Opinion
01-14-2016
John FEILEN et al., Appellants, v. Juli CHRISTMAN et al., Respondents. (And a Third–Party Action.).
Finkelstein & Partners, LLP, Newburgh (Andrew L. Spitz of counsel), for appellants. Williamson Clune & Stevens, Ithaca (John H. Hanrahan 3d of counsel), for respondents.
Finkelstein & Partners, LLP, Newburgh (Andrew L. Spitz of counsel), for appellants.
Williamson Clune & Stevens, Ithaca (John H. Hanrahan 3d of counsel), for respondents.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR., LYNCH and DEVINE, JJ.
LAHTINEN, J.P.Appeal from an order of the Supreme Court (Mott, J.), entered December 29, 2014 in Ulster County, which, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.
While applying a wood preservative to a new cedar shake roof that he had just replaced on defendant Juli Christman's house, plaintiff John Feilen fell off the roof sustaining injuries. He and his wife, derivatively, commenced this action against Christman, individually, and her business, defendant Jingle Bell Bed and Breakfast, alleging negligence and violations of Labor Law §§ 240(1) and 241(6). Following discovery, all parties made motions for summary judgment. Supreme Court denied plaintiffs' motion and granted defendants' cross motion finding, as to the negligence cause of action, that Christman exercised no supervision or control over Feilen's work and, as to the Labor Law causes of action, that the homeowner's exemption applied. Plaintiffs appeal arguing that Supreme Court erred in dismissing their Labor Law causes of action.
Defendants brought a third-party action against plaintiffs' construction business, for whom Feilen was working when the accident occurred.
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" Labor Law § 240(1) and § 241(6) do not apply to ‘owners of one and two-family dwellings who contract for but do not direct or control the work’ of the person that they hire" (Snyder v. Gnall, 57 A.D.3d 1289, 1290, 870 N.Y.S.2d 562 [2008], quoting Bartoo v. Buell, 87 N.Y.2d 362, 367, 639 N.Y.S.2d 778, 662 N.E.2d 1068 [1996] ). The homeowner's exemption was "intended by the Legislature to shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law [and] reflect the legislative determination that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection" (Bartoo v. Buell, 87 N.Y.2d at 367, 639 N.Y.S.2d 778, 662 N.E.2d 1068 ; see Affri v. Basch, 13 N.Y.3d 592, 596, 894 N.Y.S.2d 370, 921 N.E.2d 1034 [2009] ; Hook v. Quattrociocchi, 231 A.D.2d 882, 883, 647 N.Y.S.2d 881 [1996] ). "Use of a portion of a defendant's premises for commercial purposes does not automatically destroy the exemption. Rather, the exemption depends upon the site and purpose of the work" (Facteau v. Allen, 293 A.D.2d 847, 847, 740 N.Y.S.2d 518 [2002] [citations omitted]; see Sanchez v. Marticorena, 103 A.D.3d 1057, 1058, 962 N.Y.S.2d 425 [2013] ). Under the "flexible ‘site and purpose’ test" (Bartoo v. Buell, 87 N.Y.2d at 368, 639 N.Y.S.2d 778, 662 N.E.2d 1068 ), the use of a defendant's residence as a rental, bed and breakfast or group home does not necessarily extinguish the exemption (see Sanchez v. Marticorena, 103 A.D.3d at 1058–1059, 962 N.Y.S.2d 425 ; Ramirez v. Begum, 35 A.D.3d 578, 578–579, 829 N.Y.S.2d 117 [2006], lv. denied 8 N.Y.3d 809, 834 N.Y.S.2d 90, 865 N.E.2d 1257 [2007] ; Facteau v. Allen, 293 A.D.2d at 847, 740 N.Y.S.2d 518 ; Yerdon v. Lyon, 259 A.D.2d 864, 866, 686 N.Y.S.2d 223 [1999], lv. denied 94 N.Y.2d 754, 700 N.Y.S.2d 427, 722 N.E.2d 507 [1999] ; but cf. Bagley v. Moffett, 107 A.D.3d 1358, 1360–1361, 969 N.Y.S.2d 184 [2013] [no homeowner's exemption where the defendants failed to establish that they used the premises as their residence after starting a bed and breakfast] ).
Here, there were two buildings on the property, a barn and a two-story "salt-box" house. There was only one room on the entire premises that was rented as a sleeping unit for the bed and breakfast, and that room was located in a renovated portion of the barn. The roof work was limited to the house. Christman has owned and lived at the premises since 2002. She testified that her full-time primary residence was in the house, and the second floor of the house was totally off limits to guests. Guests were served breakfast on the first floor of the house, where the kitchen was also located. Defendants' contention that there were also books available for guests on the first floor of the house and that Christman took business phone calls in the house does not establish the house as primarily commercial. Although the house had a mixed purpose, the roof work on the house was "directed at preserving the integrity of the structure itself and primarily benefitted [Christman's] clearly residential use of the premises" (Stone v. Altarac, 305 A.D.2d 849, 850, 761 N.Y.S.2d 109 [2003] ). Plaintiffs' assertion that Christman wanted the wood preservative added to the new roof allegedly because she was considering attempting to sell the premises does not change the result. She undisputedly resided full time in the house at the time of the accident and "the use and purpose test must be employed on the basis of the homeowner['s] intentions at the time of the injury underlying the action and not [his or her] hopes for the future" (Allen v. Fiori, 277 A.D.2d 674, 675, 716 N.Y.S.2d 414 [2000] ; see Truppi v. Busciglio, 74 A.D.3d 1624, 1625–1626, 905 N.Y.S.2d 291 [2010] ).
ORDERED that the order is affirmed, with costs.
McCARTHY, EGAN JR., LYNCH and DEVINE, JJ., concur.