Chambers v Tom

Chambers v Tom 2012 NY Slip Op 03937 Decided on May 22, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 22, 2012
Mazzarelli, J.P., Friedman, Catterson, Richter, Manzanet-Daniels, JJ.
7699 309351/08

[*1]Wayne Chambers, Plaintiff-Appellant,

v

Robert Tom, et al., Defendants-Respondents, Rodney Joseph, et al., Defendants.




Antin Ehrlich & Epstein, LLP, New York (Jeffrey S. Antin of
counsel), for appellant.
Brand, Glick & Brand, P.C., Garden City (Andrew Federman
of counsel), for respondents.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 4, 2011, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained by plaintiff while working on defendant Tom's house, granted defendant Tom's motion for summary judgment dismissing the complaint and all cross claims as against him, unanimously affirmed, without costs.

Defendant established his entitlement to judgment as a matter of law. Defendant submitted evidence showing that he fell within the exemption from liability pursuant to Labor Law § 241(6), as an owner of the one-family dwelling who contracted for, but did not direct or control the subject work. Defendant's instructions to plaintiff and his employer were limited to indicating generally where the wood should be installed. Plaintiff and defendant both testified that defendant provided no instructions on how to cut the wood, nor did he provide the circular saw that plaintiff was using at the time of the accident. Accordingly, defendant's involvement in the project did not constitute direction or control over plaintiff's work, and plaintiff's opposition failed to raise a triable issue of fact (see Affri v Basch, 13 NY3d 592 [2009]; see also Thompson v Geniesse, 62 AD3d 541 [2009]). [*2]

We decline to consider plaintiff's argument regarding his Labor Law § 200 claim since it was raised for the first time in his reply brief (see e.g. Cassidy v Highrise Hoisting & Scaffolding, Inc., 89 AD3d 510, 511 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 22, 2012

CLERK