| Sanchez v Marticorena |
| 2013 NY Slip Op 01305 [103 AD3d 1057] |
| February 28, 2013 |
| Appellate Division, Third Department |
| —Juan Sanchez, as Administrator of the Estate ofJose Amado Cortez, Deceased, Appellant, v Pedro Marticorena et al., Defendants andThird-Party Plaintiffs-Respondents. Eric Rose, Doing Business as Eric RoseConstruction, Third-Party Defendant-Respondent. |
—[*1] Rivkin Radler LLP, Uniondale (Harris J. Zakarin of counsel), for defendants andthird-party plaintiffs-respondents. Stockton, Barker & Mead, LLP, Albany (Robert S. Stockton of counsel), forthird-party defendant-respondent.
Stein, J. Appeal from an order of the Supreme Court (Melkonian, J.), enteredDecember 23, 2011 in Ulster County, which granted defendants' motion for summaryjudgment dismissing the complaint.[*2]
In September 2009, while working on a roof atdefendants' home, decedent tragically fell to his death. Plaintiff, the administrator ofdecedent's estate, subsequently commenced this action against defendants alleging,among other things, violations of Labor Law §§ 240 (1) and 241 (6).Defendants then commenced a third-party action against decedent's employer, Eric Rose,seeking indemnification or contribution. After discovery was conducted, defendantsmoved for, among other things, summary judgment dismissing the complaint claiming, asrelevant here, that the homeowner's exemption found in Labor Law §§ 240(1) and 241 (6) applied. Supreme Court granted defendants' motion and dismissed thecomplaint, prompting this appeal by plaintiff.
We affirm. The homeowner's exemption precludes liability against "owners of oneand two-family dwellings who contract for but do not direct or control the work" (LaborLaw §§ 240 [1]; 241 [6]; see Bartoo v Buell, 87 NY2d 362, 367[1996]; Van Hoesen vDolen, 94 AD3d 1264, 1266 [2012], lv denied 19 NY3d 809 [2012]).Here, plaintiff does not dispute that defendants did not control the roof work, but claimsthat the property was used by defendants as a purely commercial enterprise. In thisregard, we note that, "when an owner of a one- or two-family dwelling contracts forwork that directly relates to the residential use of the home, even if the work also serves acommercial purpose, that owner is shielded by the homeowner exemption" (Bartoo vBuell, 87 NY2d at 368; seeTruppi v Busciglio, 74 AD3d 1624, 1625 [2010]). When, as here, there are dualuses of a home, the availability of the exemption depends upon the site and purpose ofthe work performed (see Bartoo v Buell, 87 NY2d at 368; Stone vAltarac, 305 AD2d 849, 849-850 [2003]).
As the movants for summary judgment, defendants bore the initial burden ofestablishing, as a matter of law, that the homeowner's exemption applied (see Landon v Austin, 88 AD3d1127, 1128 [2011]). In support of the motion, defendants submitted, among otherthings, their affidavits and deposition testimony, which established that they purchasedthe home in 2000 and have resided there since that time. The property is zonedresidential and is unquestionably residential in nature—the first floor consists of aliving room, kitchen, dining room and bathroom and the second floor has three bedroomsand another bathroom. There is also a room in the attic that is used by one of thedefendants as a bedroom. The roof work was undertaken after water leaked into the atticwhere one of the defendants slept, and defendants paid for the roof work with theirpersonal funds (compare Van Hoesen v Dolen, 94 AD3d at 1266). Based on theforegoing, defendants met their initial burden of establishing that the homeowner'sexemption applied, shifting the burden to plaintiff to demonstrate a triable issue of fact(see CPLR 3212 [b]; Cansdale v Conn, 63 AD3d 1622, 1623 [2009]).
In response to defendants' motion, plaintiff points to the fact that defendants derive astipend from allowing individuals to reside in their home and claims that the roof workbenefitted a commercial enterprise, as a result of which the homeowner's exemption isnot applicable. While the material facts are not in dispute, we disagree with plaintiff'slegal conclusion. In 2004, defendants became certified to operate a family care homeunder a program with the Office for People with Developmental Disabilities. Under thisprogram, defendants have provided a residence to four individuals with disabilities in afamily setting (see Mental Hygiene Law § 41.34) and receive a monthlystipend for the services they provide to each of the residents. However, defendants haveresided in the home since they purchased it, did not make any renovations to theresidence for the purpose of becoming family care providers and do not operate as acorporation, partnership or limited liability company. While defendants have receivedstipends for the care provided to the individuals in question and have used their [*3]residence to provide this care, plaintiff has failed to presentany facts which would demonstrate that defendants' receipt of these stipends transformedthe residence into a purely commercial enterprise so as to render the homeowner'sexemption inapplicable (see Bartoo v Buell, 87 NY2d at 368; Castellanos v United CerebralPalsy Assn. of Greater Suffolk, Inc., 77 AD3d 879, 880 [2010], lvdenied 16 NY3d 704 [2011]; Crowningshield v Kim, 19 AD3d 975, 976-977 [2005],lv denied 5 NY3d 711 [2005]; Rivera v Revzin, 163 AD2d 896, 897[1990], lv denied 79 NY2d 760 [1992]). Nor has plaintiff raised facts that wouldnegate a showing by defendants that the site and purpose of the roof work was directlyrelated to their residence. Accordingly, we are of the view that no issues of fact exist thatwould prevent a determination, as a matter of law, that the homeowner's exemptionapplied (see Bartoo v Buell, 87 NY2d at 368-369; Allen v Fiori, 277AD2d 674, 674 [2000]; Stone v Altarac, 305 AD2d at 849-850; cf. Battease v Harrington, 90AD3d 1124, 1125 [2011]).
Moreover, the homeowner's exemption "was enacted to protect those people who,lacking business sophistication, would not know or anticipate the need to obtaininsurance to cover them against the absolute liability imposed by" the Labor Law(Lombardi v Stout, 80 NY2d 290, 296 [1992]; see Hook vQuattrociocchi, 231 AD2d 882, 883 [1996]). Defendants here met that description,and becoming licensed family care providers for four developmentally disabledindividuals did not transform them into sophisticated business persons so as to render thehomeowner's exemption inapplicable. Accordingly, plaintiff has failed to raise any triablequestions of fact, and Supreme Court properly granted defendants' motion for summaryjudgment dismissing the complaint.
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withone bill of costs.