In Affri v. Basch, — N.E.2d —-, 2009 WL 4030863 (November 24, 2009), the plaintiff was a neighbor of the defendant homeowner for whom he had previously provided handyman work. This time the plaintiff was performing renovation work including installing appliances. Plaintiff fell from a ladder while installing a vent on the roof and suffered injuries that required several surgeries.
The defendants moved for summary judgment contending that the situation fell under the one or two-family dwelling exception of Labor Law 240(1) and 241(6). These sections except from its provisions owners of one and two-family dwellings who contract for but do not direct or control the work. The issue in the case was whether in inducing the plaintiff to install the vent through the roof from which he fell rather than through a window, the defendant homeowner had directed the manner and means of the plaintiffs work.
The majority decision, written by Hon. Eugene F. Pigott Jr., held that the direction to place a vent through the roof was simply an aesthetic decision. Defendants did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion. Further, defendants did not provide the plaintiff with any equipment or work materials, nor were they even present at the time plaintiff undertook the venting work. As in Lee v. Astoria Generating Co., L.P., discussed in Part 1 of this blog post, Chief Judge Lippman and Senior Associate Judge Ciparick dissented. Associate Judge Theodore T. Jones, who authored the majority opinion in Leeconcurred with the dissent in Affri.
In the view of the dissent, written by Chief Judge Lippman, plaintiff has at the very least raised an issue of fact as to whether defendants were directing and controlling his work. Defendants’ conduct could be found to be more extensive than expected of the typical homeowners renovating their home inasmuch as their activity involved changing the fundamental or structural nature of the work. The dissentcountered that even if the end result was an aesthetic change, that did not alter the fact that the homeowner had directed the manner and means of the work and there was an issue of fact whether defendants crossed the line from general supervision to exercising direction and control over plaintiff’s work.
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