Defendants', EILEEN TATE, KEITH BROCK and CARLA BROCK ("Tate/Brock"), motion for an Order pursuant to CPLR § 3212 granting summary judgment and dismissing Plaintiff's Complaint—on the grounds that they are covered by the Labor Law's Homeowners' Exemption—and Defendant's, MARTIN-REID CONSTRUCTION LLC ("MARTIN-REID"), motion for an Order pursuant to CPLR § 8303-a granting sanctions and CPLR § 3212 granting summary judgment and dismissing Plaintiff's Complaint and all cross-claims—on the grounds that Plaintiff is barred from suing due to Workers' Compensation—are consolidated for decision herein.

Tate/Brock's motion is granted because the control they wielded over Plaintiff was no more significant than the type of control any homeowner has over renovations being done in their home. See, e.g., Spinillo v. Strober Long Island Bldg. Material Ctrs., 192 AD2d 515; Schwartz v. Foley, 142 AD2d 635; Danish v. Kennedy, 168 AD2d 768. [*2]

MARTIN-REID's motion for sanction is denied. The Court finds no basis for the imposition of sanctions on this record. See Decavallas v. Pappantoniou, 300 AD2d 617.

Martin-REID's motion for summary judgment is granted because the Workers' Compensation Board determined that the Plaintiff was MARTIN-REID's employee in a May 15, 2007 decision. See Botwinick v. Ogden, 59 NY2d 909, 11; O'Rourke v. Long, 41 NY2d 219, 228; see alsoValenziano v. Niki Trading Corp., 21 AD3d 818.

Brief Summary

MARTIN-REID was a general-contractor hired by Tate/Brock to convert the one-family home they owned to a two-family by adding a second floor. MARTIN-REID employed Plaintiff as a laborer for this project. MARTIN-REID provided the materials, tools and plans/drawings necessary to complete the project. (Noel EBT at; 43:21-25; 44:2-6; 179:4-25.) One of the owner/officers of MARTIN-REID, Ronald Reid, instructed and inspected Plaintiff's work at the project site. (Id. at 43:5-20; 47:13-22.) When Plaintiff noticed that work in the attic was being done incorrectly, he informed Paula Martin, Ronald Reid's wife and fellow owner/officer of MARTIN-REID, about this, and she told him to go up and correct it. (Id. at 61:15-25; 62:2-17). While Plaintiff was assisting others in installing sheets of plywood to the attic floor, he stepped backwards and into a space in between two beams where his foot got stuck, resulting in a fracture.

Plaintiff also mentioned that when he was removing cabinets in the kitchen, Ms. Tate requested that he be careful with the removal because she wanted to reuse the cabinets, she also told him where to pack the cabinets themselves. (Id. at 54:11-17.)

Arguments

Plaintiff brought suit alleging violations of Labor Law §§ 240 and 241 and Industrial Code 23-1.7. Tate/Brock are seeking summary judgment based on the homeowners' exemption to the Labor Law. MARTIN-REID is seeking summary judgment based on its claim that Plaintiff was its employee, thus, he was barred by Workers' Compensation, and for sanctions based on Plaintiff's refusal to discontinue this matter on that basis.

The Homeowners' Exemption to the Labor Law

"The exemption from liability for the owners of one- and two-family dwellings provided in Labor Law § 240 and § 241(6) is limited to those who contract for but do not direct or control the work.'" Garcia v. Martin, 285 AD2d 391. "The phrase direct or control as used in those statutes is construed strictly and refers to the situation where the owner supervises the method and manner of the work." Jumawan v. Schnitt,35 AD3d 382. "The premise of the exemption is that strict liability under the Labor Law should not be imposed upon owners who are not in a position to know about, or provide for the [*3]responsibilities of absolute liability.'" Spinillo v. Strober Long Island Bldg. Material Ctrs., 192 AD2d 515.

Plaintiff contends that Ms. Tate's request for him to be careful while removing a set of kitchen cabinets because she wanted to reuse them is sufficient to show direction or control. The Court disagrees. None of the Defendant owners "provided or suggested that any particular tools, materials, or safety devices be used." Jumawan, supra at 383; Spinillo, supra at 516; see also Jacobsen v. Grossman, 206 AD2d 405, 406. The Court finds that Ms. Tate's request was the type of control that was "no different than the type of control any homeowner has over work being done in his or her home." Spinillo, supra at 516; see also Schwartz v. Foley, 142 AD2d 635; Danish v. Kennedy, 168 AD2d 768.

Workers' Compensation Determinations

Plaintiff does not dispute that the sole and exclusive remedy of an employee against his employer for injuries suffered during the course of that employment are Workers' Compensation benefits. See Workers Comp. Law §§ 11 & 29(6); see also Gonzales v. Armac Indus., 81 NY2d 1; Botwinick v. Ogden, 59 NY2d 909; Spector v. City of NY, 245 AD2d 68. Plaintiff contends, however, that he was not MARTIN-REID's employee, but rather an independent contractor. Although the Court should view the facts in a light most favorable to the non-moving party on a motion for summary judgment, there is a decision from the Workers' Compensation Board, which prevents the Court from re-visiting this issue.

Despite Plaintiff's arguments and evidence in support of his status as an independent contractor, MARTIN-REID has proffered the Workers' Compensation Board's May 15, 2007 Decision, wherein they found that Plaintiff "had a work related accident on 7/19/2006 and properly notified employer Martin-Reid Construction. Case is closed without prejudice until proper medical report is filed." The decision also mandated that if Plaintiff objected to "part or all" of the decision, he had 30 days in which to object. And that if he failed to object within that time, the decision would become final. Although Plaintiff claims that: he was not MARTIN-REID's employee; he never filed for benefits; and he was unaware that a claim was filed on his behalf, the Court is unable to disregard the Board's decision.

Primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law is vested in the Board, and the law is settled that when a plaintiff brings a common-law action against one who may be his employer,' it is inappropriate for the courts to express views with respect thereto pending determination by the board on the issue

Botwinick v. Ogden, 59 NY2d 909, 11; see alsoValenziano v. Niki Trading Corp., 21 AD3d 818. (citations omitted). Therefore, "an adjudication by the board that there was a relationship between accident and employment, unless reversed on a direct appeal, [*4]would preclude any recovery in a civil action against the employer." O'Rourke v. Long, 41 NY2d 219, 228. Consequently, "where the availability of workmen's compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions." Id. As such, Plaintiff' arguments that he is not bound by the Board's decision is of no moment, given the Court of Appeals' proclamations on the issue.

The foregoing shall constitute the decision and order of this Court.

Dated: _________________

J.S.C.