Enderby v. Keppler

184 A.D.2d 1058, 584 N.Y.S.2d 364, 1992 N.Y. App. Div. LEXIS 8311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1992
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted plaintiffs’ motion for summary judgment against defendant Polick, the general contractor, on the issue of defendant’s liability under Labor Law § 240 (1). Polick presented an estimate for the cost of the work, controlled the work and received payment for it. Labor Law § 240 (1) imposes a nondelegable duty on the general contractor to provide proper scaffolding and safety equipment and imposes absolute liability for a failure to do so (Heath v Soloff Constr., 107 AD2d 507, 510-511). Polick’s contention that Labor Law § 241-a applies to this action, raised for the first time on appeal, is not preserved for our review (see, Lister Elec. v Incorporated Vil. of Cedarhurst, 108 AD2d 731, 733).

Supreme Court properly denied plaintiffs’ motion for summary judgment against the homeowners. There is no question that the construction was on a single family home and that the remodeling was for additional living space. The Kepplers, as homeowners, are entitled to the exemption under Labor Law §240 (1) (see, Cannon v Putnam, 76 NY2d 644, 649). (Appeals from Order of Supreme Court, Orleans County, Wolf, Jr., J. — Summary Judgment. Present — Callahan, J. P., Green, Lawton, Davis and Doerr, JJ.