Chambers v. Tom

95 A.D.3d 666, 944 N.Y.S.2d 142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2012
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 4, 2011, which, insofar as appealed from as limited by the briefs, in this action for personal injuries sustained by plaintiff while working on defendant Tom’s house, granted defendant Tom’s motion for summary judgment dismissing the complaint and all cross claims as against him, unanimously affirmed, without costs.

Defendant established his entitlement to judgment as a matter of law. Defendant submitted evidence showing that he fell within the exemption from liability pursuant to Labor Law § 241 (6), as an owner of the one-family dwelling who contracted for, but did not direct or control the subject work. Defendant’s instructions to plaintiff and his employer were limited to indicating generally where the wood should be installed. Elaintiff and defendant both testified that defendant provided no instructions on how to cut the wood, nor did he provide the circular saw that plaintiff was using at the time of the accident. Accordingly, defendant’s involvement in the project did not constitute direction or control over plaintiffs work, and plaintiffs opposition failed to raise a triable issue of fact (see Affri v Basch, 13 NY3d 592 [2009]; see also Thompson v Geniesse, 62 AD3d 541 [2009]).

We decline to consider plaintiff’s argument regarding his Labor Law § 200 claim since it was raised for the first time in his reply brief (see e.g. Cassidy v Highrise Hoisting & Scaffolding, Inc., 89 AD3d 510, 511 [2011]). Concur — Mazzarelli, J.P., Friedman, Catterson, Richter and Manzanet-Daniels, JJ.