Marczak v Galant
Annotate this CaseDecided on December 30, 2004
Supreme Court, New York County
Henryk Marczak, Plaintiff,
against
Deborah Galant and Paul Galant, Defendants. Deborah Galant and Paul Galant, Third-Party Plaintiffs, . Zen General Construction and Renovation Corp. Third Party Defendants.
102132/03
Walter B. Tolub, J.
By this application, defendants, Deborah Galant and Paul Galant, seek an order pursuant to CPLR § 3212 granting summary judgment and dismissal of plaintiff's causes of action for (a) violations of Labor Law §§ 240(1) and 241(6) based on the statutory exemption for owners of single-family homes who contract for but do not direct or control the work (see Labor Law §§ 240, 241) and (b) for violations of Labor Law § 200 and common law negligence, because the defendants did not supervise any of the work or supply the plaintiff with tools.
This case arises out of a renovation project in which the defendants contracted with the third party defendant Zen General Construction and Renovation Corp. ("Zen"), to convert a multiple dwelling into a single family home located at 427 East 85th Street New York, NY. The plaintiff, an employee of Zen, was injured while cutting a beam with an electric saw that he knew was missing its protective shield. While cutting the beam, the saw bounced out of his hand, cut his chin and damaged four front teeth. The plaintiff commenced an action to recover under common law negligence and Labor Law §§ 240(1), 241(6) and 200.
Plaintiff's Labor Law §§ 240 And 241 Causes Of Action
Labor Law §§ 240 and 241 exempt owners of one and two-family residences who contract for but do not direct or control the work, from liability for injuries to workers engaged in construction (Janowski v. Massoni, 276 AD2d 605, 606 [2d Dep't 2000]). Although plaintiff was injured while converting defendants' building from a multiple dwelling into a single family residence, the fact that at the time of injury the building was still classified as a multiple dwelling does not control (Stejskal et al. v. Simons, 309 AD2d 853, 855 [2d Dep't 2003]). Whether the exemption is available to an owner in a particular case turns on the site and purpose of the work (Cannon v. Putnam, 76 NY2d 644, 650 [1990]). In the instant case, the defendants intended to occupy the premises as their home and the purpose of the work was to convert the building into a single family dwelling, not to enhance a commercial usage. As a matter of law the building is [*2]considered a single family dwelling for Labor Law purposes and the homeowner's exemption applies (See Khela v. Neiger, 85 NY2d 333, 338 [1995]).
Defendants may still be liable under the statute, however, if they directed or controlled the work (East Hills Construction Corp. v. Gabrielli, 274 AD2d 493 [2d Dep't 2000]). The phrase "direct or control" is construed strictly and refers to situations where "the owner supervises the method and manner of the work" (Kolakowski et al., v. Feeney, 204 AD2d 693 [2d Dep't 1994] quoting Rimoldi v. Schanzer, 147 AD2d 541, 545 [2d Dep't 1989]). Directing and controlling must be more than mere presence on the site; actual control is required (Brown v. New York City Economic Dev. Corp., 650 NYS2d [App. Div. 1st Dep't 1996]). Here, the plaintiff admits to following the orders of the supervisor designated by Zen, to seeing the owners in the building but not speaking to them and that the owners did not provide any of the tools used on the renovation project. Plaintiff did not submit any evidence that establishes the owners directed any of the work. The evidence merely establishes that the owners would check on the site. Because the defendants did not direct or control the work, the plaintiff does not state a cause of action against the defendants.
Plaintiff's Labor Law § 200 And Negligence Causes of Action
To recover against all owners of buildings for negligence and breach of the common-law duty to maintain a safe workplace, as codified in Labor Law § 200, the plaintiff must show that the owners controlled the very manner or methods by which plaintiff was injured or that the owners exercised direct supervision and control over the work at the time of the incident (Shields v. General Electric Company, 3 AD3d 715 [3d Dep't 2004]). "An implicit precondition of the duty to provide a safe workplace is that the party charged with that responsibility have the authority to control the activity which brings about the injury" (Louis N. Picciano & Son et al., v. Village of Endicott et al., 54 NY2d 311, 317 [1981]). As discussed above, the owners exercised no supervisory controlover the renovation. By plaintiff's own admission defendants would come to the site only sporadically. It follows that no liability attaches to the owners under the common law or under Labor Law § 200.
Furthermore, the duty to provide a safe workplace is not breached where the worker's injuries arise out of defects in his employer's tools (Cruz v. Toscano, 269 AD2d 122 [App. Div. 1st Dep't 2000]). In Cruz the court held that the homeowner had no duty to warn a construction worker about an alleged defect in a saw provided by the worker's employer, where the worker used the saw on other occasions and was aware that it had no guard (id.). If a defect is readily apparent to the plaintiff, negligence or a violation of Labor Law § 200 will not be established (Zavesky v. DeCato Bros., 223 AD2d 642 [2d Dep't 1996]). Here, there is no evidence that the owners supplied the plaintiff with the saw. In this case the plaintiff admitted knowing that the electric saw's protective shield was not attached on the day of the incident but failed to submit proof that the owners were aware that the saw was missing its cover. Where the dangerous condition arises from the contractor's tools or methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under the Labor Law (Comes v. New York State Elec. & Gas Corp., 82 NY2d 876 [1993]).
The uncontroverted facts entitle movant to judgment as a matter of law (Barr, Altman, Lipshie and Gerstman; New York Civil Practice Before Trial [James Publishing 2001-2003] § [*3]37:01; CPLR 3212). Since the owners fit within the one and two-family exception, the owners did not direct or control the work performed and did not supply the tools for the renovation, the motion for summary judgment is granted pursuant to CPLR § 3212 and the plaintiff's causes of action based on negligence and Labor Law §§ 200, 240(1) and 241(6) are dismissed. Accordingly it is
ORDERED that defendants' motion for summary judgment and dismissal of the complaint is granted; and it is further
ORDERED that the Clerk of Court enter judgment in favor of the defendants.
This memorandum opinion constitutes the decision and order of the Court.
Dated: December 30, 2004
_____________________________
Hon. Walter B. Tolub, J.S.C.
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