SLETTENE v. GINSBURG

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

Glenn SLETTENE, Appellant, v. Leslie GINSBURG, Defendant Third-Party Plaintiff-Respondent; Jacobsen-Chippa Construction, Third-Party Defendant.

-- January 25, 1999

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, THOMAS R. SULLIVAN and GLORIA GOLDSTEIN, JJ. Alan B. Brill, P.C., Suffern, N.Y. (Paul S. Baum of counsel), for appellant. Kelly & Meenagh, Poughkeepsie, N.Y. (John P. Meenagh, Jr., of counsel), for defendant third-party plaintiff-respondent. Thomas M. Mascola, Nanuet, N.Y., for third-party defendant.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Meehan, J.), dated December 12, 1997, as granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action in the complaint premised on alleged violations of Labor Law §§ 240 and 241.

ORDERED that the order is affirmed insofar as appealed from, with costs payable to the respondent.

Contrary to the plaintiff's contention, there is ample evidence in the record to support the Supreme Court's conclusion that the actions of the defendant owner of the premises were merely those of an ordinary concerned homeowner and did not rise to the level of directing or controlling the manner or method of the plaintiff's performance of his work (see, e.g., Kostyj v. Babiarz, 212 A.D.2d 1010, 624 N.Y.S.2d 708;  Lane v. Karian, 210 A.D.2d 549, 619 N.Y.S.2d 796;  Kolakowski v. Feeney, 204 A.D.2d 693, 612 N.Y.S.2d 243;  Spinillo v. Strober Long Is. Bldg. Material Ctrs., 192 A.D.2d 515, 595 N.Y.S.2d 825).  Indeed, both the plaintiff and his employer, the third-party defendant, admitted that the employer instructed the plaintiff regarding which work was to be done and the manner in which it was to be performed, and that the defendant never gave any such instruction and did not provide any tools or safety equipment to the workers (see, Valentin v. Thirty-Four Sq. Corp., 227 A.D.2d 467, 643 N.Y.S.2d 157;  Lieberth v. Walden, 223 A.D.2d 978, 636 N.Y.S.2d 885).   Accordingly, the defendant succeeded in demonstrating that he was entitled to the homeowner's exemption under Labor Law §§ 240 and 241, and the Supreme Court properly granted those branches of his motion which were for summary judgment dismissing the causes of action premised on alleged violations of Labor Law §§ 240 and 241.

MEMORANDUM BY THE COURT.

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