Plaintiffs move for summary judgment against Defendants, 81 SPRING REALTY, LLC, 81 SPRING REALTY CORP., HORIZON REALTY & DEVELOPMENT CORPORATION, and KEITH JACOBSON, premised upon Plaintiffs' Labor Law 240(1) cause of action.

Defendant, KEITH JACOBSON, also moves for summary judgment, to dismiss Plaintiffs' Complaint, and any cross claims, asserted as against him.^[FN1]

The Parties:

This is an action to recover damages for personal injuries sustained by NDUE SELORA, who was employed by The Interiors Group, when, on the morning of November 23, 2001, while he was working in a Condominium apartment, Unit No. 3, located at 81 Spring Street, in New York City, a ladder on which he was standing collapsed.

Defendant, 81 SPRING REALTY, LLC, admits that, on the date of the accident, it was the sole owner of the Condominium apartment, as well as the subject building and real property where the accident occurred, located at 81 [*2]Spring Street a/k/a 76 Crosby Street, in the SoHo area of Manhattan.^[FN2] The Bayard House is the name of the condominium association; and there are a total of 6 condominium apartments in the subject building.^[FN3]

Defendant, 81 SPRING REALTY CORP., is the entity which purchased, and renovated the subject building, converting it from a manufacturing facility into "live/work" condominiums for artists. ^[FN4]

Defendant, HORIZON REALTY & DEVELOPMENT CORPORATION, is engaged in the business of "residential sales ... and residential rental". It sold condominium apartments at 81 Spring Street, and at other projects (for example, at 520 West 19th Street, in New York City); and also rented apartments (for example, at 200 East 82nd Street, in New York City).^[FN5]

Defendant KEITH JACOBSON had entered into several agreements, in November 2000, (one year prior to the accident), with Defendant, 81 SPRING REALTY, including a Contract of Sale ^[FN6] which provided that KEITH JACOBSON had the option to purchase the Condominium apartment which is the subject matter of this action.^[FN7]

KEITH JACOBSON also entered into a contract with The Interiors Group, LLC, on August 21, 2001, whereby The Interiors Group would build-out the interior raw space of the apartment, in accordance with KEITH JACOBSON's [*3]Architect's plans for his Loft.^[FN8] Pursuant to their contract, KEITH JACOBSON paid more than $740,000 to The Interiors Group for the construction and installation of a kitchen, three bedrooms, three bathrooms, a large living room, dining area, laundry and storage room.^[FN9] KEITH JACOBSON was permitted to have work performed in his Unit prior to the time that he acquired title. The purchaser of each apartment was responsible for building out the raw apartment space: "it was understood that he [KEITH] was going to be buying that apartment [Unit 3]. So he built out that apartment, same as everybody else."^[FN10]

On April 3, 2002, the sale was consummated and KEITH JACOBSON became the owner of the Condominium apartment, designated as Unit No. 3.

The Incident:

On November 23, 2001, Plaintiff, NDUE SELORA, had climbed up an A-shaped eight-foot metal ladder — to plaster a hole in the ceiling. When both his feet were on the third step from the top, the ladder collapsed, "the ladder just fell apart, opened widely"; and he fell down to the floor. He then observed that the ladder was broken and twisted; "the two pieces of the ladder were twisted, one above the other". The ladder's side rails were also twisted. (NDUE SELORA EBT, p. 31-52, 143-44, 164-65, 181).

PLAINTIFFS' MOTION

—Labor Law 240(1):Labor Law § 240(1), "Scaffolding and other devices for use of employees",

provides as follows:

All 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, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices [*4]which shall be so constructed, placed and operated as to give proper protection to a person so employed.

It is well-established that: "Labor Law § 240 (1) imposes liability upon an owner or contractor who has failed to provide any safety devices for workers at a building worksite, and ... an owner or contractor under these circumstances is absolutely liable in damages for injuries sustained by such worker." Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 519 (1985). The Legislature's intent, when it implemented Labor Law 240(1), was to protect "workers by placing "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (1969 NY Legis Ann, at 407), instead of on workers, who "are scarcely in a position to protect themselves from accident"." Zimmer, supra , 65 NY2d at 520.

"Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker "proper protection", absolute liability is "unavoidable" under section 240 (1) ... regardless of the injured worker's own negligence in contributing to his accident." Bland v. Manocherian, 66 NY2d 452, 459 (1985).

In Bland, supra , the Court held that "the absence of ... protective devices resulted in a denial of proper safety protection to claimant while he was working on the scaffold and, in turn, that this absence was a proximate cause of claimant's fall to the ground below ..., claimant's own negligence being inapplicable under section 240 (1), the [Defendants are] properly held absolutely liable for the full extent of the damages proximately caused by the absence of guardrails or other safety device to prevent a fall from the scaffold." [emphasis added] Bland v. Manocherian, supra , 66 NY2d at 462.

