The following papers numbered 1 to 14 read on this motion by defendant/third-party plaintiff Domenico Sacramone for summary judgment dismissing the complaint, contending that Sacramone cannot be held liable because he is the owner of the two-family residence plaintiff Raul Carrasco was working on when he fell and did not direct, control or supervise plaintiff's work; and on this cross motion by plaintiff for summary judgment on the issue of liability on plaintiff's Labor Law § 240(1) and § 241(6) claims for the reason that Sacramone is the owner of a three-family residence and is not entitled to the benefit of the homeowners' exemption and that Sacramone failed to provide plaintiff with any safety devices or equipment to protect him while working on the roof.

Papers

Numbered

Notice of Motion - Affidavits - Exhibits ......... 1-4

Notice of Cross Motion - Affidavits - Exhibits ... 5-10

Answering Affidavits - Exhibits .................. 11-12

Reply Affidavits ................................. 13-14

Upon the foregoing papers it is ordered that the motion and cross motion are determined as set forth herein.

On June 26, 2002, plaintiff, who was employed by the third-party defendant ABC Roofing & Waterproofing, Inc., was clearing debris from the roof of the residence owned by Sacramone when he slipped and fell off the roof and was injured. The plaintiff commenced this action to recover damages for personal injuries alleging common-law negligence and violations of Labor Law §§ 200, [*2]240, 241 and § 241(6).

Labor Law § 240(1) requires owners of buildings, who contract for, among other things, the construction, demolition, repair, alteration or painting of their buildings, to provide various equipment, including ladders and scaffolding, which are constructed, placed and operated so as to protect workers from injury. Similarly, § 241 of the Labor Law requires owners of buildings to take certain specified measures to safeguard workers from injury. Failure to comply with the statutory requirements of either of these sections subjects building owners to strict liability for damages for injuries incurred by workers as a result of such failure (see, Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513; Melo v Consolidated Edison Co. of New York, Inc., 246 AD2d 459, affd 92 NY2d 909). However, "owners of one- and two-family dwellings who contract for but do not control" the work are exempt from the strict liability imposed by both provisions of the statute. The statutory exemptions in § 240(1) and § 241 of the Labor Law are intended to make the law more nearly reflect the practical realities of the ability of small homeowners to insure against the responsibilities imposed by those provisions (see, Cannon v Putnam, 76 NY2d 644). Similar practicalities are reflected in the Court of Appeals' determination that "whether the exemption is available to an owner in a particular case turns on the site and purpose of the work" (Khela v Neiger, 85 NY2d 333; Cannon v Putnam, supra; Small v Gutleber, 299 AD2d 536).

The record in this case establishes that the residence owned by Sacramone is a three-family dwelling. Sacramone concedes, in his own deposition testimony, that at the time of the accident Sacramone resided on the ground floor, the Romano family rented the apartment on the second floor, Mrs. Gregory rented the apartment on the third floor, and that each apartment had a separate entrance. Indeed, plaintiff submits the letter of Sacramone's homeowner's insurance company denying coverage with regard to this action because the residence was not being used as a one or two family dwelling. From this record, each floor of the building must be considered a separate dwelling within the contemplation of subdivision 1 of section 240, and it cannot therefore be disputed that the building which plaintiff was working on when he fell from the roof was a three-family dwelling. Accordingly, as a matter of law, Sacramone is subject to the duties and liabilities of subdivision 1 of section 240 (see, Harmon v Sager, 106 AD2d 704).

Herein, Sacramone does not deny that he failed to provide any safety devices to plaintiff to properly protect him while he worked on the roof. Thus, Sacramone having breached the nondelegable duties imposed by Labor Law § 240(1), is subject to absolute liability for plaintiff's injuries. Similarly, by failing to provide plaintiff with the safety devices required by Industrial Code Provision § 23-1.24, Sacramone is also liable under Labor Law § 241(6).

Accordingly, defendant/third-party plaintiff's motion for summary judgment dismissing the complaint is denied. Plaintiff's cross motion for summary judgment on the issue of liability on plaintiff's Labor Law § 240(1) and § 241(6) claims is hereby granted.

Dated: April 19, 2004______________________________ [*3]

J.S.C.