ROGER CARROW PLAINTIFF APPELLANT v. STEPHEN BOGARD DEFENDANT RESPONDENT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained while erecting trusses on a pole barn being constructed on residential property owned by defendant.   Defendant hired plaintiff to erect the trusses, and it is undisputed that defendant provided no direction or instructions with respect to the manner in which the work was to be performed.   On the day of the accident, defendant was out of town on a fishing trip, and plaintiff and his crew made all decisions while erecting the trusses.   The accident occurred when plaintiff erroneously cut the main supports for the trusses, causing them to collapse.

We conclude that Supreme Court properly granted those parts of defendant's motion for summary judgment dismissing the Labor Law causes of action, alleging violations of Labor Law § 240(1) and § 241(6).   Contrary to plaintiff's contention, the homeowner exemption contained in those statutes applies to preclude liability against defendant inasmuch as he falls within the exemption for “ ‘owners of one and two-family dwellings who contract for but do not direct or control the work’ “ (Bartoo v. Buell, 87 N.Y.2d 362, 367;  see generally Schultz v. Noeller, 11 AD3d 964).   Here, defendant established that he did not direct or control “ ‘the method and manner in which the work [was] performed’ “ (Gambee v. Dunford, 270 A.D.2d 809, 810;  see Miller v. Shah, 3 AD3d 521, 522;  Soskin v. Scharff, 309 A.D.2d 1102, 1104;  Kostyj v. Babiarz, 212 A.D.2d 1010), and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

We further conclude that the court properly granted that part of the motion seeking summary judgment dismissing the common-law negligence cause of action.   Defendant established that he did not have authority to control the injury-producing work (see Comes v New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877;  Farrell v. Okeic, 266 A.D.2d 892;  see generally Rizzuto v. L.A. Wenger Contr.   Co., 91 N.Y.2d 343, 352), and plaintiff failed to raise a triable issue of fact (see generally Zuckerman, 49 N.Y.2d at 562).

In view of our determination, we do not address plaintiff's remaining contentions.

Patricia L. Morgan

Clerk of the Court