The Second Department, reversing Supreme Court, determined the homeowner’s exception to Labor Law liability applied to the owner of the home (Kathleen) but not to the agent of the owner who supervised the work (Mervyn). Plaintiff fell from a scaffold:
More generally, “Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents” … . ” A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured'” … . “It is not a defendant’s title that is determinative, but the amount of control or supervision exercised” … .
Here, the defendants failed to establish Mervyn’s prima facie entitlement to judgment as a matter of law on the Labor Law §§ 240(1) and 241(6) causes of action by demonstrating that he lacked the authority to supervise or control the plaintiff’s work … . Specifically, the defendants submitted transcripts of the plaintiff’s two depositions, at which he testified that, in addition to visiting the site daily and telling the plaintiff what work to do, Mervyn provided and instructed him to use the allegedly defective scaffold and a safety belt to complete the work that led to his injury. Moreover, the plaintiff testified that his boss told him to follow Mervyn’s instructions, and there is no dispute on this record that Mervyn was listed as an insured on the plaintiff’s employer’s policy. …
To be held liable pursuant to Labor Law § 200 or the common law in a case such as this, where the claim arises out of the methods or means of the work, a defendant must have authority to supervise or control the work … . Here, the defendants established Kathleen’s prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action against her, and the plaintiffs failed to raise a triable issue of fact in opposition … . For the same reasons as those articulated above, however, the defendants failed to satisfy their prima facie burden with respect to the plaintiff’s Labor Law § 200 and common-law negligence causes of action against Mervyn … . Abdou v Rampaul, 2017 NY Slip Op 01169, 2nd Dept 2-15-17
LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)/HOMEOWNER’S EXCEPTION (LABOR LAW-CONSTRUCTION LAW, (HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)/AGENT (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)