"In cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, we have ... continued to aid plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection. See Panek v County of Albany (99 NY2d 452, 458, 788 NE2d 616, 758 NYS2d 267 [2003] [summary judgment appropriate for the plaintiff where it was uncontroverted that a ladder collapsed beneath him, causing the fall]); Styer v Walter Vita Constr. (174 AD2d 662, 571 NYS2d 524 [2d Dept 1991]); Olson v Pyramid Crossgates Co. (291 AD2d 706, 738 NYS2d 430 [3d Dept 2002]). Once the plaintiff makes a prima facie showing the burden then shifts to the defendant, who [*5]may defeat plaintiff's motion for summary judgment only if there is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident. If defendant's assertions in response fail to raise a fact question as to these issues, the plaintiff must be accorded summary judgment (see Klein v City of New York (89 NY2d 833, 835, 675 NE2d 458, 652 NYS2d 723 [1996]). On the other hand, defendant may be granted summary judgment if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by plaintiff's conduct." [emphasis added]

Where, as here, a plaintiff's uncontested allegation was that a ladder failed to provide him with proper protection because it ""gave way" or collapsed beneath him, causing him to fall", defendants failed to create an issue of fact regarding proximate causation, and a plaintiff was granted summary judgment in his favor. Panek v. County of Albany, 99 NY2d 452, 458 (2003).

Accordingly, in the case at bar, Plaintiff SELORA is entitled to the presumption that the ladder "was not good enough to afford him proper protection"^[FN11]; and consequently, Plaintiffs' Motion is granted to the extent that Defendant, 81 SPRING REALTY, LLC, the owner of the Condominium apartment where Plaintiff was injured, including the building and land upon which the apartment was situated, at the relevant time, is absolutely liable under Labor Law 240(1). However, that part of Plaintiffs' Motion which seeks summary judgment against Defendants, HORIZON REALTY & DEVELOPMENT CORPORATION, and 81 SPRING REALTY CORP., is denied, since the evidence presented does not establish, as a matter of law, that these entities were owners who would be absolutely liable pursuant to Labor Law 240(1).

MOTIONS REGARDING DEFENDANT KEITH JACOBSON

Plaintiffs move for summary judgment against Defendant KEITH JACOBSON; and Defendant KEITH JACOBSON, by separate motion, moves for summary judgment in his favor.

Defendant KEITH JACOBSON argues that he is an owner of a one-family [*6]dwelling who would be entitled to the exemption from absolute liability found in Labor Law 240(1).^[FN12] Whether either party is entitled to summary judgment involves a resolution of KEITH JACOBSON's contention that he was an "owner", and examination of the "site and purpose" of the work, within the meaning of the applicable law, as is more fully discussed infra.

—KEITH JACOBSON was an "Owner"

Defendant KEITH JACOBSON had entered into a contract, to purchase the subject Condominium, which permitted him to "build-out" the interior raw space of the apartment. On the date of the accident, his engagement in such activity, as a "contract vendee", provides the basis for this Court to hold that KEITH JACOBSON is an owner within the meaning of Labor Law 240(1). See Lombardi v. Stout, 80 NY2d 290, 293 (1992).

In Lombardi, supra , the defendant Stout had contracted to purchase the property where a plaintiff was injured when he fell from a ladder while cutting down a tree; and Stout was deemed an owner who could be found liable pursuant to Labor Law 240(1). Lombardi v. Stout, supra , 80 NY2d at 293.

Our courts have repeatedly held that the term "owners" under New York's Labor Law has "not been limited to the titleholder. The term has been held to encompass a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his benefit [citations omitted]." Copertino v. Ward, 100 AD2d 565, 567 (2d Dept. 1984).

In another case, the Court held that a "defendant Resnick was an "owner" within the meaning of this provision, even though legal title had not yet passed to him. As a contract vendee, he had a property interest, already had access to the premises, and was the party who had contracted to have the roof repair work performed [citations omitted]." DeFreece v. Penny Bag, Inc., 137 AD2d 744, 745 (2d Dept. 1988). See Jurgens v. Whiteface Resort on Lake Placid L.P., 293 AD2d 924, 926 (3d Dept. 2002).

Similarly, although legal title had not yet passed to KEITH JACOBSON on the date of the accident, and did not actually pass until the closing which occurred in April 2002, KEITH JACOBSON also had the requisite proprietary interest, and [*7]access to the premises. Thus, KEITH JACOBSON is deemed an owner, having fulfilled the role of owner by contracting to have the work performed for his benefit.

