| Truppi v Busciglio |
| 2010 NY Slip Op 05322 [74 AD3d 1624] |
| June 17, 2010 |
| Appellate Division, Third Department |
| Michael Truppi, Respondent, v Leonardo Busciglio,Appellant. |
—[*1] Mainetti, Mainetti & O'Connor, P.C., Kingston (Joseph E. O'Connor of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Cahill, J.), entered April 23, 2009 inUlster County, which partially denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff was injured when his ladder slipped out from under him while he was working onthe roof of a house owned by defendant. He commenced this action against defendant alleging,among other things, violations of Labor Law § 240 (1) and § 241 (6). Whendefendant moved for summary judgment dismissing the complaint, Supreme Court foundquestions of fact as to the applicability of the dwelling-owner exemption and denied the motionas to these two claims. Defendant appeals, and we affirm.
The dwelling-owner exemption precludes liability against "owners of one and two-familydwellings who contract for but do not direct or control the work" (Labor Law § 240 [1];§ 241 [6]; see Bartoo v Buell, 87 NY2d 362, 367 [1996]), but it is not available toan owner who uses or intends to use a dwelling only for commercial purposes (see Lombardiv Stout, 80 NY2d 290, 296-297 [1992]). Its application turns on the site and the purpose ofthe work (see Bartoo v Buell, 87 NY2d at 368; Cannon v Putnam, 76 NY2d 644,650 [1990]; Stone v Altarac, 305 AD2d 849, 849-850 [2003]), a test which "must beemployed on the basis of the homeowners' intentions at the time of the injury underlying theaction and not their hopes for the future" (Allen [*2]vFiori, 277 AD2d 674, 675 [2000]).
Here, there is conflicting evidence as to whether the work was being done to maintain thedwelling's use as defendant's home or for rental to others. Defendant submitted his own affidavitand the deposition testimony of himself, his girlfriend and his parents describing his past andplanned use of the dwelling as his home. This evidence was sufficient to meet his burden toshow that the renovations were being made to maintain the dwelling as his residence. Inopposition, plaintiff submitted the affidavits of several persons, including himself, his employerand a police officer, who stated that defendant had told them that he resided in his parents' homenearby, that he intended to remain in their home after the renovations were completed and thathe planned to rent the dwelling to others. Plaintiff and his employer also averred that they hadnever seen any evidence that defendant or his girlfriend resided in the dwelling. These affidavitscontain relevant personal observations and their reports of defendant's statements are competentevidence admissible as party admissions (see Bruenn v Pawlowski, 292 AD2d 856, 857[2002]; Ede v Ede, 193 AD2d 940, 941 [1993]; Adams v Agrawal, 187 AD2d886, 887 [1992]; Prince, Richardson on Evidence §§ 8-201, 8-203 [Farrell 11th ed]).Thus, Supreme Court correctly found that they raise questions of fact as to the use of thedwelling during the renovations, the purpose of the work and defendant's intended use followingrenovation (see Mandelos v Karavasidis, 86 NY2d 767, 769 [1995]; Lombardi vStout, 80 NY2d at 297; Ali v Olisa, 194 AD2d 578, 579 [1993]).
Spain, J.P., Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.