., Inc. Longstreet & Berry, LLP, Syracuse (Michael Longstreet of counsel), fordefendant-respondent Build Your Own Home, LLC.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Donald A.Greenwood, J.), entered May 2, 2008 in a personal injury action. The order granted the motion ofdefendant Oot Bros., Inc. for summary judgment, granted in part the motion of defendants BryanPlace and Jacqueline Place for summary judgment, and granted the cross motion of defendantBuild Your Own Home, LLC for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion of defendants Bryan Place and Jacqueline Place in its entirety anddismissing the amended complaint against those defendants and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff was injured while performing work for his employer, FleetwoodDrywall, Inc., at a house being built by defendants Bryan Place and Jacqueline Place. Plaintiffwas working on stilts when he tripped over an electrical cord, causing him to fall and sustaininjuries. The Places contracted with defendants Oot Bros., Inc. (Oot) and Build Your OwnHome, LLC (BYOH) for consulting services in connection with the design and construction ofthe house. Plaintiff commenced this action alleging violations of Labor Law §§ 200,241 (1) and § 241 (6), as well as common-law negligence.
Oot moved for summary judgment dismissing the amended complaint against it on theground that it acted as a consultant, not a general contractor or agent, and thus that the LaborLaw [*2]cause of action should be dismissed against it. Inaddition, Oot contended that it did not direct or control plaintiff's work and thus that both thecommon-law negligence cause of action and the Labor Law § 200 claim should bedismissed against it. The Places also moved for summary judgment dismissing the amendedcomplaint against them, and BYOH cross-moved for that same relief.
Supreme Court concluded that none of the defendants was liable under Labor Law §240 (1) because plaintiff's accident was not caused by an elevation-related hazard. The courtfurther concluded that neither Oot nor BYOH acted as a general contractor or agent of the Placesand therefore were not liable under Labor Law § 240 (1) or § 241 (6). The court alsoconcluded that Oot and BYOH were not liable for common-law negligence or Labor Law§ 200 because, inter alia, they did not exercise supervisory control over the safety of thework site. With respect to the Labor Law § 241 (6) claim against the Places, the courtdetermined that plaintiff raised an issue of fact whether the Places directed or controlled thework and thus that they were not entitled to dismissal of that claim under the homeowner'sexemption in the statute. The court, however, dismissed the Labor Law § 241 (6) claimagainst the Places insofar as it was based on 12 NYCRR 23-1.5 (a) because that regulation is notsufficiently specific to support that claim. Finally, with respect to the common-law negligencecause of action and Labor Law § 200 claim against the Places, the court concluded that thePlaces did not actually move for summary judgment with respect to that cause of action andclaim. The Places appeal from the order, and plaintiff cross-appeals from the order with theexception, as limited by his brief, of that part dismissing the Labor Law § 241 (6) claimagainst all defendants based on 12 NYCRR 23-1.5 (a).
Contrary to the contention of plaintiff on his cross appeal, the court properly dismissed theLabor Law § 240 (1) claim against all defendants because the accident does not fall withinthe purview of that statute (see Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998];Russell v Widewaters S. Bay Rd. Assoc., 289 AD2d 1025 [2001]). We further concludethat neither Oot nor BYOH served as general contractors or agents of the owners and thus thatthe court properly determined that they are not liable under Labor Law § 240 (1) or§ 241 (6) (see generally Russin v Louis N. Picciano & Son, 54 NY2d 311,317-318 [1981]).
With respect to the Labor Law § 241 (6) claim against the Places, we conclude that thecourt erred in determining that they are not entitled to the homeowner's exemption set forththerein. The fact that they were in effect acting as their own general contractor "will not barapplication of the single-family homeowner exemption so long as [they] did not control or directthe method or manner of the work being performed by plaintiff at the time of the injury"(Soskin v Scharff, 309 AD2d 1102, 1104 [2003]). Here, the Places established that theydid not control or direct the manner in which plaintiff or his employer performed the insulationwork in the house, they did not provide the electrical cord in plaintiff's work area, and they didnot suggest that any particular tools, materials or safety devices be used (see Jumawan v Schnitt, 35 AD3d382 [2006], lv denied 8 NY3d 809 [2007]). The exemption applies "even though[the Places were] present at the construction site from time to time and hired subcontractors toperform certain work" (Schultz v Iwachiw, 284 AD2d 980, 980 [2001], lv dismissedin part and denied in part 97 NY2d 625 [2001]).
Having addressed the Labor Law § 240 (1) and § 241 (6) claims against alldefendants, we now turn to the remainder of the amended complaint, i.e., the common-lawnegligence cause of action and the Labor Law § 200 claim. We conclude with respect toOot and BYOH that the court properly granted summary judgment dismissing that cause ofaction and claim against them. As the court properly concluded, those defendants establishedthat they did not have the authority to control plaintiff's work and thus neither can be liable underthe statute for failure to provide a safe place to work (see Russin, 54 NY2d at 317). Thepresence of either an Oot or BYOH employee at the site is insufficient to impose liability onthose defendants for common-[*3]law negligence or under LaborLaw § 200 (see Burkoski vStructure Tone, Inc., 40 AD3d 378, 381 [2007]).
As previously noted, the court determined that the Places did not seek summary judgmentdismissing the common-law negligence cause of action and Labor Law § 200 claimagainst them, and the court therefore did not address that cause of action and claim against them.We conclude, however, that the Places did in fact implicitly seek that relief by contending insupport of their motion that they did not direct or control the work and thus could not be heldliable for plaintiff's injuries. We further conclude that the Places are entitled to summaryjudgment with respect to common-law negligence and Labor Law § 200 because theyestablished that they did not exercise supervisory control over the work of plaintiff and hisemployer and that they neither created nor had actual or constructive notice of the dangerouscondition (see Hennard v Boyce, 6AD3d 1132, 1133 [2004]). Although the agreement between Oot and the Places gave thePlaces the authority to direct or control plaintiff's work and the safety at the site, the recordestablishes that they did not actually do so (see Schultz, 284 AD2d at 980).
We therefore modify the order by granting the motion of the Places in its entirety anddismissing the Labor Law § 241 (6) claim in its entirety, the common-law negligencecause of action and the Labor Law § 200 claim, thereby dismissing the amended complaintagainst them. Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Centra, JJ.