| Cansdale v Conn |
| 2009 NY Slip Op 04578 [63 AD3d 1622] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| Reggie Cansdale, Respondent, v Polly Conn,Appellant. |
—[*1] Cellino & Barnes, P.C., Rochester (Richard P. Amico of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (John J. Ark, J.), entered April15, 2008 in a personal injury action. The order, insofar as appealed from, denied defendant'smotion for summary judgment dismissing the complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained when the remaining wall of a building on defendant'sresidential property fell on him. The building had previously collapsed under the weight of snowand ice, and plaintiff was hired by defendant's husband, the owner of Conn's Construction, toassist with the demolition of the remainder of the building. We conclude that Supreme Courterred in denying defendant's motion for summary judgment dismissing the complaint. Withrespect to the Labor Law § 240 (1) and § 241 (6) causes of action, we agree withdefendant that she is exempt from liability pursuant to the homeowners' exemption set forththerein inasmuch as she is the owner of a single family dwelling who did not direct or controlplaintiff's work. It is undisputed that defendant and her husband permitted individuals to storebelongings in the building, some of whom compensated them. Defendant met her burden on themotion with respect to those Labor Law sections, however, by establishing that the building wasused primarily for the storage of personal belongings, and plaintiff failed to raise an issue of factwhether the building was used "exclusively for commercial purposes" (Bartoo v Buell,87 NY2d 362, 368 [1996]). Where, as here, the work "directly relates to the residential use of thehome, even if the work also serves a commercial purpose, [the] owner is shielded by thehomeowner exemption from the absolute liability of Labor Law §§ 240 and 241"(id.).
We further conclude with respect to the Labor Law § 200 claim and the common-lawnegligence cause of action that defendant met her burden on the motion by establishing as amatter of law that any negligence on her part was not a proximate cause of plaintiff's injuries,and plaintiff failed to raise an issue of fact sufficient to defeat that part of the motion (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562). Present—Scudder,P.J., Fahey, Peradotto, Carni and Green, JJ.