—"Site and Purpose"

The Court of Appeals established that "whether the exemption is available to an owner in a particular case turns on the site and purpose of the work." [emphasis added] Cannon v. Putnam, 76 NY2d 644, 651 (1990).

Thus, in determining whether an owner is entitled to the so-called homeowner's exemption, our courts examine the "site" to determine its suitability for use as the owner's residence dwelling; and whether the "purpose" of the construction was to create, remodel, or enhance the space for use by the owner as his own residence or for a commercial purpose. Khela v. Neiger, 85 NY2d 333, 338 (1995).

In another leading case, the Court of Appeals held that the owner of a house, which is used as income-producing rental property, i.e., a commercial purpose, was deemed not to fall within the class of persons whom the Legislature sought to exempt from the strict liability provisions of Labor Law §§ 240. Van Amerogen v. Donnini, 78 NY2d 880 (1991). The Court stated: "the premises here is a commercial enterprise, a rooming house", and so (quoting Cannon, supra ), found that: "these defendants are quite unlike the homeowner who hires someone to paint his own living room ceiling who should be accorded the statutory exemption from strict liability". Van Amerogen v. Donnini, supra , 78 NY2d at 885.

In the case at bar, the subject "site", to wit, 81 Spring Street, New York, NY, is located in a distinctive Manhattan neighborhood, South of Houston Street, known as "SoHo". KEITH JACOBSON initially invested 2.5 million dollars for the premises ^[FN13], and also paid the cost of renovations which included the $740,000 payment to The Interior Group plus a "couple" of hundred thousand dollars more for extra work. (KEITH JACOBSON EBT, p. 56-64, 103-4).

Most importantly, the Condominium Unit could legally be occupied only as [*8]"joint living-work quarters for artists" ^[FN14], as set forth in the "Purchase Agreement" between KEITH JACOBSON and 81 Spring Realty LLC, at paragraph 44, "Legal Occupancy of Unit". The operative language provides as follows:

A. Purchaser acknowledges [that he] is aware that the Unit may be lawfully occupied only as "Joint living-work quarters for artists" and that pursuant to applicable local laws, at least one resident of the Unit must be certified by the New York City Department of Cultural Affairs in order to qualify for occupancy of joint living-work-quarters in the zoning district in which the Building is located.

B. ...Purchaser shall be solely responsible for obtaining any certification or approval lawfully required as a condition to occupancy of the Unit prior to occupancy.

C. Purchaser further acknowledges and agrees that the temporary or permanent certificate of occupancy for the Building ... will list the uses permitted pursuant to law. Occupancy of the Unit that fails to comply with the Certificate of Occupancy may constitute a violation of the New York City Zoning Resolution and the Certificate of Occupancy and may constitute the basis for denial or revocation of the Certificate of Occupancy. Compliance with all laws, rules and regulations concerning the lawful use and occupancy of any Unit will be the sole responsibility of Purchaser. ... All of the provisions of this Paragraph 44 shall [*9]survive closing. [emphasis added]

(See Purchase Agreement, dated April 3, 2002, Exhibit "5", Plaintiffs' Opp/Reply, dated April 1, 2008).

The "Certificate of Occupancy" for the premises, which is located in "Zoning District" "M1-5B", also establishes that the only permissible use and occupancy for condominium units, including the subject Unit 3, (located on the third floor), was for "joint living quarters for artists" and that "at lease 1 occupant of each joint living work quarters must be certified artists per Z.R. 12-10." Further, the "Certificate of Occupancy" also requires that "no changes of use or occupancy shall be made unless a new amended certificate of occupancy is obtained." (See Certificate of Occupancy, Exhibit "8", Plaintiffs' Opp/Reply, dated April 1, 2008).

A "certificate of occupancy" is evidence which demonstrates whether a defendant falls within the exemption. Where, for example, a "certificate of occupancy" for a house provided that it was a two-family dwelling, in a recent case, the First Department held that defendants had demonstrated their entitlement to judgment as a matter of law. Thompson v. Geniesse, 2009 NY Slip. Op. 3952, 1 (1st Dept. May 19, 2009).

