GAMBEE v. DUNFORD (2000)

 Plaintiff was hired by Mark J. Dunford (defendant) to construct defendant's single-family residence and was injured when he allegedly tripped in the foyer on a stone and fell through a stairwell to the basement.   Supreme Court properly denied that part of defendant's motion seeking summary judgment dismissing the Labor Law § 241 claim.  “[O]wners of one-and two-family dwellings who contract for but do not direct or control” the work on the dwelling are exempt from liability under Labor Law § 241 (Ennis v. Hayes, 152 A.D.2d 914, 915, 544 N.Y.S.2d 99).   “Whether an owner's conduct amounts to directing or controlling depends upon the degree of supervision exercised over the method and manner in which the work is performed” (Ennis v. Hayes, supra, at 915, 544 N.Y.S.2d 99;  see, Lieberth v. Walden, 223 A.D.2d 978, 979, 636 N.Y.S.2d 885).   There is no direction or control if the owner informs the worker what work should be performed, but there is direction and control if the owner specifies how that work should be performed (see, Reyes v. Silfies, 168 A.D.2d 979, 979-980, 564 N.Y.S.2d 925;  Rimoldi v. Schanzer, 147 A.D.2d 541, 545, 537 N.Y.S.2d 839).   Here, plaintiff raised an issue of fact whether defendant told plaintiff how to perform certain work.

 The court should, however, have granted that part of defendant's motion seeking summary judgment dismissing the Labor Law § 200 claim and common-law negligence cause of action.   The stone in the foyer constituted an alleged defect in the premises, and defendant cannot be liable without supervision or control of the general condition of the premises (see, Miller v. Wilmorite, 231 A.D.2d 843, 844, 648 N.Y.S.2d 485) and notice, either actual or constructive, of the unsafe condition (see, Chaney v. New York City Tr. Auth., 12 A.D.2d 61, 68, 208 N.Y.S.2d 205, affd. 10 N.Y.2d 871, 223 N.Y.S.2d 502, 179 N.E.2d 507) or a showing that he created it (see, Blackburn v. Eastman Kodak Co., 256 A.D.2d 1123, 684 N.Y.S.2d 451;  McCague v. Walsh Constr., 225 A.D.2d 530, 638 N.Y.S.2d 752).   Defendant established as a matter of law that he had no notice of the condition and did not create it, and plaintiff failed to raise an issue of fact.   We modify the order, therefore, by granting the motion of defendant in part and dismissing the Labor Law § 200 claim and common-law negligence cause of action against him.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: