SCHWAB v. CAMPBELL (1999)

 Supreme Court erred in denying that part of defendant's motion for summary judgment dismissing the Labor Law claims because plaintiff's decedent volunteered to assist defendant and defendant's decedent in the construction of the barn, and there is no evidence of compensation in the record.   The provisions of the Labor Law apply to an employee, defined as “a mechanic, workingman or laborer working for another for hire” (Labor Law § 2 [5];  see, Whelen v. Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032).   A person is employed if he or she is “permitted or suffered to work” (Labor Law § 2 [7];  see, Whelen v. Warwick Val. Civic & Social Club, supra, at 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032).   The provisions of the Labor Law on which plaintiff relies are “inapplicable to persons such as friends and neighbors who voluntarily render casual assistance to a homeowner in performing a home repair or construction job” (Howerter v. Dugan, 232 A.D.2d 524, 525, 649 N.Y.S.2d 32;  see also, Whelen v. Warwick Val. Civic & Social Club, supra, at 971, 419 N.Y.S.2d 959, 393 N.E.2d 1032).   Plaintiff's reliance on Thompson v. Marotta (256 A.D.2d 1124, 1125, 685 N.Y.S.2d 168) is misplaced because there is no evidence that plaintiff's decedent was “fulfilling [an] obligation” when he performed the work.   Nor did plaintiff raise an issue of fact by submitting the affidavit of a private investigator.   The silence of defendant's decedent during the private investigator's interview of a third party cannot be considered an admission by silence because there is no evidence that defendant's decedent was given an opportunity to speak (see, People v. Lord, 103 A.D.2d 1032, 1033, 478 N.Y.S.2d 425).

 The status of plaintiff's decedent as a volunteer does not absolve defendant of liability for common-law negligence.   To avoid liability for negligence, defendant must establish as a matter of law that neither she nor her husband supervised or controlled the work (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110) and that they had no actual or constructive notice of the defect (see, Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, 459 N.Y.S.2d 196, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243).   Defendant established that neither she nor her husband supervised the work but failed to establish as a matter of law that they were unaware of a defect. Thus, defendant failed to establish her entitlement to summary judgment dismissing the negligence claim (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   We modify the order by granting defendant's motion in part and dismissing the Labor Law claims.

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

MEMORANDUM: