Opinion
120963.
Decided October 30, 2006.
Michael J. Skoney, Esq., Lewis Lewis, P.C., Buffalo, New York, Attorneys for Plaintiff.
Stephanie Williams Torres, Esq., Hiscock Barclay, LLP, Buffalo, New York, Attorneys for Defendant.
James E. Mercante, Esq., Stewart Greenspan, Esq., Rubin, Fiorella Friedman, LLP, New York, New York, Attorneys for Defendant.
By Notice of Motion, the Plaintiff Daniel Zahoransky (hereinafter, "Zahoransky"), seeks Partial Summary Judgment on the issue of liability against Defendant Charles Lissow (hereinafter, "Lissow") on the grounds that a violation of Section 240 (1) of the New York State Labor Law has been established as a matter of law. In response, Defendant Lissow has cross moved for Summary Judgment dismissing the Plaintiff's Complaint in its entirety.
On May 22, 2002, Plaintiff Zahoransky who was working as a union mechanic for Cummins Northeast was performing repairs on Defendant Lissow's yacht. The motor yacht was a 40 foot long and 14 foot wide vessel that had been undergoing extensive repairs while in dry-dock at the Shumway Marina located in Rochester, New York. The vessel was set on five 12 inch by 12 inch blocks underneath the keel with six steel supports placed around the outside of the boat. At the time of the incident, the Plaintiff was descending down a six foot closed wooden A-frame stepladder that was leaning up against the swim platform of the boat when it started to shift/tip causing him to miss a step and fall to the ground.
Summary Judgment is a drastic remedy which should not be granted if there is a possible relevant factual issue (Siegel, NY Prac § 278, at 438-439 [3d ed]). It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hospital, 68 NY2d 320). Once the moving party makes this prima facie showing, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of triable issues of material fact ( Zuckerman v. City of New York, 49 NY2d 557; Wilson v. Woodward Builders, Inc., 140 AD2d 957 [4th Dept 1988]).
It is well established that the duty imposed by Labor Law § 240 and § 241 is nondelegable and that an owner or contractor who breaches that duty is absolutely liable for injuries sustained by any worker regardless of whether it has actually exercised supervision or control over the work ( Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; O'Leary v. Raymond Le Chase, Inc., 125 AD2d 991 [4th Dept 1986]). However, the law expressly exempts owners of one and two-family dwellings who contract for but do not direct or control the work from liability ( Van Amerogen v. Donnini, 78 NY2d 880).
The Defendant asserts that the yacht served as a second home where his family would regularly sleep overnight and take vacations on and therefore, he is entitled to the benefit of the homeowner exemption under the Labor Law statute. In ascertaining whether a defendant has satisfied his burden of establishing the statutory homeowner exception, the physical characteristics of a building and/or its suitability for one or two-family habitation are factors to be considered but not determinative ( Lombardi v. Stout, 80 NY2d 290; Sweeney v. Sanvidge, 271 AD2d 733 [3rd Dept 2000]). The law is clear that a court must look to the use to which a defendant has put the property ( Lombardi v. Stout, supra; Freeman v. Advanced Design Prods., Inc., 2006 NY Slip Op 1957 [4th Dept 2006]). Further, a vessel undergoing repairs in dry-dock constitutes a structure within the meaning of the Labor Law ( Aguilar v. Henry Marine Serv., 12 AD3d 542 [2nd Dept 2004]; Chaffee v. Erie R. Co., 68 AD 578 [4th Dept 1902]).
This appears to be a case of first impression with respect to whether a yacht constitutes a "dwelling" within the meaning of the Labor Law statute. A "dwelling" is defined as "any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings (NY Mult Dwell Law § 4 [4]). Another definition of the word "dwelling" is "the house or other structure in which a person or persons live; a residence; abode; habitation; the apartment or building, or group of buildings, occupied by a family as a place of residence. Structure used as place of habitation." (Black's Law Dictionary 454 [5th ed 1979]). Further, the term "dwelling" is not intended to be limited to a house or primary residence nor does it lose its character as such merely because it is temporarily unoccupied ( Heerema v. Kenul, 288 AD2d 185 [2nd Dept 2001]; Suydan v. Kaden, 272 AD2d 832 [3rd Dept 2000]; Farrell v. Okeic, 266 AD2d 892 [4th Dept 1999]; People v. Melendez, 148 AD2d 964 [4th Dept 1989]). Significantly, the Defendant's motor yacht has two staterooms located in the interior cabin with the capacity to sleep up to six people as well as a living room and dining area. There is also a kitchen (galley) with appliances as well as two bathrooms. In addition, the yacht was equipped with central air conditioning and a heating system along with a fresh water system to replenish water during extended voyages. Clearly, the Defendant's motor yacht had all the amenities of a small home that was regularly used for the entertainment and enjoyment of his family. In fact, the Defendant's Affidavit shows that he deducts the mortgage interest associated with the loan on the yacht for income tax purposes on the basis that it constitutes a second residence. In response, the Plaintiff claims that the vessel must constitute a "private dwelling" and/or that the Defendant's use of the vessel as an occasional, temporary sleeping quarters fails to meet the definition of a "one family or two family dwelling" ( see, NY Mult Dwell Law § 4 [6]). The Court finds such claims to be without merit. Since such a restrictive interpretation would defeat the intent and purpose of the exemption under the Labor Law and be against public policy.
Notwithstanding, it is undisputed that the Defendant did not direct, control or supervise the work resulting in Plaintiff's injury and therefore, there could not be any recovery under Labor Law § 200 and/or common law negligence theories ( Lombardi v. Stout, supra). Moreover, because the activity that produced the injury did not occur during the construction, demolition or excavation of a building or structure there can be no claim under Labor Law § 241 (6) ( Nagel v. D R Realty Corp., 99 NY2d 98; Henneberry v. City of Buffalo, 206 AD2d 882 [4th Dept 1997]).
Accordingly, the Plaintiff's Motion for Summary Judgment on the issue of liability against the Defendant is denied. The Court grants the Defendant's Cross Motion for Summary Judgment dismissing the Plaintiff's Complaint in its entirety. Having reached this conclusion, it is unnecessary to address the remaining issues/arguments herein.
This Decision shall constitute the Order of the Court.