| Andreas v Catskill Mtn. Lodging, LLC |
| 2009 NY Slip Op 01597 [60 AD3d 604] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 2—Christos Andreas, Appellant, v CatskillMountain Lodging, LLC, et al., Respondents, et al., Defendants. |
—[*1] Williamson, Clune & Stevens, Ithaca, N.Y. (John H. Hanrahan III of counsel), for [*2]respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, (1) from so much of an order of the Supreme Court, Queens County (Elliot, J.), enteredSeptember 14, 2007, as denied that branch of his motion which was for summary judgment onthe issue of liability on so much of the complaint as alleged a violation of Labor Law §240 (1) insofar as asserted against the defendants Catskill Mountain Lodging, LLC, and YakovBletnitsky, and (2) from so much of an order of the same court entered February 27, 2008, as,upon reargument, adhered to the original determination.
Ordered that the appeal from the order entered September 14, 2007 is dismissed, as thatorder was superseded by the order entered February 27, 2008, made upon reargument; and it isfurther,
Ordered that the order entered February 27, 2008 is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the respondents.
The plaintiff was injured during the course of his employment, when he fell from a scaffoldthat collapsed while he was using a nail gun in the construction of a one-family home. Theplaintiff commenced this action against, among others, Catskill Mountain Lodging, LLC, andYakov Bletnitsky (hereinafter together the respondents), to recover damages for negligence andfor alleged violations of Labor Law §§ 200, 240 (1) and § 241 (6), and movedfor summary judgment on the issue of liability against the respondents. The Supreme Courtdenied that branch of the motion which was for summary judgment on the issue of liability on somuch of the complaint as alleged a violation of Labor Law § 240 (1) insofar as assertedagainst the respondents. Upon reargument, the Supreme Court adhered to its originaldetermination, stating with respect to the question of whether the respondents were entitled tothe homeowner's exemption under the statute, that "[a] triable issue of material fact was found toexist given the defendant Bletnitksky's testimony that he was ready to build a house for himselfand that he had not talked about selling the subject house."
Labor Law § 240 imposes a nondelegable duty upon contractors and owners toprovide scaffolding and other adequate and reasonable protection to persons employed in [*3]construction, excavation, or demolition. However, the owners ofone- and two-family dwellings who do not direct or control the work are statutorily exempt fromliability (see Piedra v Matos, 40AD3d 610, 611 [2007]; Roach vHernandez, 38 AD3d 743, 744 [2007]; Ramirez v Begum, 35 AD3d 578 [2006]; Small v Gutleber,299 AD2d 536, 537 [2002]). The homeowner's exemption does not apply, however, where "theaim of the construction [is] to further a commercial enterprise" such as constructing a new homefor sale (see Morgan v Rosselli, 9AD3d 417, 419 [2004]).
The plaintiff made a prima facie showing of his entitlement to judgment as a matter of lawon the issue of liability on so much of the complaint as alleged a violation of Labor Law §240 (1) insofar as asserted against the respondents by establishing that they were not entitled tothe homeowner's exemption. The plaintiff submitted the affidavit of Jeff Prince, who attested thathe was acting as the respondents' real estate broker with respect to the marketing and selling ofthe subject property during "various stages of construction," including those which "extendedafter the date" of the plaintiff's accident in 2005. In opposition, the respondents submitted, interalia, the deposition testimony of Bletnitsky, who testified that he was having the house built forhimself and that he did not have discussions with Prince with respect to selling the house untilsometime in 2006. Accordingly, the Supreme Court properly determined that there were triableissues of fact as to whether the aim of the construction was to further a commercial enterprise(see Morgan v Rosselli, 9 AD3d417, 418-419 [2004]; Van Amerogen v Donnini, 78 NY2d 880, 882-883 [1991]),such that the single-family homeowner's exemption would not apply, or whether that exemptionshould apply.
To the extent the plaintiff raises issues regarding that branch of his motion which was forsummary judgment on the issue of liability on so much of the complaint as was to recoverdamages for negligence and alleged violations of Labor Law §§ 200 and 241 (6)insofar as asserted against the respondents, such issues are not properly before us as that branchof the motion remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543[1979]).
The plaintiff's remaining contention regarding alleged Industrial Code violations raised in hisreply papers in connection with that branch of his motion addressed by the Supreme Court is notproperly before this Court (see Zezula vCity of New York, 19 AD3d 409, 411 [2005]). Skelos, J.P., Angiolillo, Balkin andLeventhal, JJ., concur.