Plaintiff Juan Sanchez, As Administrator of the Estate of Jose Amado Cruz ("plaintiff"), commenced this action against defendants/third-party plaintiffs Pedro Marticorena and Edward Van Wagner ("defendants") alleging causes of action based on common-law negligence and Labor Law §§§ 200, 240 and 241 (6) after Jose Amado Cortez ("Mr. Cortez") fell from a roof and died from his injuries while working as a roofer on a single-family home located at 387 Albany Avenue, Kingston, New York on September 8, 2009. The residence is owned by the defendants. At the time of the injury, Mr. Cortez was employed by third-party defendant Eric Rose d/b/a Eric Rose Construction ("Rose").

Defendants now move for summary judgment dismissing plaintiff's complaint on the ground that they are entitled to the one-family dwelling exemption to the strict liability provisions of the Labor Law (Labor Law §§ 240 [1] and 241 [6]) or, in the alternative, granting summary judgment on their cross claim against Rose for common law indemnification. Rose opposes defendants' motion to the extent that they seek common law indemnification. Plaintiff opposes the motion.

As a preliminary matter, the Court notes that plaintiff in his opposition papers has withdrawn all causes of action except for those under Labor Law §§ 240 (1) and 241 (6). Plaintiff has additionally withdrawn any claim that the defendants directed or controlled the construction work on the day of incident. Therefore, the defendants' application to dismiss the causes of action sounding in common law negligence and Labor Law § 200, as well as any claim that the defendants directed or controlled the work, are rendered moot and will not be addressed by this Court.

Movants bears the initial burden to establish a prima facie showing of entitlement to judgment dismissing the causes of action as a matter of law, and to tender sufficient evidence to eliminate any material issues of fact from the case (Zuckerman v City of NY, 49 NY2d 557, 560). Once the party seeking summary judgment has made a prima facie showing of entitlement to [*2]judgment as a matter of law, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or demonstrate an acceptable excuse for its failure to do so (Zuckerman v City of New York, 49 NY2d 557, 562). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562).

Labor Law § 240 (1) imposes absolute liability for any breach thereof which is the proximate cause of an injury (Rocovich v Consolidated Edison Co., 78 NY2d 509, 512; Bland v Manocherian, 66 NY2d 452, 459; Zimmer v Chemung County Perjorming Arts, Inc., 65 NY2d 513, 524, rearg denied 65 NY2d 1054). This is an absolute liability statute, imposing a nondelegable duty upon property owners and general contractors for covered elevation-related injuries to workers at construction or demolition sites, independent of actual supervision or control over the work site (Gordon v Eastern Ry., Supply, Inc., 82 NY2d 555, 560; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500; Zimmer v Chemung County Perjorming Arts, Inc., 65 NY2d 513, 521, rearg denied 65 NY2d 1054).

Unlike Labor Law § 240, Labor Law § 241 does not impose absolute liability on owners and general contractors. Labor Law § 241 (6) imposes a nondelegable, ultimate responsibility for safety practices at building construction jobs on the owner and general contractor to the extent of requiring them "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation, or demolition work is being performed (Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 348).

Labor Law §§ 240 and 241 (6), however, provide an exemption from liability for owners of one and two-family homes "who contract for but do not direct or control the work." The Legislature determined that the strict liability provisions of the statutes in question should not apply to owners of one and two family homes who are not in a position to know about, or provide for the responsibilities of absolute liability (Cannon v Putnam, 76 NY2d 644, 649). The Legislature determined that it was " unrealistic to expect the owner of a one or two family dwelling to realize, understand and insure against the responsibility sections 240 and 241 now place upon him'" (Cannon v Putnam, 76 NY2d 644, 649-650). The statute, however, does not specify under what circumstances a one-or two-family dwelling with mixed commercial/residential usage qualifies under the exemption and the Courts have decided this issue on a case-by-case basis. "At one end of the spectrum, where it is clear that the property is used solely as a one- or two-family dwelling, and the homeowner does not direct or control the work, the exemption will apply * * * At the other end of the spectrum. where a one- or two-family dwelling is used entirely and solely for commercial purposes', the owners cannot benefit from the dwelling exception * * * In determining whether to apply the dwelling exemption to those situations which fall somewhere between these two extremes, the courts have applied a site and purpose of the work' test" (Putnam v Karaco Industries Corp., 253 AD2d 457, 458, quoting Van Amerogen v Donnini, 78 NY2d 880, 882 and Cannon v Putnam, 76 NY2d 644, 650). The Court of Appeals has "avoided an overly rigid interpretation of the homeowner exemption" and has employed a "flexible" standard (Bartoo v Buell, 87 NY2d 362, 367-368). In Bartoo v Buell, 87 NY2d 362, the Court of Appeals noted that "a residence that houses a business may nevertheless retain its character as a home" and thus still qualify for the homeowner's exemption (Bartoo v Buell, 87 NY2d 362, 368). The Court concluded that "when an owner of a one- or two-family dwelling contracts for work that directly relates to the residential use of the home, [*3]even if the work also serves a commercial purpose, the owner is shielded by the homeowner exemption from the absolute liability of Labor Law §§ 240 and 241" (Bartoo v Buell, 87 NY2d 362, 368). Accordingly, "the existence of both residential and commercial uses on a property does not automatically disqualify a dwelling owner from invoking the exemption" (Cannon v Putnam, 76 NY2d 644, 650). An owner's use of their property is considered "commercial" in nature, and as such the exemption does not apply, when the property is held out as a business asset such that it is used by the owner in furtherance of an enterprise whose purpose is derivation of financial and business gain (Pigott v Church of the Holy Infancy, 179 AD2d 161).

