Lieberth v. Walden

• Decision Date: 25 January 1996
• Citation: 223 A.D.2d 978,636 N.Y.S.2d 885
• Parties: Kevin G. LIEBERTH, Appellant, v. Alfred S. WALDEN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 885

636 N.Y.S.2d 885

223 A.D.2d 978

Kevin G. LIEBERTH, Appellant, v. Alfred S. WALDEN et al., Respondents.

Supreme Court, Appellate Division Third Department.

Jan. 25, 1996.

Smith, Dwyer and Bliss P.C. (Matthew H. Dwyer, of counsel), Lake Placid, for appellant.

Saxer, Anderson, Wolinsky & Sunshine (Arthur P. Anderson, of counsel), Plattsburgh, for respondents.

Before MERCURE, J.P., and WHITE, CASEY, PETERS and SPAIN, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Viscardi, J.), entered December 8, 1994 in Essex County, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.

Plaintiff commenced this action, pursuant to Labor Law §§ 200, 240(1) and § 241(6), against defendants, the owners of a single-family dwelling in the Village of Lake Placid, Essex County, to recover damages for injuries he sustained on October 19, 1990 when a scaffold upon which he was standing broke, causing him to fall. Following discovery, defendants moved for summary judgment dismissing the complaint on the ground that they were entitled to the homeowner's exemption contained in Labor Law §§ 240 and 241. Plaintiff cross-moved for, inter alia, summary judgment, claiming that defendants were not entitled to the exemption. In a well-reasoned decision, Supreme Court concluded that defendants were entitled to the exemption and further found that plaintiff's Labor Law § 200 cause of action was deficient. Accordingly, it granted defendants' motion and denied the cross motion. Plaintiff appeals.

Both 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 (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82). Recognizing that it was unrealistic to expect owners of residential dwellings to realize, understand and insure against the responsibilities imposed by these statutes, the Legislature amended them to specifically exempt "owners of one and two-family dwellings who contract for but do not direct or control the work" from the duties imposed by Labor Law § 240(1) and § 241 (see, Cannon v. Putnam, 76 N.Y.2d 644, 649, 563 N.Y.S.2d 16, 564 N.E.2d 626). In accordance with the legislative intent, the phrase "direct or control" is strictly construed (see, Kolakowski v. Feeney, 204 A.D.2d 693, 612 N.Y.S.2d 243) and, in analyzing whether an owner's action amounted to direction or control, "the relevant inquiry is the degree to which the owner supervised the method and manner of the work" (Jonchuk v. Weafer, 199 A.D.2d 591, 592, 604 N.Y.S.2d 353).

An overview of the case law discloses that it requires a significant degree of participation in the work by the owner before he or she will be deemed to have crossed the line from being a legitimately concerned homeowner to a de facto supervisor. In Valentia v. Giusto 182 A.D.2d 987, 581 N.Y.S.2d 939, where the homeowner was at the worksite practically every day, inspected every window that was installed, climbed ladders when necessary and voiced many complaints about how the work was performed, we held that he did not exercise control of the work. Likewise, in Lane v. Karian, 210 A.D.2d 549, 619 N.Y.S.2d 796 we found the owner entitled to the exemption despite proof showing that he acted as his own general contractor, provided the plans, purchased the materials, hired the contractors and visited the worksite. On the other hand, we found that a question of fact was presented on the issue of direction or control where the proof showed that the owner was at the jobsite daily doing work on his own and overseeing the project in its entirety, organizing the subcontractors, routinely instructing workers at the jobsite to assist him in moving supplies and materials, and on several occasions directing the plaintiff to alter his methods of work (see, Chura v. Baruzzi, 192 A.D.2d 918, 596 N.Y.S.2d 592; see also, Relyea v. Bushneck, 208 A.D.2d 1077, 617 N.Y.S.2d 558 [finding that the exemption did not apply where the owner performed some of the construction work]. In Emmi v. Emmi, 186 A.D.2d 1025, 588 N.Y.S.2d 481, the exemption was denied to an owner who performed much of the construction himself, acquired and constructed the scaffolding from which the plaintiff fell, and acknowledged his responsibility to obtain safety rails for the scaffolding.

Here, the record shows that in June 1990, defendants obtained a building permit for a 2,000-square-foot addition to their residence that was based on plans drawn by defendant Elaine W. Walden (hereinafter Walden) with the assistance of a professional engineer. After securing the permit, Walden proceeded to hire the contractors for the project,...