CODY v. GARMAN ABC (1999)

Plaintiff commenced this action to recover damages for injuries he sustained during the construction of a single-family residence.   Plaintiff was painting a dormer when his foot slipped on the roof and he fell to the ground.   The residence is owned by defendants Richard E. Garman and Patricia Garman.   Defendants Jerry Parrish and Chris Hogan, employees of defendant ABC Paving Co., Inc. (ABC Paving), performed services for the Garmans in connection with the construction, including soliciting and reviewing bids from contractors, reviewing bills and invoices for accuracy, arranging the work schedules of the contractors and providing access to the worksite.

 Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1) and denying defendants' cross motions insofar as they sought summary judgment dismissing the Labor Law § 240(1) claims.  “Owners of a one-family residence or their agents who contract for but do not direct or control the work are not liable under Labor Law § 240(1)” (Nowak v. Kiefer, 256 A.D.2d 1129, 685 N.Y.S.2d 151, lv. dismissed in part and denied in part 93 N.Y.2d 887, 689 N.Y.S.2d 428, 711 N.E.2d 642, rearg. dismissed 93 N.Y.2d 1000).   Defendants established as a matter of law that they did not direct or control plaintiff's work (see, Kostyj v. Babiarz, 212 A.D.2d 1010, 1011, 624 N.Y.S.2d 708), and plaintiff failed to raise a triable issue of fact with respect to defendants' liability under Labor Law § 240(1).   In addition, ABC Paving established as a matter of law that, contrary to plaintiff's allegation, it was not the general contractor on the project and thus is not subject to liability as a contractor under Labor Law § 240(1) (see, Feltt v. Owens, 247 A.D.2d 689, 668 N.Y.S.2d 757).

 The court also erred in denying defendants' cross motions insofar as they sought summary judgment dismissing the common-law negligence and Labor Law § 200 claims.   Defendants met their burden of establishing that they exercised no supervisory control over the manner or method of plaintiff's work, and plaintiff failed to raise a triable issue of fact (see, Nowak v. Kiefer, supra, at 1130, 685 N.Y.S.2d 151;  Riley v. Stickl Constr. Co., 242 A.D.2d 936, 937, 662 N.Y.S.2d 660).

 The court properly granted defendants' cross motions insofar as they sought summary judgment dismissing the Labor Law § 241(6) claims.   The violations of the Industrial Code alleged by plaintiff for the first time on appeal are not properly before us (see, Thompson v. Marotta, 256 A.D.2d 1124, 1125, 685 N.Y.S.2d 168;  Phelan v. State of New York, 238 A.D.2d 882, 883, 661 N.Y.S.2d 109, lv. denied 90 N.Y.2d 812, 666 N.Y.S.2d 100, 688 N.E.2d 1382), and plaintiff otherwise failed to allege the violation of any concrete specifications of the Industrial Code (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82).

We modify the order, therefore, by denying plaintiff's motion, granting defendants' cross motions in their entirety and dismissing the second amended complaint.

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

MEMORANDUM: