| Nai Ren Jiang v Shane Yeh |
| 2012 NY Slip Op 03612 [95 AD3d 970] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Nai Ren Jiang et al., Appellants, v Shane Yeh et al.,Respondents. |
—[*1] Ryan, Perrone & Hartlein, P.C., Mineola, N.Y. (Robin Mary Heaney and William T. Ryan ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Agate, J.), dated June 30, 2011, which granted thedefendants' motion for summary judgment dismissing so much of the complaint as alleged aviolation of Labor Law § 241 (6).
Ordered that the order is affirmed, with costs.
The defendants owned a single-family home in Port Washington. In late 2009 and early2010, the home was undergoing significant renovations. The defendant Shane Yeh (hereinafterYeh) had an architect draft plans, and he hired a number of contractors to work on the project. Inlate 2009, Yeh hired the plaintiff Nai Ren Jiang (hereinafter Jiang) to perform various duties inconnection with the project. On February 7, 2010, Jiang was working at the defendants' homewhen he was involved in an accident. While Jiang was cutting a piece of wood with a table saw,the wood "kicked back" and struck him in the eye. Jiang allegedly sustained personal injuries,including blindness in his right eye. Jiang and his wife, suing derivatively, commenced thisaction, asserting claims based on common-law negligence and Labor Law §§ 200and 241 (6). The defendants moved for summary judgment dismissing so much of the complaintas alleged a violation of Labor Law § 241 (6), claiming that the one- and two-familyhomeowner exemption applied. In the order appealed from, the Supreme Court granted thedefendants' motion. The plaintiffs appeal. We affirm.
The "homeowner's exemption" to liability under Labor Law § 241 (6) "is available to'owners of one and two-family dwellings who contract for but do not direct or control the work' "(Holifield v Seraphim, LLC, 92AD3d 841, 842 [2012], quoting Labor Law § 240 [1]; § 241 [6]; see Chowdhury v Rodriguez, 57 AD3d121, 126 [2008]). " 'The exception was enacted to protect those who, lacking businesssophistication, would not know or anticipate the need to obtain insurance to cover them againstabsolute liability' " (Rodriguez vGany, 82 AD3d 863, 864 [2011], quoting Acosta v Hadjigavriel, 18 AD3d 406, 406 [2005]). "[I]n order for adefendant to receive the protection of the homeowners' exemption, the defendant must satisfytwo prongs required by the statutes. First, the [*2]defendant mustshow that the work was conducted at a dwelling that is a residence for only one or two families"(Chowdhury v Rodriguez, 57 AD3d at 126; see Labor Law § 241;Rodriguez v Gany, 82 AD3d at 864). "The second requirement . . . is thatthe defendants 'not direct or control the work' " (Chowdhury v Rodriguez, 57 AD3d at126, quoting Labor Law § 240 [1]; § 241 [6]; see Rodriguez v Gany, 82AD3d at 864). "The expressed and unambiguous language of both [Labor Law § 240 (1)and § 241 (6)] focuses upon whether the defendants supervised the methods and manner ofthe work" (Chowdhury v Rodriguez, 57 AD3d at 127; see Ortega v Puccia, 57 AD3d 54[2008]; Boccio v Bozik, 41 AD3d754, 755 [2007]; Arama vFruchter, 39 AD3d 678, 679 [2007]; Ferrero v Best Modular Homes, Inc., 33 AD3d 847, 849 [2006]; Siconolfi v Crisci, 11 AD3d 600,601 [2004]; Miller v Shah, 3 AD3d521, 522 [2004]).
Here, the defendants established, prima facie, the applicability of the one- and two-familyhomeowner exemption. The defendants submitted evidence establishing, and the plaintiffs do notdispute, that the defendants' home where the accident occurred is a single-family privateresidence. The defendants also established, prima facie, that they did not direct or control thework (see Holifield v Seraphim,LLC, 92 AD3d 841 [2012]; Paez v Shah, 78 AD3d 673, 674 [2010]; Castellanos v United Cerebral Palsy Assn.of Greater Suffolk, Inc., 77 AD3d 879, 880 [2010]; Orellana v Dutcher Ave. Bldrs., Inc., 58 AD3d 612, 613-614[2009]). Yeh's "involvement was merely a retention of the limited power of general supervision,and was no more extensive than would be expected of the typical homeowner who hired acontractor to renovate his or her home" (Orellana v Dutcher Ave. Bldrs., Inc., 58 AD3d at614 [internal quotation marks and citations omitted]; see Jumawan v Schnitt, 35 AD3d 382, 383 [2006]; Decavallas vPappantoniou, 300 AD2d 617, 618 [2002]). The evidence submitted by the defendants,including Jiang's deposition testimony, established, prima facie, that Jiang was working on hisown, and that Yeh did not instruct Jiang as to how to perform the work (see Ortega vPuccia, 57 AD3d at 59; Ferrero v Best Modular Homes, Inc., 33 AD3d at 849). Yeh's"activities in . . . providing the site plans prepared by [his architect], hiring various []contractors and scheduling when they would work, reviewing plans and the progress of thework, and making general decisions 'are no more extensive than would be expected of theordinary homeowner' " (Ferrero v Best Modular Homes, Inc., 33 AD3d at 850, quotingLane v Karian, 210 AD2d 549, 550 [1994]; see Garcia v Petrakis, 306 AD2d 315,316 [2003]). Moreover, Yeh "did not become a general contractor, responsible for supervisingthe entire construction project and enforcing safety standards, by virtue of the fact that [he] hiredseparate contractors to perform different aspects of the project" (Ferrero v Best ModularHomes, Inc., 33 AD3d at 850). The fact that Yeh owned the table saw used in his home doesnot establish that he directed or controlled the work and does not serve as a predicate for liabilityoutside of the homeowner's exemption (cf. Chowdhury v Rodriguez, 57 AD3d at 127;Stone v Altarac, 305 AD2d 849, 850 [2003]; Miller v Trudeau, 270 AD2d 683,683 [2000]).
In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triableissue of fact. The plaintiffs' expert affidavit was not relevant to the applicability of the one- andtwo-family homeowner exemption. As the Supreme Court correctly determined, the affidavitsworn to by Jiang, which contained statements claiming that Yeh would instruct Jiang on how toperform his work, contradicted Jiang's earlier deposition testimony. Thus, the statementscontained in Jiang's affidavit appear to have been an attempt to create a feigned issue of factspecifically designed to avoid the consequences of his earlier deposition testimony (see Kokin v Key Food Supermarket,Inc., 90 AD3d 850, 851 [2011]; Freiser v Stop & Shop Supermarket Co., LLC, 84 AD3d 1307,1308-1309 [2011]; Capasso vCapasso, 84 AD3d 997, 998 [2011]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing so much of the complaint as alleged a violation of Labor Law § 241(6).
In light of our determination, we need not reach the defendants' remaining contention.Angiolillo, J.P., Dickerson, Leventhal and Miller, JJ., concur.