| Landon v Austin |
| 2011 NY Slip Op 07337 [88 AD3d 1127] |
| October 20, 2011 |
| Appellate Division, Third Department |
| Ricky Landon, Appellant-Respondent, v Duane Austin,Respondent-Appellant. |
—[*1] Costello, Cooney & Fearon, P.L.L.C., Syracuse (Christina F. DeJoseph of counsel), forrespondent-appellant.
Egan Jr., J. 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 asingle-family residence owned by defendant. Defendant had purchased the residenceapproximately one month earlier and was in the process of renovating the structure at the time ofplaintiff's accident. On the day in question, defendant hired plaintiff to assist four otherindividuals temporarily employed by defendant's construction company to remove shingles fromthe roof and install a new vapor barrier and underlayment. As plaintiff neared the edge of theroof, 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 ofissue and discovery, plaintiff moved for partial summary judgment on his Labor Law § 240(1) claim, and defendant cross-moved for partial summary judgment dismissing, insofar as isrelevant here, plaintiff's Labor Law § 241 (6) claim. Supreme Court denied the respectivemotions, and these appeals ensued.[*2]
"Both Labor Law § 240 (1) and § 241impose nondelegable duties upon contractors, owners and their agents to comply with certainsafety practices for the protection of workers engaged in various construction-related activities"(Lieberth v Walden, 223 AD2d 978, 979 [1996] [citation omitted]; accord Jenkins vJones, 255 AD2d 805, 805 [1998]; see Kammerer v Baskewicz, 257 AD2d 811, 811[1999]). Although the Legislature has carved out an exemption for the "owners of one andtwo-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 NY2d 290, 296 [1992]; see Lenda v Breeze Concrete Corp., 73AD3d 987, 989 [2010]; Andreas vCatskill Mtn. Lodging, LLC, 60 AD3d 604, 605 [2009]; Morgan v Rosselli, 23 AD3d 356,356-357 [2005], lv denied 6 NY3d 705 [2006]). The availability of the exemption hingesupon "the site and the purpose of the work, a test which must be employed on the basis of thehomeowners' intentions at the time of the injury underlying the action" (Truppi v Busciglio, 74 AD3d1624, 1625 [2010] [internal quotation marks and citations omitted]; see Lenda v BreezeConcrete Corp., 73 AD3d at 989; Davis v Maloney, 49 AD3d 385, 386 [2008]; Allen v Fiori,277 AD2d 674, 674-675 [2000]).
Here, with regard to his Labor Law § 240 (1) claim, plaintiff submitted an excerptfrom defendant's examination before trial testimony wherein defendant, when questionedregarding his plans for the residence, indicated that he intended to "[f]ix it up and sell it." Asrenovating a residence for resale or rental plainly qualifies as work being performed for acommercial purpose (see Nudi vSchmidt, 63 AD3d 1474, 1475-1476 [2009]; Freeman v Advanced Design Prods., Inc., 27 AD3d 1112, 1112[2006]; cf. Lenda v Breeze Concrete Corp., 73 AD3d at 988-989; Morgan vRosselli, 23 AD3d at 356-357), it was incumbent upon defendant, as the party seeking theshelter of the exemption, to come forward with an affidavit or other proof clarifying or qualifyinghis plans for the property at the time of plaintiff's accident (see Lombardi v Stout, 80NY2d at 297; Nudi v Schmidt, 63 AD3d at 1476), thereby raising a question of fact inthis regard (see e.g. Lombardi v Stout, 80 NY2d at 297; Truppi v Busciglio, 74AD3d at 1625; Andreas v Catskill Mtn. Lodging, LLC, 60 AD3d at 605-606). This hefailed to do. Accordingly, and in light of the fact that the record otherwise demonstrates thatdefendant violated the statute by failing to provide plaintiff with any safety equipment and thatsuch violation was a proximate cause of plaintiff's accident (see e.g. Kindlon v Schoharie Cent. School Dist., 66 AD3d 1200,1202-1203 [2009]), plaintiff is entitled to partial summary judgment as to his Labor Law §240 (1) claim.[FN*][*3]
Turning to defendant's cross motion seeking dismissal ofplaintiff's Labor Law § 241 (6) claim, to the extent that plaintiff's papers may be read asalleging a violation of 12 NYCRR 23-1.7 (b) (1), we agree that this regulation is inapplicable tothe facts of this case, as the edge of a roof does not qualify as a "hazardous opening" within themeaning of the cited provision (cf. Popev Safety & Quality Plus, Inc., 74 AD3d 1040, 1041 [2010], lv dismissed 15NY3d 862 [2010]; Garlow v ChappaquaCent. School Dist., 38 AD3d 712, 714 [2007]). Plaintiff also relies, however, upon 12NYCRR 23-1.24 (a) (1) (i), which requires that roofing brackets be used "whenever work is to beperformed on any roof having a slope steeper than one in four inches unless crawling boards orapproved safety belts are used." This regulation is sufficiently specific to support a Labor Law§ 241 (6) claim (see Tucker v Edgewater Constr. Co., 281 AD2d 865, 866 [2001]),and the record before us reveals a factual dispute as to the precise slope of the roof from whichplaintiff fell (compare D'Acunti v New York City School Constr. Auth., 300 AD2d 107,107 [2002]). Hence, Supreme Court properly denied defendant's cross motion for partialsummary judgment as to this particular cause of action.
Finally, the belated citation to the relevant regulation—made for the first time in anaffidavit submitted by counsel in response to defendant's cross motion—is not fatal toplaintiff's Labor Law § 241 (6) claim (see White v Farash Corp., 224 AD2d 978,979 [1996]; Pasquarello v Citicorp/Quotron, 251 AD2d 477, 477 [1998]; cf. Latino vNolan & Taylor-Howe Funeral Home, 300 AD2d 631, 633-634 [2002]), particularly giventhat it raises no new factual allegations or theories of liability and results in no discernibleprejudice to defendant (see Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d231, 233 [2000]). The parties' remaining contentions, to the extent not specifically addressed,have been examined and found to be lacking in merit.
Spain, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as denied plaintiff's motion for partial summaryjudgment as to his Labor Law § 240 (1) claim; motion granted; and, as so modified,affirmed.
Footnote *: Defendant's assertion that hewas deprived of an opportunity to rebut plaintiff's proof because he was unaware that plaintiffwas contending that the homeowner's exemption was inapplicable in the first instance lacksmerit. Although the parties' proof on this point primarily focused upon the "direction and control"aspect of the statutory exemption and did not extensively address the threshold issue of whetherdefendant's purportedly commercial use of the property precluded application of the exemptionaltogether, defendant's entitlement to the exemption clearly was in issue and, as noted previously,as the party seeking to invoke its protection, defendant bore the burden of establishing, amongother things, that the roofing work performed by plaintiff was not being undertaken for a purelycommercial purpose.