In support of their motion, the defendants submit, among other things, the pleadings, the transcript of the examinations before trial of Mr. Marticorena and Mr. Van Wagner, as well as their affidavits and the affirmation of their attorney. It is undisputed that defendants' home is structurally a single-family residence. It has a living room, a dining room, a kitchen and a bathroom on the first floor. On the second floor, the home has three bedrooms and a bathroom. The home also has an attic/bonus room on the third floor. It is undisputed that Mr. Marticorena and Mr. Van Wagner jointly own the property and reside in the home on a full-time basis.

Mr. Marticorena avers that in 2004, he and Mr. Van Wagner became certified operators of a "family care home," a program of the New York State Office for People with Developmental Disabilities ("OPWDD")^[FN1] . Mr. Marticorena avers that the family care program provides community-based residential housing in certified private homes for functioning disabled individuals who are unable to live independently. Mr. Marticorena avers that since 2004, he and Mr. Van Wagner have provided a family care home for four mentally disabled adults who live with them on a full time basis as "family members." He avers that the residents share two bedrooms on the second floor of the home. Mr. Marticornea avers that as family care operators, he and Mr. Van Wagner help to manage the residents' day to day activities, including preparing their meals, taking them on recreational activities, and taking them to their doctor appointments. He avers that other than providing a home to the residents and assisting them with their day to day activities, he and Mr. Van Wagner do not provide any services to the residents in terms of rehabilitation, training, or employment. Mr. Marticorena avers that providers of a family care program receive reimbursement for each individual who lives in their home, including room and board; and reimbursement for mileage for medical appointments and medication for the individuals. Mr. Marticorena states that he and Mr. Van Wagner did not make any renovations to their home for the purpose of using it as a "family care home." Mr. Marticorena avers that at the time of Mr. Cortez's fall, he and Mr. Van Wagner hired Rose to replace the roof on their home because the roof was "old" and they started experiencing water issues on the third floor.

The defendants annex a copy of the OPWDD-issued Family Care Operating Certificate in effect at the time of the accident. The defendants argue that pursuant to Mental Hygiene Law § 41.34 (f), which states, in pertinent part, "a community residence established pursuant to [Mental [*4]Hygiene Law § 41.34] and family care homes shall be deemed a family unit, for the purposes of local laws and ordinances," the subject home should be declared a single family dwelling as a matter of law.

Here, the defendants have demonstrated their entitlement to judgment as a matter of law with respect to the homeowner's exemption under Labor Law § 240 (1) and § 241 (6). The defendants have established that the home is a single-family dwelling used solely as a residence for the defendants and the four disabled individuals who live together and function as a family unit (see, Mental Hygiene Law § 41.34 [f]), and that the home is not an income-producing property, as any commercial benefit the defendants obtain from New York State is ancillary to the residential purpose of the home (see, Castellanos v United Cerebral Palsy Assn. of Greater, 77 AD3d 879 ^[FN2] ; Rivera v Revzin, 163 AD2d 896; Bartoo v Buell, 87 NY2d 362; Hosler v Northern Eagle Beverages, Inc., 790 NYS2d 341; Uddin v Three Bros. Constr. Corp., 33 AD3d 691; Muniz v Church of Our Lady of Mt. Carmel, 238 AD2d 101; Hook v Quattrociocchi, 231 AD2d 882; Vliet v Alweis, 227 AD2d 853).

The defendants having met their initial burden to establish their entitlement to judgment as a matter of law on these causes of action, it now falls to plaintiff to demonstrate that the law does not support summary judgment and/or assemble and present facts sufficient to require a trial of any issue of fact to defeat the motion (Zuckerman v City of NY, 49 NY2d 557, 562).

Plaintiff has failed to raise a triable issue of fact. Notwithstanding plaintiff's protestation that there exist triable issues of fact precluding summary judgment, the admissible proof offered by defendants shows that the location where the accident took place is a single family home in every sense where the defendants and four disabled individuals live on a full-time basis as a family unit. While plaintiff argues that the defendants operate the family care program as a "business" and that the "stipend" that the defendants receive from New York State is akin to rent, the admissible evidence demonstrates that neither of the defendants collected any rents with respect to the property and any arguments to the contrary are merely conclusory.

Thus, the defendants' motion for summary judgment, dismissing the Labor Law §§ 240 and 241(6) claims against them, is granted.

That portion of defendants' motion for summary judgment on its cross-claim for common-law indemnification as against Rose is denied as moot.

Accordingly, defendants' motion for summary judgment is granted without costs and the complaint is dismissed in its entirety.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

SO ORDERED.

ENTER.

December 16, 2011