STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

____________________________________

REX E. HARPER

Plaintiff,

vs Index #H-09991

KAREN M. AUSTIN

Defendant.

____________________________________

LEWIS & LEWIS, P.C.

(Allan M. Lewis, Esq.

of Counsel) for Plaintiff

BLOOD & DUNCANSON

Attorneys for Defendant

DECISION and ORDER

March 18, 1996

GERACE, J.

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

peel.

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

shingle.

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

Bartoov.Buell, (supra).

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

____________________________

JOSEPH GERACE

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.