| Umanzor v Charles Hofer Painting & Wallpapering, Inc. |
| 2008 NY Slip Op 01333 [48 AD3d 552] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Erick R. Umanzor, Appellant, v Charles Hofer Painting &Wallpapering, Inc., Defendant, and Charles Hofer et al., Respondents. (And Third-PartyActions.) |
—[*1] Curtis, Vasile, Devine & McElhenny, Merrick, N.Y. (Brian W. McElhenny of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Weber, J.), dated January19, 2006, as granted the motion of the defendants Charles Hofer and Wendy Lopez for summaryjudgment dismissing the complaint insofar as asserted against them and denied that branch of hiscross motion which was for summary judgment against those defendants pursuant to Labor Law§ 240 (1).
Ordered that the order is affirmed insofar as appealed from, with costs.
Labor Law § 240 (1) "imposes a nondelegable duty and absolute liability upon ownersor contractors for failing to provide safety devices necessary for protection to workers subject tothe risks inherent in elevated work sites who sustain injuries proximately caused by that failure"(Jock v Fien, 80 NY2d 965, 967-968 [1992]). Owners of one-or two-family dwellings,however, are exempt from liability under Labor Law §§ 240 and 241 unless theydirected or controlled the work being performed (see Bartoo v Buell, 87 NY2d 362, 367[1996]; Cannon v Putnam, 76 NY2d 644 [1990]). "The exception was enacted to protectthose people who, lacking business sophistication, would not know or anticipate the need toobtain insurance to cover them against the absolute liability" (Milan v Goldman, 254AD2d 263 [1998]).[*2]
In the case at bar, the defendants Charles Hofer andWendy Lopez (hereinafter the defendants) demonstrated, prima facie, that they were entitled tothe benefit of the exemption as a matter of law (see Roach v Hernandez, 38 AD3d 743 [2007]; Ramirez v Begum, 35 AD3d 578[2006]; Ortiz v Cormier, 10 AD3d389 [2004]; Moran v Janowski, 276 AD2d 605 [2000]). In opposition, the plaintifffailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).Contrary to the plaintiff's contention, the use of a portion of the defendants' residence forcommercial purposes did not automatically cause them to lose the protection of the exemption(see Ramirez v Begum, 35 AD3d578 [2006]; Small v Gutleber, 299 AD2d 536 [2002]), since the presence of theoffice did not detract from the building's primary use as a residence, and any purportedcommercial activity was incidental thereto (see Putnam v Karaco Indus. Corp., 253 AD2d457 [1998]; cf. Krukowski v Steffensen, 194 AD2d 179 [1993]). Rivera, J.P., Santucci,Covello and Balkin, JJ., concur.