Wade Clark Mulcahy LLP

In <a href="https://www.wcmlaw.com/wp-content/uploads/2020/01/Campanello-v-Cinquemani.pdf">Campanello v Cinquemani</a>, the plaintiff allegedly was injured while removing trees from the backyard of the defendant's Long Island single family home.  The plaintiff was hired by the defendant's cousin, whom he considered his boss.  At the time of the accident, the plaintiff was using the defendant's chainsaw to cut branches from a downed tree while another worker assisted him by pulling away the branches after they were cut.  The defendant's cousin was operating an excavator to move another downed tree that was situated on top of the tree the plaintiff was cutting.  According to the plaintiff, as he was using the chainsaw to cut branches from the downed tree, the excavator moved the top tree, causing a branch underneath it to snap back and strike him on the forehead.

The plaintiff filed a lawsuit against the defendant homeowner, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendant moved for summary judgment dismissing the Complaint. The lower court granted the defendant's motion and the plaintiff appealed to the Appellate Division, Second Department.

On appeal, the Appellate Division discussed the scope of the Labor Law, and the important homeowner exemption provision.   The Appellate Division noted that Labor Law §§ 240(1) and 241(6) provide an exemption from liability for "owners of one and two-family dwellings who contract for but do not direct or control the work." The evidence submitted by the defendant in support of his motion, including the plaintiff's deposition testimony, established, prima facie, that the work was being performed at the defendant's single-family residence, and that the defendant did not direct or control the plaintiff's work.

Next the Appellate Division considered the plaintiff’s argument on appeal, that the defendant/homeowner’s activities in visiting the work site, providing plans for the area to be worked on, making general decisions, and reviewing the progress of the work, placed the defendant outside the protections of the homeowner’s exemption.  The Appellate Division ruled that these types of activities were “no more extensive than would be expected of the ordinary homeowner."

The Appellate Division also agreed with the Supreme Court that a common law negligence claim could not be upheld because the defendant did not create or have actual or constructive notice of any dangerous condition involving the tree branch and the defendant did not have authority to supervise or control the performance of the plaintiff’s work.  Accordingly, the Appellate Division affirmed the dismissal of the action.

Thanks to George Parpas for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.