Bombard v. Pruiksma

• Decision Date: 24 October 2013
• Parties: Joseph M. BOMBARD, Appellant, v. John PRUIKSMA, Respondent, et al., Defendants. (And a Third–Party Action.).
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1304
975 N.Y.S.2d 183
2013 N.Y. Slip Op. 06917

Joseph M. BOMBARD, Appellant,
v.
John PRUIKSMA, Respondent, et al., Defendants.
(And a Third–Party Action.).

Supreme Court, Appellate Division, Third Department, New York.

Oct. 24, 2013.

[975 N.Y.S.2d 184]

LaFave, Wein & Frament, PLLC, Guilderland (Paul H. Wein of counsel), for appellant.

Bailey, Kelleher & Johnson, PC, Albany (Vincent J. DeLeonardis of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, SPAIN and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order of the Supreme Court (Hall Jr., J.), entered August 9, 2012 in Washington County, which, among other things, granted defendant John Pruiksma's motion for summary judgment dismissing the complaint against him.

Defendant John Pruiksma (hereinafter defendant) and his wife are the owners of an 18–acre parcel of land in the Town of Greenwich, Washington County. In 2006, defendant retained an architect, secured a building permit and thereafter hired various contractors for the purpose of building a single-family residence at the site. Insofar as is relevant to this appeal, defendant Top Notch Home Improvement Corporation was the framing contractor for the project, and plaintiff performed various excavation work at the site.

On the afternoon of September 8, 2006, defendant was assisting plaintiff and his brother in setting a septic tank when one of Top Notch's framers requested their assistance in raising one of the walls of the structure. Plaintiff, his brother and defendant agreed to do so and joined Top Notch's crew on the house's deck. Together, they started to raise or “walk[ ] ... up” the wall ¹ but were unable to complete the lift, and the wall fell back to the deck—trapping plaintiff and defendant beneath it.

[975 N.Y.S.2d 185]

Plaintiff thereafter commenced this action against, among others, defendant and Top Notch alleging violations of Labor Law §§ 200, 240 and 241, as well as common-law negligence. Following joinder of issue, defendant commenced a third-party action and moved for summary judgment dismissing plaintiff's complaint against him. Supreme Court granted defendant's motion, prompting this appeal.

We affirm. Although Labor Law §§ 240(1) and 241 each “impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities ... [,] the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work” (Bagley v. Moffett, 107 A.D.3d 1358, 1360, 969 N.Y.S.2d 184 [2013] [internal quotation marks and citations omitted]; see Chapman v. Town of Copake, 67 A.D.3d 1174, 1175, 888 N.Y.S.2d 322 [2009]; Snyder v. Gnall, 57 A.D.3d 1289, 1290, 870 N.Y.S.2d 562 [2008] ). In this context, “the phrase ‘direct or control’ is to be strictly construed and, in ascertaining whether a particular homeowner's actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured [party]” (Jenkins v....