| Davis v Maloney |
| 2008 NY Slip Op 02216 [49 AD3d 385] |
| March 13, 2008 |
| Appellate Division, First Department |
| Terry Davis, Respondent, v Frances M. Maloney,Appellant. |
—[*1] Edelman & Edelman, P.C., New York City (David M. Schuller of counsel), forrespondent.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered October 2, 2007,which, insofar as appealed from, denied defendant's motion for summary judgment dismissingplaintiff's causes of action under Labor Law § 240 (1) and § 241 (6), and grantedplaintiff's cross motion for partial summary judgment on the issue of liability under Labor Law§ 240 (1) and dismissing defendant's defense of the homeowner exemption, unanimouslymodified, on the law, to deny plaintiff's cross motion, and otherwise affirmed, without costs.
Plaintiff sustained personal injuries while working on a barn owned by defendant and locatedon a parcel adjacent to that on which defendant's one-family dwelling is located. Conflictingevidence as to whether the two parcels were separated by a fence and whether the barn wasaccessible only from a neighbor's road raise an issue of fact, improperly resolved by the motioncourt in plaintiff's favor, as to whether the barn should be considered part of the dwelling forpurposes of the homeowner's exemption (see Mandelos v Karavasidis, 86 NY2d 767, 769[1995]). Another issue of fact, as to whether defendant intended to use the barn for commercialpurposes (see id.), is raised by a tax certificate she signed certifying that she was exemptfrom paying sales taxes on the materials and labor used to construct the barn because it was to beused predominantly in farm production or in a commercial horse boarding operation. While thecertificate does not estop defendant from denying that she intended to use the barn commercially(see Vick v Albert, 47 AD3d482 [2008]), it does constitute some evidence of such intention (see Baje Realty Corp. v Cutler, 32AD3d 307, 310 [2006]), justifying the denial of her motion for summary judgment based onthe homeowner exemption (see Lombardi v Stout, 80 NY2d 290, 297 [1992]; Morgan v Rosselli, 9 AD3d 417[2004]). It does not avail defendant to assert that she and her husband ultimately decided not tofollow through with the business of growing and selling hay. "[T]he use and purpose test must beemployed on the basis of the homeowners' intentions at the time of the injury underlying theaction . . . ." (Allen v Fiori, 277 AD2d 674, 675 [2000]; compare Crowningshield v Kim, 19AD3d 975 [2005], lv denied 5 NY3d 711 [2005] [uncontradicted that barn,undergoing roof replacement at time of accident, was used for mixed commercial and residentialpurposes, entitling defendants to homeowner exemption [*2]eventhough their tax return depreciated the roof from which plaintiff slipped and fell], citing, interalia, Bartoo v Buell, 87 NY2d 362, 368 [1996].) Concur—Saxe, J.P., Gonzalez,Buckley and Acosta, JJ.