KEITH JACOBSON admits that he is not an artist, and was not so certified by the New York City Department of Cultural Affairs.^[FN15] Multiple Dwelling Law § 276, "Definition of an artist", provides that: "the word "artist" means a person who is regularly engaged in the fine arts, such as painting and sculpture or in the performing or creative arts, including choreography and filmmaking, or in the composition of music on a professional basis, and is so certified by the city department of cultural affairs and/or state council on the arts." Accordingly, this "site" was not suitable for use as KEITH JACOBSON's residence dwelling. KEITH JACOBSON attempts to bolster his contentions (both in opposition to Plaintiffs' motion and in support of his own motion) with the conclusory statements he made when he was deposed: that he supposedly resided at the subject premises, from about April 2002 to September 2003.^[FN16] However, throughout his deposition, he gave confusing and contradictory testimony regarding the dates he supposedly resided in his various homes in Manhattan and [*10]Long Island, and the dates he was away traveling. For example, he vaguely mentioned that he was traveling on "sabbatical" from January 2003 to May 2005 — which encompasses some of the time period when he was supposedly living in the Condominium. (KEITH JACOBSON EBT, p. 69-71). Moreover, he provides no documentation whatsoever to substantiate his allegations that he resided in the Condominium. For example, he does not produce a copy of a driver's license, W-2 Form, tax return, or voter's registration; or any bills, such as gas, electric, telephone, cable television, internet service, or insurance, to establish his residence at the Condominium Unit for the relevant period.

Noteworthy, during that same period, in 2002-2003, KEITH JACOBSON rented the Condominium for a commercial purpose: "I rented it out for a location shoot, high-end properties sought after for photo shoots, for models to shoot magazines, spreads and things like that."^[FN17]

However, even assuming, arguendo, that it is true that KEITH JACOBSON temporarily occupied the premises, such is not dispositive, in light of the Certificate of Occupancy which evidences the purpose for which the site should be used. See Thompson, supra , 2009 NY Slip. Op. 3952, 1 (1st Dept. May 19, 2009).

Where residential use is restricted by a certificate of occupancy, Courts will not allow a party, by sham, or otherwise, to circumvent the legal requirement that an apartment be used only as joint living and work quarters for artists. Saul v. 476 Broadway Realty Corp., 290 AD2d 254, 255 (1st Dept. 2002).^[FN18]

The evidence unequivocally demonstrates that the sole "purpose" of this enterprise was to convert what was a manufacturing building into condominium [*11]units that should be rented, or sold, only as quarters for artists.^[FN19] Thus, KEITH JACOBSON cannot avail himself of the homeowner's exemption provided in Labor Law §240 (1). See Stejskal v. Simons, 3 NY3d 628, 629 (2004).

Although KEITH JACOBSON also, in conclusory fashion, alleges that he intended to make the subject premises his home ^[FN20], this is inconsistent with his admissions, and actions, which include that, from about October 2003 to July 2004, he rented the Condominium Unit to Nicole Kidman ^[FN21] for $40,000 per month, for about ten months, totaling $400,000. Thereafter, in about August 2004, KEITH JACOBSON rented the Condominium to Harvey Weinstein ^[FN22] for several months in the amount of $50,000 per month, and ultimately sold it to Harvey Weinstein in March 2005, for almost 7 million dollars. ^[FN23]

Regardless of his purported intentions, since KEITH JACOBSON could not legally occupy the Condominium as his own residence pursuant to the applicable zoning laws, he is not entitled to the protections, under the Labor Law, afforded to a homeowner who uses his one or two-family dwelling as his residence. See Wolinsky v. Kee Yip Realty Corp., 2 NY3d 487 (2004). ^[FN24] [*12]

The inescapable conclusion to be drawn from the evidence is that KEITH JACOBSON's investment was for a commercial enterprise from which KEITH JACOBSON intended to profit, and actually profited, millions of dollars. KEITH JACOBSON protected himself against risks of the deal by obtaining liability insurance, and by entering into complex agreements with the Seller. Thus, even more so than the owner in Van Amerogen, supra , — who merely rented out her house to college students — this Defendant "is quite unlike the homeowner who hires someone to paint his own living room ceiling." Van Amerogen v. Donnini, supra , 78 NY2d at 885.

Under the circumstances presented in the instant matter, Plaintiffs demonstrated their entitlement to summary judgment in their favor; and Defendant KEITH JACOBSON has offered no cogent evidence in opposition.

Therefore, summary judgment on liability under Labor Law § 240(1), against KEITH JACOBSON, is properly granted since he is an owner who is not entitled to the benefit of the homeowner's exemption set forth in the statute. See Freeman v. Advanced Design Prods., Inc., 27 AD3d 1112 (4th Dept. 2006).^[FN25] See Bland v. Manocherian, supra , 66 NY2d 452.

In sum, Plaintiffs are granted summary judgment in their favor, pursuant to Labor Law 240(1), against only Defendants, 81 SPRING REALTY, LLC, and KEITH JACOBSON. The remainder of Plaintiffs' Motion, and KEITH JACOBSON's Motion, are denied.

This constitutes the decision and order of this Court.

Dated: June 5, 2009

_____________________________

George D. Salerno, JSC