TOMLINS v. Herbert Chirico, Lisa Chirico, Defendants-Respondents, et al., Defendants.

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

Ralph S. TOMLINS, Plaintiff-Respondent-Appellant, v. SILTONE BUILDING CO., INC., Robert W. Weaver, Defendants-Appellants, Herbert Chirico, Lisa Chirico, Defendants-Respondents, et al., Defendants.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, WISNER, HURLBUTT and BALIO, JJ. Terrance P. Flynn, Buffalo, for defendant-appellant Siltone Building Co., Inc. Jeffrey A. Perla, Buffalo, for plaintiff-respondent-appellant. Thomas J. DeBoy, Buffalo, for defendants-respondents. Andrew D. Merrick, Buffalo, for defendant-appellant Robert W. Weaver.

 Supreme Court properly granted the motion of defendants Herbert Chirico and Lisa Chirico for summary judgment dismissing the complaint, cross claims and counterclaims against them.   The record establishes that they were “owners” of the one-family dwelling under construction within the meaning of Labor Law § 240(1) and § 241(6) when plaintiff was injured (see, Reyes v. Silfies, 168 A.D.2d 979, 980, 564 N.Y.S.2d 925;  DeFreece v. Penny Bag, 137 A.D.2d 744, 524 N.Y.S.2d 825), and thus are not subject to liability under those sections unless they directed or controlled the manner or method of plaintiff's work (see, Reyes v. Silfies, supra, at 980, 564 N.Y.S.2d 925).  Here, the Chiricos' involvement in the project “did not amount to the kind of continuous direction and control over the manner or method of work that would expose a homeowner to liability” under those sections (Kostyj v. Babiarz, 212 A.D.2d 1010, 1011, 624 N.Y.S.2d 708;  see, Lieberth v. Walden, 223 A.D.2d 978, 979-980, 636 N.Y.S.2d 885;  Stephens v. Tucker, 184 A.D.2d 828, 829, 584 N.Y.S.2d 667).   Furthermore, the record fails to establish any negligence by the Chiricos to support the common-law negligence or Labor Law § 200 claims.

 The court also properly denied the motion of defendant Siltone Building Co., Inc. and the cross motion of defendant Robert W. Weaver seeking summary judgment dismissing the Labor Law § 240(1) cause of action against them.   Plaintiff raised a triable issue of fact whether he was employed in connection with the home construction project (cf., Gibson v. Worthington Div. of McGraw-Edison Co., 78 N.Y.2d 1108, 578 N.Y.S.2d 127, 585 N.E.2d 376;  Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 561 N.Y.S.2d 892, 563 N.E.2d 263).   Plaintiff was injured when he fell approximately eight feet after stepping on and dislodging a sheet of particle board.   The board had been placed over the cement-walled foundation excavation under the front porch but was not attached to the foundation.   The porch is part of the structure, and the particle board was a “platform” or the functional equivalent of a “scaffold” within Labor Law § 240(1).   Thus, plaintiff was injured in a fall from an elevated worksite (see, Becerra v. City of New York, 261 A.D.2d 188, 690 N.Y.S.2d 52;  Craft v. Clark Trading Corp., 257 A.D.2d 886, 887-888, 684 N.Y.S.2d 48;  Robertti v. Chang, 227 A.D.2d 542, 642 N.Y.S.2d 715, lv. dismissed 88 N.Y.2d 1064, 651 N.Y.S.2d 407, 674 N.E.2d 337).

Order affirmed without costs.

We respectfully dissent in part because, contrary to the majority, we conclude that Supreme Court erred in failing to dismiss the Labor Law § 240(1) cause of action.   The record establishes that plaintiff was on the first floor of a house under construction when he exited the front door.   Upon exiting the house, plaintiff walked across a particle board placed over an area where excavation work had been performed.   When plaintiff walked across the board, it shifted and collapsed, causing him to fall eight feet to the ground.   Even if plaintiff were working at the time of the accident, he nevertheless was not entitled to the protection of Labor Law § 240(1).   Because plaintiff “was not performing any task at an elevated worksite and was not exposed to the type of hazard that the use or placement of the safety devices enumerated in Labor Law § 240(1) was designed to protect against”, the Labor Law § 240(1) cause of action cannot be sustained (Radka v. Miller Brewing, 182 A.D.2d 1111, 1111-1112, 583 N.Y.S.2d 87;  see, Ozzimo v. H.E.S., Inc., 249 A.D.2d 912, 914, 672 N.Y.S.2d 197;  Bradshaw v. National Structures, 249 A.D.2d 921, 672 N.Y.S.2d 173;  Riley v. Stickl Constr. Co., 242 A.D.2d 936, 662 N.Y.S.2d 660).   Consequently, we would modify the order by dismissing the Labor Law § 240(1) cause of action.

MEMORANDUM: