Jonathin Fowler v Violas

[*1] Fowler v Violas 2004 NY Slip Op 51136(U) Decided on September 22, 2004 Supreme Court, Ontario County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 22, 2004
Supreme Court, Ontario County

JONATHIN FOWLER, Plaintiff,

against

ADELINE VIOLAS, MARTHA V. CASELLA, ROBERT CASELLA, PETER D. VIOLAS, and DAVID J. VIOLAS, Defendants.



92706

Craig J. Doran, J.

The above-captioned action was commenced to recover damages for injuries sustained by Jonathin Fowler on May 31, 2002, while working as a roofer at a single-family residence. The plaintiff was employed by Victor Roofing and Siding, Inc., and was engaged in the installation of a new roof on a home owned by Adeline Violas. While preventing a co-worker from falling from the roof, plaintiff was himself knocked off the roof and fell to the ground. The residence is owned by defendant Adeline Violas. The remaining defendants are the adult children and son-in-law of Adeline Violas. These remaining defendants negotiated and contracted with Victor Roofing and Siding, Inc., for the installation of a new roof at their elderly mother's home. It is not disputed that the homeowner defendant did not contract for the work. Rather, her adult children did so as a gift to their mother. It is also not disputed that neither Adeline Violas, nor her children, supervised, directed or controlled the work activities of plaintiff or plaintiff's employer.

The plaintiff commenced this action against the various defendants herein, alleging violations of Labor Law §§ 200, 240 and 241 and common law negligence. Following joinder of issue and discovery, the plaintiff now moves for an order granting partial summary judgment for liability only against all of the defendants pursuant to Labor Law section 240(1). Each of the defendants have cross-moved for an order granting summary judgment dismissing plaintiff's complaint against them. The plaintiff has consented to the dismissal of the cause(s) of action alleging negligence and a violation of Labor Law section 200.

Both Labor Law §240(1) and §241 impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities. Those statutes also expressly and specifically exempt the "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law §240(1); §241) from the duties imposed thereunder.

[*2]

Defendant Adeline Violas asserts that as a homeowner of a single-family dwelling, she is entitled to the statutory homeowners' exemption. The plaintiff contends that she is not entitled to such exemption because, although she is an owner of a single-family dwelling, defendant Adeline Violas did not personally contract for the roofing work. This Court finds plaintiff's argument to be contrary to the legislative purpose for enacting the exemption. The stated purpose for including the homeowners' exemption in Labor Law §§ 240 and 241 was "To exempt owners of one and two family dwellings from strict liability for jobsite injuries under sections 240 and 241, Labor Law, where such owners exercise no direction or control over the work" (see, Memorandum of the Law Revision Commission, 1980 Leg. Doc. No 65(f), in support of Chapter 670 of the Laws of 1980). The statement in support of the bill provides, "It is unrealistic to expect the owner of a one or two family dwelling to realize, understand and insure against the responsibility section 240 and 241 now place upon him" (see, Memo of the Law Revision Comm, supra). The Commission to the 1980 Legislature states that it "believes that while the rule of strict liability has a salutary effect in promoting responsibility among those engaged in the business of construction and repair, and to owners of buildings other than one and two family dwellings, it should not apply to owners of one and two family homes who are not in a position to know about, or provide for the responsibilities of absolute liability" (see, Recommendation of Law Revision Comm. to 1980 Legislature, relating to the Strict Liability of Homeowners under Sections 240 and 241 of the Labor Law). Clearly, the intent of the inclusion of the homeowners' exemption in the amendments to §§240 and 241 of the Labor Law in 1980 was to exempt all homeowners of one and two family homes who do not direct and control the work. The critical factor in the exemption is the homeowner's direction or control (or lack thereof), not whether the homeowner personally contracted for the work.

In addition to being contrary to the stated purpose of the statutory exemption, a finding of liability upon this homeowner would be contrary to the case law on this issue. In the cases applying the exemption, direction or control over the work performed is clearly the necessary component to the imposition of liability of a homeowner under Labor Law §240(1) and §241, and the absence of same has been consistently held to avail the homeowner of the exemption (see, Jenkins v. Jones, 255 AD2d 805; Relyea v. Bushneck, 208 AD2d 1077). Herein, there is no contention by the plaintiff that Adeline Violas exercised any level of direction or control over the work that was performed on her residence. Accordingly, with respect to defendant Adeline Violas, plaintiff's motion for summary judgment is denied and defendant's cross-motion for summary judgment is granted.

With respect to the remaining defendants, this Court concludes that they owed no duty imposed under Labor Law §240(1) and §241. These defendants cannot be considered agents of the owner for purposes of imposing liability. "Only upon obtaining the authority to direct, supervise and control does a third party fall within the class of those having nondelegable liability as an 'agent' under sections 240 and 241" (see, Wright v. Nichter Construction Co, 213 AD2d 995 citing Russin v. Picciano & Son, 54 NY2d 311, at 318; Fisher v. Coghlan, 8 AD3d 974).

Neither can the remaining defendants be considered contractors for purposes of liability under the Labor Law. A contractor for purposes of liability under Labor Law §§240 and 241 only attaches to prime contractors who have authority to supervise or control the work being performed at the time of injury (see, Soskin v. Scharff, 309 AD2d 1102). A general contractor is generally responsible for the coordination and execution of all the work at the worksite. An entity is deemed [*3]a general contractor if it was responsible for coordinating and supervising the project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors (see, Bagshaw v. Network Service Management, Inc., 4 AD3d 831). There is no factual indicia of such contractor status in the instant case. This Court concludes that these defendants have established as a matter of law that they were not "responsible for co-ordinating and supervising the entire construction project," nor were they "invested with concomitant power to enforce safety standards and to choose responsible contractors" (see, Relyea v. Bushneck, supra; see also Cody v. Garman, 266 AD2d 850). As a consequence, they are not subject to liability as contractors under Labor Law §§ 240 and 241.

For the reasons set forth above, this Court hereby denies plaintiff's motion for summary judgment and grants the defendants' cross-motions for summary judgment.

This shall constitute the Decision of the Court. Submit Order accordingly.

_____________________________

Craig J. Doran

Acting Supreme Court Justice

Dated at Canandaigua, New York

this ____ day of September, 2004.