Jenkins v. Jones

• Decision Date: 19 November 1998
• Citation: 680 N.Y.S.2d 307,255 A.D.2d 805
• Parties: 1998 N.Y. Slip Op. 10,220 Joseph JENKINS et al., Respondents, v. William S. JONES et al., Defendants and Third-Party Plaintiffs-Appellants; Deercraft Construction Company et al., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 307

680 N.Y.S.2d 307

1998 N.Y. Slip Op. 10,220

Joseph JENKINS et al., Respondents, v. William S. JONES et al., Defendants and Third-Party Plaintiffs-Appellants Deercraft Construction Company et al., Third-Party Defendants-Appellants.

Supreme Court, Appellate Division Third Department.

Nov. 19, 1998.

Moran & Pronti (Richard P. Veloce, of counsel), Saratoga Springs, for defendants and third-party plaintiffs-appellants.

Horigan, Horigan & Lombardo (Derek L. Hayden, of counsel), Amsterdam, for Deercraft Construction Company and another, third-party defendants-appellants.

Thuillez, Ford, Gold & Johnson (Debra J. Schmidt, of counsel), Albany, for respondents.

Before MIKOLL, J.P., and CREW, WHITE and YESAWICH, JJ.

CREW, Justice.

Appeal from an order of the Supreme Court (Graffeo, J.), entered February 25, 1998 in Albany County, which denied defendants' motion for summary judgment dismissing the complaint.

On October 14, 1993, plaintiff Joseph Jenkins (hereinafter Jenkins) was employed as a carpenter by third-party defendant Deercraft Construction Company, a subcontractor hired to frame a home that was being constructed for defendants. On the morning in question, Jenkins' particular task was to cut and deliver the plywood for the subfloor that was being installed on the first level of the house. To deliver the cut plywood, Jenkins would place the wood on the floor deck, hop up on the lip of the poured foundation and then step onto the deck itself, whereupon he would carry the wood to the workers who were completing the installation. On one of his return trips, Jenkins allegedly slipped and fell as he was attempting to step onto the concrete lip and, as a result thereof, purportedly sustained certain injuries.

Plaintiff and his spouse, derivatively, thereafter commenced this action against defendants alleging violations of Labor Law §§ 200, 240 and 241, and defendants apparently commenced a third-party action against Deercraft and its owner, third-party defendant James George. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint contending, inter alia, that they were entitled to the "homeowners' exemption" set forth in Labor Law § 240(1) and § 241. Supreme Court denied the motion, finding that there was a question of fact as to whether defendants, either individually or through an employee/agent, directed or controlled the injury-producing work. This appeal ensued.

Although "[b]oth Labor Law § 240(1) and § 241 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" (Lieberth v. Walden, 223 A.D.2d 978, 979, 636 N.Y.S.2d 885), those statutes also expressly and specifically exempt the "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law § 240[1]; § 241) from the duties imposed thereunder. In this regard, the phrase "direct or control" is to be strictly construed (see, Lieberth v. Walden, supra, at 979, 636 N.Y.S.2d 885) 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 employee (see, Van Alstine v. Padula, 228 A.D.2d 909, 910, 644 N.Y.S.2d 386; appeal dismissed 89 N.Y.2d 858, 653 N.Y.S.2d 276, 675 N.E.2d 1229; Jonchuk v. Weafer, 199 A.D.2d 591, 592, 604 N.Y.S.2d 353; Sarvis v. Maida, 173 A.D.2d 1019, 1020, 569 N.Y.S.2d 997).

Here, plaintiffs argue and Supreme Court found that there was a question of fact as to whether defendants, either individually or through an employee/agent, exercised sufficient direction and control over the injury-producing work to preclude application of the statutory exemption. We cannot agree. Although it is undisputed that defendants frequently were present on the job site to check the progress of the work, Jenkins conceded at his examination before trial that defendants never provided him with any work-related instructions and that all directives, tools and equipment came from his boss, George. Further, while it appears that two changes to the framing work were made in response to concerns expressed by defendant Andrienne Jones, a homeowner does not deprive himself or herself of the statutory exemption merely by presenting ideas and suggestions, observing or inspecting the work being performed and/or...