Upon the foregoing papers, defendants' motion and plaintiffs' cross-motion for summary judgment are consolidated for purposes of this decision. For the reasons set forth herein, defendants' motion is granted and plaintiffs' motion is denied.

This is an action for personal injuries sustained by plaintiffs Guillermo Castro and Ramiro Fares arising out of an accident which occurred while plaintiffs were engaged in painting the exterior of defendants' premises, when the scaffold on which they were working tipped over and plaintiffs and the scaffold fell to the ground below. Defendants Demetrios Mamaes and Petros Mamaes are the some of defendant Am?? Mamaes. Both Demetrios and Petros have been deposed. Defendants state that Amanda Mamaes is presently in a nursing home and is incapable of testifying due to her medical condition.

Plaintiffs have asserted causes of action under Labor Law ��240(1), 241(6) and 200 and common law negligence. Defendants move this Court seeking dismissal of plaintiffs' claims against them [*2]on the grounds that the subject premises was a single family home and, therefore, exempt from the Labor Law statute since they did not direct or control the work being performed. Plaintiffs agree that their causes of action against defendants based on common law negligence and Labor Law �200 should be dismissed. However, plaintiffs argue that the causes of action premised upon Labor Law ��240(1) and 241(6) should not be dismissed and summary judgment on liability should be granted under �240(1) against defendant Demetrios Mamaes and Amanda Mamaes.

The undisputed facts are as follows: The location where the accident occurred, 294 Devoe Avenue, Yonkers, New York, is a single family home in which Amanda Mamaes retained a Life Estate in, but conveyed to her two sons, Demetrios and Petros Mamaes years before this incident occurred. The premises in question has a Certificate of Occupancy as a one family dwelling. A copy of the deed for the premises dated October 30, 2001 indicates that Amanda Mamaes is the surviving tenant by the entirety of Nicholas Mamaes, and that Amanda Mamaes residing at 294 Devoe Avenue, Yonkers, New York transferred title to the premises to Petros Mamaes and Demetrios Mamaes as joint tenants.

In May, 2005, Petros Mamaes hired Mamaes Contracting Corporation ("Mamaes Contracting") to paint the exterior of the house. Mamaes Contracting is owned by Mr. Mamaes' cousin and uncle. At the time of the accident, plaintiffs were employees of Mamaes Contracting and were performing work at the house of behalf of their employer. Both plaintiffs were responsible for setting up the scaffolding at the subject house. Both plaintiffs went up the scaffold and then put a ladder up intending to paint the house. The only person who told plaintiffs how to do work on any of the days he worked at the subject house was an individual by the name of Anthony who worked for Mamaes Contracting. Plaintiffs were the ones who moved the scaffolding from one part of the house to the other. At the time of the incident. Petros Mamaes resided alone at the premises. Before that, his mother and brother resided with him until 2002 when his mother moved into a nursing home and his brother got married and moved to Queens. Petros Mamaes paid the bills for the house and Demetrios Mamaes did not receive any rent from his brother for living in the house. OSHA conducted an investigation regarding this accident and cited and fined plaintiff's employer Mamaes Contracting for "serious" violations.

The court's function on this motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). The movant must come forward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a matter of law. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 8, (1960); Sillman v. Twentieth Century Fox Film Corp., supra . The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of [*3]a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus, if evidence is equally balanced, the movant has failed to meet its burden. 300 East 34th Street Co. v. Habeeb, 683 NY2d 175 (1st Dept. 1997).

An owner of a premises has a non-delegable duty under the Labor Law to provide a safe work environment to workers. However, an implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition. Russin v. Louis N. Picciano & Son, 54 NY2d 311 (1981) citing Reynolds v Brady & Co., 38 AD2d 733 (2d Dept. 1972). Moreover, the work giving rise to these duties may be delegated to a third person or party. Russin 54 at 317. (Although ��240 and 241 make these duties nondelegable, the duties themselves may in fact be delegated. When the work giving rise to these duties has been delegated to a third-party, that third-party then obtains the concomitant authority to supervise and control that work and becomes a statutory "agent" of the owner or general contractor.) Thus, the authority to supervise and control the work operates to transform the subcontractor into a statutory agent of the owner or construction manager. Kelly v. Diesel Construction Division of Karl A. Morse, Inc., 35 NY2d 1 (1974).

Specifically, Labor Law �240(1) provides in pertinent pat that: "[a]ll contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect... for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to person so employed."

Defendants argue that this statute absolves them from any liability by virtue of the fact that the structure was a one family dwelling and argue that they did not exercise direction and control in the work. The exception to Labor Law �240(1) is limited to "owners of one and two-family dwellings". However, plaintiffs contend that defendants are not entitled to the exemption as they maintained the property for its investment income. Plaintiffs argue that the timing of Amanda Mamaes' transfer of an ownership interest in the property to her two sons was solely for the purpose of preventing her major asset from being forcibly sold and used to finance her stay in the nursing home. Plaintiffs further contend that this is a clear attempt to evade the law by permitting defendants to retain ownership of the property as investment income.

The Court of Appeals has held that the exemption should not be expanded to include homeowners who use one or two-family premises entirely and solely for commercial purposes. Van Amerogen v. Donnini, 78 NY2d 880 (1991). In Von Amerogen, the defendants were owners of a four-bedroom house they used solely for rental to college students and the Court found that [*4]they were not entitled to exemption from strict liability provisions of workplace safety statute applicable to "owners of one and two-family dwellings" holding that the premises was a commercial enterprise, rather than a one or two-family house. Id. As the Court of Appeals observed, the intent of the Labor Law is to afford protection to workers by placing responsibility for job safety on the owner. "To this end, doubts concerning the applicability of the exception for one- and two-family homeowners 'should be resolved in favor of the general provision rather than the exception' ". Garcia v. Martin, 285 AD2d 391 (1st Dept. 2001) quoting Van Amerogen, 78 NY2d at 882. See also, Bartoo v. Buell, 87 NY2d 362 ("In keeping with our pragmatic interpretation of the homeowner exemption, we have declined to apply the exemption where a building, though structurally a one-family dwelling, was used by its owner exclusively for commercial purposes (citation omitted). The exemption, we held, is not designed to protect homeowners 'who use their one or tow-family premises entirely and solely for commercial purposes and who hardly are lacking in sophistication or business acumen such that they would fail to recognize the necessity to insure against the strict liability imposed by the statute' " (citations omitted)).

As the parties claiming the benefit of the exception, defendants have the burden of showing that it applies here. Lombardi v. Stout, 80 NY2d 290 (1992). Defendants have met their burden. Plaintiffs have not offered any proof to raise an issue of fact as to whether the subject house was being used for commercial purposes. The argument that defendant Amanda Mamaes transferred title of the house to her sens to "evade the law" it mere speculation and surmise. The admissible proof offered by defendants shows that this was a single family home in every sense. It was a family home where Amanda Mamaes and Demetrios Mamaes resided until they moved for different reasons. Thereafter, Petros Mamaes continued to live there and it was his home. He paid all of the bills with respect to the upkeep of the property. None of the defendants paid or collected any rents with respect to the property. In addition, plaintiffs failed to offer any proof that defendants directed any of the work being performed at the house. Indeed, plaintiffs never mentioned any of the defendants other than to say that they knew that "Mr. Mamaes" lived at the house and that they were directed by "Anthony" of Mamaes Contracting on how to perform the work.

Accordingly, defendants' motion for summary judgment is granted and plaintiffs' cross-motion for summary judgment is denied. The action is dismissed.

This constitutes the decision and order of this Court.

Dated: May 9, 2007

Hon. Sallie Manzanet-Daniels