| Chapman v Town of Copake |
| 2009 NY Slip Op 08122 [67 AD3d 1174] |
| November 12, 2009 |
| Appellate Division, Third Department |
| Charles F. Chapman Jr., Respondent, v Town of Copake et al.,Defendants, and Tessa Edick et al., Appellants. |
—[*1] Hanlon, Veloce & Wilkinson, Albany (Thomas J. Wilkinson of counsel), for Thom Filicia,Inc., appellant. L.A. Beesecker, Cornwall, for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Czajka, J.), entered June 12, 2008in Columbia County, which denied the motions of defendants Tessa Edick, Thom Filicia, Inc.and Thomas L. Filicia for summary judgment dismissing the complaint against them.
Plaintiff was employed by Henry Meyers Construction, which was hired by defendantsTessa Edick and Thomas L. Filicia to perform renovation work at a lake house they owned in theTown of Copake, Columbia County. While plaintiff was digging holes to install concrete footersnear a retaining wall, the retaining wall collapsed onto him, causing personal injuries. Seeking torecover damages for those injuries, plaintiff commenced this action against defendant ThomFilicia, Inc. (hereinafter TFI), defendant Town of Copake, Edick and Filicia, allegingcommon-[*2]law negligence and Labor Lawviolations.[FN1]TFI moved and Edick and Filicia cross-moved for summary judgment dismissing the complaintagainst them. Finding that issues of fact existed as to who was directing or controlling therenovation work, Supreme Court denied the motions.[FN2]Edick, Filicia and TFI appeal.
Initially, inasmuch as the record demonstrates that TFI was neither an owner of the dwellingor an owner's agent, nor a contractor responsible for the work, Supreme Court should havegranted TFI's motion for summary judgment dismissing plaintiff's Labor Law § 240 (1)and § 214 (6) claims against it (see Chimborazo v WCL Assoc., Inc., 37 AD3d 394, 396 [2007];Silva v New York Tel. Co., 267 AD2d 634, 636-637 [1999]). Further, because TFI hadno obligation with regard to the safety of the work site, TFI was also entitled to summaryjudgment dismissing plaintiff's common-law negligence and Labor Law § 200 claimsagainst it (see McNabb v Oot Bros.,Inc., 64 AD3d 1237, 1239-1240 [2009]).
With respect to Edick and Filicia, it is well established that "[a]n owner of a one- ortwo-family dwelling is exempt from liability under Labor Law §§ 240 and 241unless he or she directed or controlled the work being performed" (Pascarell v Klubenspies, 56 AD3d742, 742 [2008]). As there is no dispute that Edick and Filicia are owners of the house, therelevant inquiry is whether they directed or controlled the work that was performed there. In thatregard, "[t]he phrase 'direct or control' . . . is construed strictly and refers to thesituation where the owner supervises the method and manner of the work" (id. [internalquotation marks and citations omitted]).
The record establishes that, although Edick and Filicia were involved in the basic planningand coordination of the renovation project, their participation was not so significant as to supporta finding that they essentially served as their own general contractor. Specifically, Edick andFilicia introduced evidence that they hired Henry Meyers Construction to perform the work attheir house and that plaintiff received direction regarding the method and manner in which hewas to perform his work directly from either Henry Meyers himself or from Meyers's assistant.Although plaintiff offered proof that Edick was primarily responsible for making sure that thesubcontractors were paid and that she documented when each was present and how many hoursthey worked, it was Meyers who recruited them and coordinated their work. Plaintiff providedadditional evidence that Edick completed the building permit application herself, that Edick andFilicia provided sketches of the work that they wanted done and that Edick and Filicia madepayments for the work directly to the subcontractors rather than through Henry MeyersConstruction. Even viewing this evidence in the light most favorable to plaintiff as thenonmoving party, it cannot be said that the participation of either Edick or Filicia " 'crossed theline from being a legitimately concerned homeowner to a de facto supervisor' " (Rosenblatt v [*3]Wagman, 56 AD3d 1103, 1104 [2008], quotingLieberth v Walden, 223 AD2d 978, 979 [1996]). As such, Supreme Court should havegranted the cross motion of Edick and Filicia for summary judgment dismissing plaintiff's LaborLaw § 240 (1) and § 241 (6) claims. Moreover, because neither Edick nor Filiciasupervised or controlled the manner in which plaintiff's work was performed, and there is noevidence that Edick and Filicia had either actual or constructive knowledge of any allegeddangerous condition regarding the retaining wall, Edick and Filicia were entitled to dismissal ofplaintiff's Labor Law § 200 and common-law negligence claims (see Desharnais v Jefferson Concrete Co.,Inc., 35 AD3d 1059, 1061-1062 [2006]; Lyon v Kuhn, 279 AD2d 760, 760-761[2001]).
Spain, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is reversed, onthe law, with one bill of costs, motions granted, summary judgment awarded to defendants ThomFilicia, Inc., Tessa Edick and Thomas L. Filicia and complaint dismissed against them.
Footnote 1: Plaintiff's action against theTown of Copake was dismissed prior to discovery.
Footnote 2: Subsequent to the submission ofthe motion papers, but prior to the entry of the order appealed from, plaintiff filed an amendedcomplaint naming as defendants Frank's Custom Masonry and Frank Robertson, individually anddoing business as Frank's Custom Masonry. According to plaintiff, these parties have notappeared in the action.