SUPREME COURT: COUNTY OF CHAUTAUQUA
REX E. HARPER
vs Index #H-09991
KAREN M. AUSTIN
LEWIS & LEWIS, P.C.
(Allan M. Lewis, Esq.
of Counsel) for Plaintiff
BLOOD & DUNCANSON
Attorneys for Defendant
DECISION and ORDER
March 18, 1996
Plaintiff moves for partial summary judgment and
defendant moves to dismiss the complaint in this Labor Law
240-1 case involving plaintiff's fall from a roof of a two
family home owned by defendant.
Defendant's motion is based on the exemption in
Section 240(1) of the Labor Law relating to "owners of one
and two family dwellings".
Plaintiff says he was "getting ready to come down the
ladder" and inspecting the work of his employee, he stepped
on a loose shingle, and slipped like he slipped on a banana
His co-worker saw a quantity of dog dung on the sole
of plaintiff's shoe, on the roof, and on the ground around
the premises, but believes the fall was caused by the loose
The Court held a hearing on the motion to determine
whether either motion should be granted. Defendant
testified she purchased the property from her father in
July, 1993, with the intention of renovating the building
to use it as a home for herself and family; that she
subsequently became pregnant, could not obtain financing to
improve the building, and could not continue to pay the
mortgage, whereby she gave the property back to her father
in January, 1994.
At the time she purchased the property, there was a
tenant in one part of the duplex. The other part of the
building was not livable. Her husband took care of the
rents, paid the bills, looked into possible financing from
development funds. After learning there would be delay in
obtaining such funds, his wife decided to give the property
back to her father. In the meantime, the tenant moved out
and the property was vacant at the time of the transfer.
Plaintiff contends the exemption does not apply
because defendant was using the property for "commercial
purposes", citing VanAmerogenvDonnini, 78 NY2d 443
(1991) and Bartoov.Buell, 198 AD2d 819 (4th Dept), aff'd
___ NY2d___, February 13, 1996.
The fact that one part of the property was rented does
not in or of itself make it "commercial property"; it
depends on the site and purpose of the work. Cannonv
Putnam, 76 NY2d 644, and Stephen'svTucker 184 AD2d 828;
MendelosvKaravasidis 623 NY2d 907, 1993.
Section 240(1) of the Labor Law does not apply to
owners of one and two family dwellings who contract for but
do not direct or control the work, notwithstanding the
presence of some commercial activity on the property. See
Defendant has the burden to establish the exemption
applied in a given case. MassievCrawford, 78 NY2d 516.
On this record, the defendant has raised questions of fact
that must be determined by a jury as to the applicability
of the exemption, and, any negligence. This is so whether
plaintiff's fall was caused by his stepping on a loose
shingle left on the roof by a prior contractor; because of
dog dung on his shoe; or both.
Neither party is entitled to summary judgment where
there are questions of fact for a jury.
Plaintiff's motion for summary judgment is denied as
is defendant's motion for dismissal of the complaint.
The signing, filing, and mailing of a copy by the
Court of this Decision and Order to all Counsel shall not
constitute notice of entry required by CPLR 2220. Counsel
are not relieved from the applicable provisions of that
section respecting notice of entry.
THIS IS THE DECISION AND ORDER OF THIS COURT.
Dated: March 18, 1996
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the 18th day of March, 1996, and
filed by the Court in the office of the Clerk of the County
of Chautauqua on March 19, 1996.