| Battease v Harrington |
| 2011 NY Slip Op 08707 [90 AD3d 1124] |
| December 1, 2011 |
| Appellate Division, Third Department |
| Bruce Battease, Appellant, v Donald Harrington, Defendant, andJames Butler et al., Respondents. |
—[*1] John M. Silvestri, Chestertown, for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Muller, J.), entered August 16,2010 in Essex County, which, among other things, granted a cross motion by defendants JamesButler and Marilyn Butler for summary judgment dismissing the complaint against them.
Plaintiff was employed by defendant Donald Harrington when he fell from a scaffold whileworking on a barn located on property owned by defendants James Butler and Marilyn Butler.Plaintiff commenced this action against Harrington and the Butlers, alleging that they failed toprovide him with a safe work place in violation of Labor Law §§ 200, 240 (1) and§ 241 (6). Plaintiff moved for partial summary judgment on his Labor Law § 240 (1)claim and, in response, the Butlers cross-moved for summary judgment dismissing the complaintagainst them on the ground that they were entitled to the homeowner exemption and, therefore,could not be held liable for plaintiff's injuries under the Labor Law. Supreme Court agreed withthe Butlers, granted their cross motion for summary judgment and dismissed the complaintagainst them. Plaintiff now appeals.
The homeowner exemption provides that "owners of one and two-family dwellings who[*2]contract for but do not direct or control the work" will not beliable under Labor Law § 240 (1) or § 241 (6) for injuries incurred by workers on thework site (Truppi v Busciglio, 74AD3d 1624, 1625 [2010] [internal quotation marks and citation omitted]; see Lombardiv Stout, 80 NY2d 290, 297 [1992]; Landon v Austin, 88 AD3d 1127, 1128 [2011]; Crossett v Wing Farm, Inc., 79 AD3d1334, 1335 [2010]). In our view, on the facts presented, the Butlers have not established as amatter of law that they are entitled to this exemption, and Supreme Court's order granting theircross motion for summary judgment must be reversed in this respect (see Truppi vBusciglio, 74 AD3d at 1625).
The Butlers would be entitled to the homeowner exemption if they can establish that the "siteand purpose" of the work being performed by plaintiff when he was injured was for theirresidence and not for a commercial enterprise they operated on the premises (see Bartoo vBuell, 87 NY2d 362, 368 [1996]; Allen v Fiori, 277 AD2d 674, 674 [2000]). Here,plaintiff fell from a scaffold while he was putting siding on a barn that the Butlers used to storetheir personal belongings and was located on their property near their residence. Pens wereattached to the barn that served as kennels for dogs that they bred and raised in connection withan enterprise they operated on the property entitled "Helderberg Husky Kennels." When he fell,plaintiff was installing siding to an area of the roof that extended from the barn which, accordingto James Butler, was designed to provide cover from the elements for the dogs that were housedin the kennels.
Supreme Court concluded that the work that plaintiff was performing on the barn when hewas injured was done in connection with the Butlers' dog breeding enterprise and not as part ofany effort to enhance their residential property. However, the court found that the homeownerexemption nevertheless applied because the Butlers had proven as a matter of law that theirbreeding and selling of these dogs was a hobby and not a commercial enterprise they operated ontheir property. We disagree. While the Butlers testified that all of the dogs on their property,including the 15 housed in the kennels, were pets, in our view, it is simply not possible on thisrecord to conclude as a matter of law that these dogs were bred and sold as a hobby and not aspart of a commercial venture that the Butlers operated out of the barn located on the premises.The fact that they created a separate business entity under which they bred and sold thesedogs—and annually filed tax returns in which they offset income generated by thisenterprise with expenses incurred in its daily operation—simply reinforces our conclusionthat a question of fact exists that requires the denial of their cross motion for summary judgmentbased on the application of the homeowner exemption (see Truppi v Busciglio, 74 AD3dat 1625; see also Andreas v CatskillMtn. Lodging, LLC, 60 AD3d 604, 605-606 [2009]; Davis v Maloney, 49 AD3d 385, 386 [2008]).
Rose, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted the cross motion of defendantsJames Butler and Marilyn Butler for summary judgment dismissing the complaint against them;motion denied; and, as so modified, affirmed.