Truppi v. Busciglio
Decision Date | 17 June 2010 |
Citation | 74 A.D.3d 1624,905 N.Y.S.2d 291 |
Parties | Michael TRUPPI, Respondent, v. Leonardo BUSCIGLIO, Appellant. |
Court | New York Supreme Court — Appellate Division |
74 A.D.3d 1624
Michael TRUPPI, Respondent,
v.
Leonardo BUSCIGLIO, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
June 17, 2010.
McCabe & Mack, L.L.P., Poughkeepsie (Kimberly Hunt Lee of counsel), for appellant.
Mainetti, Mainetti & O'Connor, P.C., Kingston (Joseph E. O'Connor of counsel), for respondent.
Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.
ROSE, J.
Appeal from an order of the Supreme Court (Cahill, J.), entered April 23, 2009 in Ulster County, which partially denied defendant's motion for summary judgment dismissing the complaint.
Plaintiff was injured when his ladder slipped out from under
The dwelling-owner exemption precludes liability against "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law § 240[1]; § 241[6]; see Bartoo v. Buell, 87 N.Y.2d 362, 367, 639 N.Y.S.2d 778, 662 N.E.2d 1068 [1996] ), but it is not available to an owner who uses or intends to use a dwelling only for commercial purposes ( see Lombardi v. Stout, 80 N.Y.2d 290, 296-297, 590 N.Y.S.2d 55, 604 N.E.2d 117 [1992] ). Its application turns on the site and the purpose of the work ( see Bartoo v. Buell, 87 N.Y.2d at 368, 639 N.Y.S.2d 778, 662 N.E.2d 1068; Cannon v. Putnam, 76 N.Y.2d 644, 650, 563 N.Y.S.2d 16, 564 N.E.2d 626 [1990]; Stone v. Altarac, 305 A.D.2d 849, 849-850, 761 N.Y.S.2d 109 [2003] ), a test which "must be employed on the basis of the homeowners' intentions at the time of the injury underlying the action and not their hopes for the future" ( Allen v. Fiori, 277 A.D.2d 674, 675, 716 N.Y.S.2d 414 [2000] ).
Here, there is conflicting evidence as to whether the work was being done to maintain the dwelling's use as defendant's home or for rental to others. Defendant submitted his own affidavit and the deposition testimony of himself, his girlfriend and his parents describing his past and planned use of the dwelling as his home. This evidence was sufficient to meet his burden to...
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...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......
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