Landon v. Austin

• Decision Date: 20 October 2011
• Citation: 2011 N.Y. Slip Op. 07337,931 N.Y.S.2d 424,88 A.D.3d 1127
• Parties: Ricky LANDON, Appellant–Respondent,v.Duane AUSTIN, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1127
931 N.Y.S.2d 424
2011 N.Y. Slip Op. 07337

Ricky LANDON, Appellant–Respondent,
v.
Duane AUSTIN, Respondent–Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 20, 2011.

[931 N.Y.S.2d 426]

Schlather, Stumbar, Parks & Salk, Ithaca (David M. Parks of counsel), for appellant-respondent.Costello, Cooney & Fearon, P.L.L.C., Syracuse (Christina F. DeJoseph of counsel), for respondent-appellant.Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.EGAN JR., J.

[88 A.D.3d 1127] Cross appeals from an order of the Supreme Court (Mulvey, J.), entered July 20, 2010 in Tompkins County, which denied the parties' motions for partial summary judgment.

In October 2008, plaintiff sustained injuries to his right leg after falling from the roof of a single-family residence owned by defendant. Defendant had purchased the residence approximately one month earlier and was in the process of renovating the structure at the time of plaintiff's accident. On the day in question, defendant hired plaintiff to assist four other individuals temporarily employed by defendant's construction company to remove shingles from the roof and install a new vapor barrier and underlayment. As plaintiff neared the edge of the roof, the vapor barrier stuck to his shoe causing him to lose his balance and fall.

Plaintiff thereafter commenced this action against defendant alleging, among other things, violations of Labor Law §§ 200, 240(1) and § 241(6). Following joinder of issue and discovery, plaintiff moved for partial summary judgment on his Labor Law § 240(1) claim, and defendant cross-moved for partial summary [88 A.D.3d 1128] judgment dismissing, insofar as is relevant here, plaintiff's Labor Law § 241(6) claim. Supreme Court denied the respective motions, and these appeals ensued.

“Both Labor Law § 240(1) and § 241 impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities” ( Lieberth v. Walden, 223 A.D.2d 978, 979, 636 N.Y.S.2d 885 [1996] [citation omitted]; accord Jenkins v. Jones, 255 A.D.2d 805, 805, 680 N.Y.S.2d 307 [1998]; see Kammerer v. Baskewicz, 257 A.D.2d 811, 811, 684 N.Y.S.2d 30 [1999] ). Although the Legislature has carved out an exemption for the “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law § 240[1]; § 241[6] ), this exemption does not apply to owners who use their residences “purely for commercial purposes” ( Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117 [1992]; see Lenda v. Breeze Concrete Corp., 73 A.D.3d 987, 989, 903 N.Y.S.2d 417 [2010]; Andreas v. Catskill Mtn. Lodging, LLC, 60 A.D.3d 604, 605, 875 N.Y.S.2d 141 [2009]; Morgan v. Rosselli, 23 A.D.3d 356, 356–357, 804 N.Y.S.2d 763 [2005], lv. denied 6 N.Y.3d 705, 812 N.Y.S.2d 34, 845 N.E.2d 466 [2006] ). The availability of the exemption hinges upon “the site and the purpose of the work, a test which must be employed on the basis of the homeowners' intentions at the time of the injury underlying the action” ( Truppi v. Busciglio, 74 A.D.3d 1624, 1625, 905 N.Y.S.2d 291 [2010] [internal quotation marks and citations omitted]; see Lenda v. Breeze Concrete Corp., 73 A.D.3d at 989, 903 N.Y.S.2d 417;

[931 N.Y.S.2d 427]

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