Wade Clark Mulcahy LLP

<p style="text-align: justify;">Recently, New Yorks’ Second Department analyzed the homeowner’s exemption under Labor Law §241(6).  In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/12/Venter-v.-Cherkasky.pdf">Venter v. Cherkasky</a></em>, plaintiff was a painter employed with a company hired by the defendant homeowners to paint and re-finish kitchen cabinets and a kitchen island in their home. In an unusual accident, the painter was injured when an electrical explosion occurred on the kitchen island as he was applying lacquer paint thinner to remove the paint. He asserted defendants violated Labor Law §241 by controlling and supervising his work which led to the injury. The defendant homeowners moved for summary judgment to dismiss the Labor Law §241 claim citing their exemption under the statute. The trial court denied summary judgment citing issues of fact on whether they supervised his work. Under the exemption of Labor Law §241(6), owners of 1 or 2 family dwellings are exempt from liability unless it can be proven the defendants directed or controlled the work being performed. The phrase “direct or control,” as used in Labor Law §241(6), “is construed strictly and refers to the situation where the owner supervises the method and manner of the work.” [<em>Bulux v Moran</em>, 189 AD3d at 762 (2d Dept. 2019)]. “The relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee” [<em>Rajkumar v Lal</em>, 170 AD3d 761, 762 (2d Dept. 2019)].</p>
<p style="text-align: justify;">Plaintiff testified that the defendant homeowner Betsy Cherkasky told him to apply the lacquer paint thinner to the kitchen island instead of sanding off the paint on the island as he did on the kitchen cabinets the previous day, as she did not want any more dust. Although the defendants testified they did not give plaintiff any instructions on how to do his work, and even submitted an affidavit from plaintiff’s employer to that effect, the trial court concluded that it was a triable issue of fact for a jury to determine. The Second Department agreed with the trial court’s reasoning and upheld the decision to deny summary judgment on that claim.</p>
<p style="text-align: justify;">The decision accentuates that <u>any instructions</u> given by a homeowner to a worker that can be <u>related or connected</u> to the injury arising from that work may create an issue of fact precluding exemption from liability under the Labor Law §241(6). A residential homeowner should avoid any instructions or comments to a worker on how, when or where to do their work. Simply put, leave the work to the professionals and their supervisors. Any deviation from that standard may lead to liability of the homeowners in a work-related accident under Labor Law §241.</p>
<p style="text-align: justify;">Thanks to Ray Gonzalez for his assistance with this article.  Should you have any questions, please contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.</p>