*The One or Two-family Dwelling Exception in Labor Law §§ 240 and 241. I – Direction and Control

On November 24, 2009, in Affri v Basch, the Court of Appeal was presented with the issue of “whether defendants exercised sufficient direction and control over plaintiff’s work to overcome the one or two-family dwelling exception found in Labor Law §§ 240 and 241.”

In an opinion by Judge Pigott, with Judges Graffeo, Read and Smith concurring, the Court held that they did not and therefore affirmed the order of the Appellate Division, 2nd Department which had reversed the lower court. Chief Judge Lippman dissented and voted to reverse the Appellate Division, with Judges Ciparick and Jones concurring.

“Defendants hired plaintiff, a neighbor who had previously done small jobs for them, to perform renovations to an apartment within their home. The work included, as relevant to this appeal, the installation of appliances. Plaintiff fell from a ladder while installing a vent on the roof and suffered injuries that required several surgeries.

Plaintiff brought this action against defendants, alleging violations of Labor Law §§ 200, 240 (1) and 241 (6) and common law negligence. …

Labor Law § 240 provides in pertinent part as follows:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, …

A similar homeowner’s exemption is found in Labor Law § 241.

… We have previously stated that whether a defendant’s conduct amounts to direction and control depends upon the degree of supervision exercised over “the [method and manner in which the work is performed” (Duda v Rouse Constr. Corp, 32 NY2d 405, 409 [1973]).

Here, defendants’ participation was limited to discussion of the results the homeowner wished to see, not the method or manner in which the work was then to be performed. Defendants’ direction to plaintiff to place a vent through the roof was simply an aesthetic decision. Defendants did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion. Further, defendants did not provide the plaintiff with any equipment or work materials, nor were they even present at the time plaintiff undertook the venting work. Rather, both the method and the manner of plaintiff’s work were left to his judgment and experience.

Plaintiff’s affidavit indicating that he expressed reluctance to go on the roof because of concern for his safety is insufficient to raise an issue of fact. Although plaintiff claims that he did not want to go up on the roof to run the vent because he was working alone, he proceeded to do so—not at the specific direction of defendants but of his own volition to complete the work.

For the same reasons, defendants were entitled to summary judgment dismissing the causes of action pursuant to Labor Law § 200 and for common law negligence because defendants exercised no supervisory control over the activity bringing about the injury (see Lombardi v Stout, 80 NY2d 290, 295 [1992]).

Judge Lippman’s dissent is helpful in setting forth what happened and thus what is insufficient to defeat the homeowner’s exception. In his opinion Judge Lippman said “plaintiff asserts that when he told Mr. Basch that in order to move a sink to Basch’s preferred location he would need to cut a beam that supported the house, defendant instructed him to cut the beam. Basch told plaintiff to place the washer-dryer vent through the roof, rather than through the window, after plaintiff expressed reservations about the safety of that procedure …

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