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THERE WAS A QUESTION OF FACT WHETHER THE LEVEL OF CONTROL EXERCISED BY THE DEFENDANT OVER THE CONSTRUCTION WAS SUCH THAT HE WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION IN THIS LABOR LAW 240(1) AND 241(6 ACTION; COMPLAINT REINSTATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant’s motion for summary judgment in this Labor Law 240 (1) and 241 (6) action should not have been granted. Plaintiff fell from an unsecured ladder used to get from the basement to the first floor of the building under construction. Supreme Court had ruled the statutory homeowner’s exemption insulated the defendant from liability:

… [P]laintiff testified that defendant supplied the ladders that were used by the contractors, and the nonparty contractor testified that defendant was on site giving direction nearly every day. The nonparty contractor had asked defendant several times prior to plaintiff’s accident for permission to build stairs from the basement to the first floor, insisting that it was necessary to allow for safer and easier access to the first floor. Although defendant was aware that workers had been entering the house through the basement and using a ladder to access the first floor, he refused permission to build the stairs until after plaintiff’s accident, at which time defendant immediately directed the nonparty contractor to build the stairs. Such participation goes “far beyond ‘[a] homeowner’s typical involvement in a construction project’ ” … .. Indeed, the nonparty contractor further testified that a real estate limited liability company of which defendant was a member had hired him to perform work on the construction of a six-story building, suggesting that defendant had a degree of “sophistication or business acumen” such that he was in a position to know about and insure himself against his exposure to absolute liability … . O’Mara v Ranalli, 2021 NY Slip Op 00982, Fourth Dept 2-11-21

 

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