ANGELUCCI v. Lippolis Electric, Inc., Third-Party Defendant-Respondent.

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

Joseph ANGELUCCI, et al., Appellants, v. Benjamin SANDS, Defendants Third-Party Plaintiffs-Respondents, et al., Defendant; Lippolis Electric, Inc., Third-Party Defendant-Respondent.

Decided: September 30, 2002

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES and BARRY A. COZIER, JJ. LaSorsa & Beneventano (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellants. Thomas M. Bona, P.C., White Plains, N.Y. (Robert H. Steindorf and Stephanie K. Cervoni of counsel), for defendants third-party plaintiffs-respondents. MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Christopher J. Walsh of counsel), for third-party defendant-respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (Donovan, J.), entered May 22, 2001, as, upon an order of the same court (Lefkowitz, J.), dated November 16, 1999, denying that branch of the third-party defendant's motion which was for summary judgment dismissing the complaint, a trial order dismissing the Labor Law § § 200 and 240(1) causes of action, and a jury verdict in favor of the defendants third-party plaintiffs and against the plaintiffs on the issue of negligence, dismissed the complaint.

ORDERED that the judgment is affirmed insofar as appealed from, with costs;  and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The injured plaintiff, an electrician employed by the third-party defendant, was injured when he received an electric shock and fell from a ladder while upgrading the electrical service at the home of the defendants third-party plaintiffs (hereinafter the defendants) in Tarrytown.   The plaintiffs sought recovery, inter alia, pursuant to Labor Law § § 200 and 240(1), contending that one of the defendants sufficiently directed and controlled the injured plaintiff's work so that the defendants were not entitled to the protection of the one- or two-family homeowner exemption of Labor Law § 240(1), and are liable for his injuries under Labor Law § 200 and principles of common-law negligence.   The third-party defendant moved for summary judgment dismissing the complaint and third-party complaint, contending, inter alia, that the defendants are entitled to the protection of the Labor Law § 240(1) one- or two-family homeowner exemption since coordinating the tradespeople's work schedules cannot be considered work direction sufficient to expose the defendants to liability, and the defendants had no duty to the injured plaintiff under either Labor Law § 200 or the common law since the hazardous condition arose from his own dangerous work methods.   The Supreme Court denied the motion.

At the end of the trial, the Supreme Court dismissed the plaintiffs' Labor Law §§ 200 and 240(1) claims as a matter of law, finding that the defendants did not direct or control the injured plaintiff's work and had no knowledge of his hazardous work methods.   The court submitted the negligence cause of action to the jury and it returned a verdict in favor of the defendants on the issue of negligence.   The Supreme Court entered judgment in favor of the defendants and third-party defendant and against the plaintiffs.   The plaintiffs appeal.

 The homeowner exemption incorporated in Labor Law § 240(1) is construed very strictly in favor of the homeowners because such homeowners generally do not have the business sophistication to obtain the insurance required to protect them from the absolute liability imposed upon them by the statute (see Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117;  Duarte v. East Hills Constr. Corp., 274 A.D.2d 493, 711 N.Y.S.2d 182).   The defendants decided not to hire a general contractor, and decided that the defendant Benjamin Sands would coordinate the schedules of the various tradespeople and remain on the job site to answer their questions.   On the day of the accident, when Sands was informed that the electrical meter was locked, he requested that the injured plaintiff do what was necessary in order to proceed with the job, requested that he provide temporary power for the other tradespeople, and requested that he complete that part of the upgrade which would require disconnecting the electricity during the other contractors' lunch hour.   However, it is clear that these acts, without any specific direction as to how the injured plaintiff was to accomplish any of the above, do not constitute direction or control over the manner or method of the injured plaintiff's work (see Edgar v. Montechiari, 271 A.D.2d 396, 706 N.Y.S.2d 117;  Rodas v. Weissberg, 261 A.D.2d 465, 690 N.Y.S.2d 116;  Killian v. Vesuvio, 253 A.D.2d 480, 676 N.Y.S.2d 676;  cf.  Young v. Krawczyk, 223 A.D.2d 966, 636 N.Y.S.2d 897;  Chura v. Baruzzi, 192 A.D.2d 918, 596 N.Y.S.2d 592;  Emmi v. Emmi, 186 A.D.2d 1025, 588 N.Y.S.2d 481).   In that regard, the defendants are entitled to the protection of the homeowner exemption of Labor Law § 240(1).

 Additionally, since the defendants did not exercise supervisory control over the injured plaintiff's work, and the injuries were the result of the injured plaintiff's own hazardous work methods, the defendants did not owe either a statutory or a common-law duty to the plaintiffs (see Persichilli v. Triborough Bridge and Tunnel Auth., 16 N.Y.2d 136, 262 N.Y.S.2d 476, 209 N.E.2d 802;  Richichi v. Construction Mgt. Technologies, 244 A.D.2d 540, 664 N.Y.S.2d 615;  Heilmann v. Bronx Riv. Assocs., 204 A.D.2d 393, 611 N.Y.S.2d 884;  Kelly v. Bruno & Son, 190 A.D.2d 777, 593 N.Y.S.2d 555).

The remaining contentions are without merit or do not require reversal.

We note that not only were the determinations after trial in favor of the defendants and third-party defendant proper but that the third-party defendant's pretrial motion for summary judgment dismissing the complaint and third-party complaint (see Angelucci v. Sands, 297 A.D.2d 764, 747 N.Y.S.2d 798 [decided herewith] ), should have been granted.

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