| Van Hoesen v Dolen |
| 2012 NY Slip Op 02737 [94 AD3d 1264] |
| April 12, 2012 |
| Appellate Division, Third Department |
| James D. Van Hoesen, Appellant, v Eric Dolen et al., Respondents,et al., Defendants. (Action No. 1.) Robert Rasi, Appellant v Eric Dolen et al.,Respondents, et al., Defendants. (Action No 2.) |
—[*1] Flink & Smith, L.L.C., Albany (Paul J. Campito of counsel), for Eric Dolen and another,respondents. Goergen, Manson & Huenke, Buffalo (Joseph G. Goergen II of counsel), for SuperiorHousing, L.L.C., respondent.
Garry, J. Appeal from an order of the Supreme Court (Devine, J.), entered April 13, 2011 inSchoharie County, which, among other things, granted cross motions by defendants SuperiorHousing, LLC, Eric Dolen and Karen Dolen for summary judgment dismissing the complaintagainst them.
Defendant Eric Dolen (hereinafter Dolen) is a principal of defendant Superior Homes, LLC,a supplier of modular and mobile homes. He and defendant Karen Dolen own and reside in asingle-family home located in the Town of Carlisle, Schoharie County. In 2008, they decided toconstruct an indoor horseback riding arena on their property. Dolen purchased lumber andmaterials, had the site graded and prepared, arranged for the use of a crane, and entered into anoral agreement with Christopher Clarke, the owner of defendant Interstate Home Improvements,LLC (hereinafter Interstate) by which Interstate would erect the arena's frame and roof. Plaintiffswere employed by Interstate as laborers and were in the process of installing roof trusses whenthe trusses collapsed, causing them to fall approximately 20 feet to the ground.
Plaintiffs commenced these actions alleging common-law negligence and Labor Lawviolations. After discovery, plaintiffs each moved for partial summary judgment as to liability,and plaintiff James D. Van Hoesen moved for a default judgment against Interstate and defendantInterstate Construction. Thereafter, the Dolens and Superior separately cross-moved for summaryjudgment dismissing the complaint. Supreme Court denied plaintiffs' motions, granted the crossmotions for summary judgment dismissing the claims against Superior and the Dolens, anddismissed the complaint against Interstate and Interstate Construction. Plaintiffs appeal.
To hold the Dolens liable on their common-law negligence and Labor Law § 200claims, plaintiffs were required to demonstrate that the Dolens " 'both exercised supervisorycontrol over the operation and had actual or constructive knowledge of the unsafe manner inwhich the work was being performed' " (Rought v Price Chopper Operating Co., Inc., 73 AD3d 1414, 1416[2010], quoting Lyon v Kuhn, 279 AD2d 760, 761 [2001]). They made no such showing.Dolen testified that although he was generally aware that the arena was to be a pole barn withroof trusses, he was not familiar with the construction details. He testified that he provided noinstructions to Clarke other than the arena's intended size and orientation, and that his onlyinvolvement with Interstate's work was to visit the site "[s]poradically" to check on its progress.Dolen stated that, on the day of the accident, he arrived after about half of the trusses had beeninstalled and was speaking with the crane operator when the trusses suddenly collapsed. Thecrane operator confirmed that this conversation consisted of "small talk" unrelated to the projectand that Dolen never gave him any instructions. Likewise, Clarke testified that neither of theDolens provided him with directions as to how the construction was to be carried out; he statedthat he was "the boss" of the erection of the arena, supervised and directed plaintiffs' work, [*2]and used instructions provided by the manufacturer in installing thetrusses. Finally, both plaintiffs testified that they were supervised by Clarke and never discussedtheir work with the Dolens or heard them express any dissatisfaction with its progress. Plaintiffsalso testified that they believed that Clarke was under pressure to complete the truss installationquickly, but Clarke did not confirm this claim, and neither plaintiff could specify whether thealleged time pressure was being exerted by the Dolens or someone else. Thus, their testimonywas insufficient to create issues of fact as to the Dolens' control of the work, and Supreme Courtproperly dismissed the common-law negligence and Labor Law § 200 claims against them(see Rought v Price Chopper Operating Co., Inc., 73 AD3d at 1416; Chapman v Town of Copake, 67 AD3d1174, 1176 [2009]; Snyder vGnall, 57 AD3d 1289, 1291 [2008]; compare McDonald v UICC Holding, LLC, 79 AD3d 1220,1221-1222 [2010], lv denied 17 NY3d 769 [2011]).
For similar reasons, the claims against the Dolens pursuant to Labor Law § 240 (1) and§ 241 (6) were properly dismissed. Owners of one- or two-family dwellings who do notdirect or control the work being performed are exempt from liability under these statutes (seeChapman v Town of Copake, 67 AD3d at 1175). " '[T]he phrase "direct or control". . . is construed strictly and refers to the situation where the owner supervises themethod and manner of the work' " (id., quoting Pascarell v Klubenspies, 56 AD3d 742, 742 [2008]). As previouslydiscussed, there is no evidence that the Dolens exerted supervisory control over the method andmanner of the arena's construction. In the absence of such evidence, Dolen did not lose theprotection of the exemption by hiring contractors, arranging for the use of equipment, orpurchasing materials (see Chapman v Town of Copake, 67 AD3d at 1175-1176;Snyder v Gnall, 57 AD3d at 1290-1291; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 849-850[2006], lv dismissed 8 NY3d 841 [2007]; Lane v Karian, 210 AD2d 549,549-550 [1994]).
We further reject plaintiffs' argument that the homeowners' exemption was inapplicablebecause the arena was not appurtenant to the Dolens' home or intended for storage of personalitems. Application of the exemption does not require that these matters be shown, but is insteadbased "on the site and purpose of the work" (Allen v Fiori, 277 AD2d 674, 674 [2000];see Bartoo v Buell, 87 NY2d 362, 368 [1996]) and on whether the owner intends to usethe structure "only for commercial purposes" (Truppi v Busciglio, 74 AD3d 1624, 1625 [2010]). The arena waslocated on the same property as the Dolens' single-family home, and both Dolens testified,without contradiction, that it was built solely for the personal use of their family members. In theabsence of any related commercial purpose, we find no significance in Dolen's use of Superior'sresources for some aspects of the construction nor his payment for some of the materials with hisbusiness check. Accordingly, the Dolens are exempt from strict liability under the Labor Law forplaintiffs' injuries (see Bartoo v Buell, 87 NY2d at 369; Crowningshield v Kim, 19 AD3d975, 976-977 [2005], lv denied 5 NY3d 711 [2005]; George v Hunt, 289AD2d 935 [2001]; compare Battease vHarrington, 90 AD3d 1124, 1125-1126 [2011]).
Next, we find that the claims against Superior were properly dismissed despite its [*3]involvement in some aspects of the construction. Dolen arranged tohave the site graded by a Superior employee using a bulldozer owned by Superior; this employeethen covered the site with a base layer of limestone dust purchased by Dolen. When the sitepreparation was complete, Clarke testified that "one of [Dolen's] men" dug holes and helpedClarke set poles for the arena's frame; however, Clarke did not know whether this unidentifiedworker was employed by Superior or by Dolen personally, and there was no evidence that theworker exerted supervision or control over any aspect of the arena's construction. Finally, thecrane's owner testified that he provided the crane to the Dolens for use in constructing the arenafree of charge, as a gesture of appreciation for Superior's frequent business use of the crane.However, he testified that he did not visit the Dolens' property while the crane was in use and hadno involvement in constructing the arena. In addition, the crane operator testified that he did notreceive instructions from the Dolens or any Superior representative, but from the crane owner.Thus, there was no evidence that Superior "exercised some supervisory control over theperformance of [plaintiffs'] work," and the Labor Law § 200 and negligence claims againstit were properly dismissed (Norman vWelliver McGuire, Inc., 48 AD3d 945, 946 [2008]; see Biance v Columbia Washington Ventures, LLC, 12 AD3d 926,927 [2004]; Cook v Thompkins, 305 AD2d 847, 847-848 [2003]). Further, Superior wasnot liable under Labor Law §§ 240 and 241 as a general contractor or the Dolens'agent, as there was no evidence that it was "granted the power to enforce safety standards andhire subcontractors . . . [or that it had] authority to supervise and control the activitywhich brought about the injury" (Bowlesv Clean Harbors Envtl. Servs., Inc., 72 AD3d 1307, 1308-1309 [2010] [citationsomitted]; see Walls v Turner Constr.Co., 4 NY3d 861, 864 [2005]; Morris v C & F Bldrs., Inc., 87 AD3d 792, 793 [2011];compare Futo v Brescia Bldg. Co., 302 AD2d 813, 814-815 [2003]).
Finally, we reject plaintiffs' contention that their motion for a default judgment should havebeen granted. Supreme Court denied this motion and dismissed the complaint against Interstateand Interstate Construction on the ground that the record conclusively established that theseclaims were barred by workers' compensation exclusivity (see Workers' CompensationLaw § 11; Clemens v Brown,69 AD3d 1197, 1198-1199 [2010]). Although these defendants neither appeared in theaction nor moved for this relief, we find that the claims were properly dismissed. Where, as here,the party seeking a default judgment fails to move for such relief within a year of the default or toshow sufficient cause for the delay, the court "shall dismiss the complaint as abandoned" andmay do so on its own motion (CPLR 3215 [c]; see Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2011]; DuBois v Roslyn Natl. Mtge. Corp., 52AD3d 564, 565 [2008]; Fallsburgh Lbr. Co. v De Graw, 239 AD2d 846, 846 [1997];compare Estate of Spiegel v Estate ofRickey, 29 AD3d 1180, 1180-1181 [2006]).
Peters, P.J., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,with one bill of costs.