Tomlins v. Siltone Building Co.

Appellate Division of the Supreme Court of New York

Tomlins v. Siltone Building Co.

267 A.D.2d 947, 699 N.Y.S.2d 854, 1999 N.Y. App. Div. LEXIS 13646

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1999

StatusPublished

Cited by2 cases

This text of 267 A.D.2d 947 (Tomlins v. Siltone Building Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tomlins v. Siltone Building Co., 267 A.D.2d 947, 699 N.Y.S.2d 854, 1999 N.Y. App. Div. LEXIS 13646 (N.Y. Ct. App. 1999).

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—Order affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendants Herbert Chirico and Lisa Chirico for summary judgment dismissing the complaint, cross claims and counterclaims against them. The record establishes that they were “owners” of the one-family dwelling under construction within the meaning of Labor Law § 240 (1) and § 241 (6) when plaintiff was injured (see, Reyes v Silfies, 168 AD2d 979, 980; DeFreece v Penny Bag, 137 AD2d 744), and thus are not subject to liability under those sections unless they directed or controlled the manner or method of plaintiff’s work (see, Reyes v Silfies, supra, at 980). Here, the Chiricos’ involvement in the project “did not amount to the kind of continuous direction and control over the manner or method of work that would expose a homeowner to liability” under those sections (Kostyj v Babiarz, 212 AD2d 1010, 1011; see, Lieberth v Walden, 223 AD2d 978, 979-980; Stephens v Tucker, 184 AD2d 828, 829). Furthermore, the record fails to establish any negligence by the Chiricos to support the common-law negligence or Labor Law § 200 claims.

The court also properly denied the motion of defendant Siltone Building Co., Inc. and the cross motion of defendant Robert W. Weaver seeking summary judgment dismissing the Labor Law § 240 (1) cause of action against them. Plaintiff raised a triable issue of fact whether he was employed in connection with the home construction project (cf., Gibson v Worthington Div., 78 NY2d 1108; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573). Plaintiff was injured when he fell approximately eight feet after stepping on and dislodging a sheet of particle board. The board had been placed over the cement-walled foundation excavation under the front porch but was not attached to the foundation. The porch is part of the structure, and the particle board was a “platform” or the functional equivalent of a “scaffold” within Labor Law § 240 (1). Thus, plaintiff was injured in a fall from an elevated worksite (see, Becerra v City of New York, 261 AD2d 188; Craft v Clark Trading Corp., 257 AD2d 886, 887-888; Robertti v Chang, 227 AD2d 542, lv dismissed 88 NY2d 1064).

All concur except Lawton and Balio, JJ., who dissent in part and vote to modify in the following Memorandum.

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—Order affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendants Herbert Chirico and Lisa Chirico for summary judgment dismissing the complaint, cross claims and counterclaims against them. The record establishes that they were “owners” of the one-family dwelling under construction within the meaning of Labor Law § 240 (1) and § 241 (6) when plaintiff was injured (see, Reyes v Silfies, 168 AD2d 979, 980; DeFreece v Penny Bag, 137 AD2d 744), and thus are not subject to liability under those sections unless they directed or controlled the manner or method of plaintiff’s work (see, Reyes v Silfies, supra, at 980). Here, the Chiricos’ involvement in the project “did not amount to the kind of continuous direction and control over the manner or method of work that would expose a homeowner to liability” under those sections (Kostyj v Babiarz, 212 AD2d 1010, 1011; see, Lieberth v Walden, 223 AD2d 978, 979-980; Stephens v Tucker, 184 AD2d 828, 829). Furthermore, the record fails to establish any negligence by the Chiricos to support the common-law negligence or Labor Law § 200 claims.

The court also properly denied the motion of defendant Siltone Building Co., Inc. and the cross motion of defendant Robert W. Weaver seeking summary judgment dismissing the Labor Law § 240 (1) cause of action against them. Plaintiff raised a triable issue of fact whether he was employed in connection with the home construction project (cf., Gibson v Worthington Div., 78 NY2d 1108; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573). Plaintiff was injured when he fell approximately eight feet after stepping on and dislodging a sheet of particle board. The board had been placed over the cement-walled foundation excavation under the front porch but was not attached to the foundation. The porch is part of the structure, and the particle board was a “platform” or the functional equivalent of a “scaffold” within Labor Law § 240 (1). Thus, plaintiff was injured in a fall from an elevated worksite (see, Becerra v City of New York, 261 AD2d 188; Craft v Clark Trading Corp., 257 AD2d 886, 887-888; Robertti v Chang, 227 AD2d 542, lv dismissed 88 NY2d 1064).

All concur except Lawton and Balio, JJ., who dissent in part and vote to modify in the following Memorandum.

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267 A.D.2d 947, 699 N.Y.S.2d 854, 1999 N.Y. App. Div. LEXIS 13646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomlins-v-siltone-building-co-nyappdiv-1999.

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