Domiguez v. Barsalin, LLC

2018 NY Slip Op 1147

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 2018
• Docket: 5747N 161738/14
• Status: Published

Opinion

Domiguez v Barsalin, LLC (2018 NY Slip Op 01147)

Domiguez v Barsalin, LLC

2018 NY Slip Op 01147

Decided on February 15, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 15, 2018
Friedman, J.P., Tom, Mazzarelli, Singh, JJ.

5747N 161738/14

[*1] Ramon Domiguez, Plaintiff-Appellant,

v

Barsalin, LLC, et al., Defendants-Respondents. [And a Third-Party Action]

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Kaufman, Dolowich & Voluck, LLP, Woodbury (Megan E. Yllanes of counsel), for respondents.

Order, Supreme Court, New York County (Debra A. James, J.), entered December 3, 2015, which, insofar as appealed from as limited by the briefs,, granted the motion of defendants Alfred Shtainer and Victoria Shtainer (the Shtainers) for summary judgment dismissing the action as against them, unanimously affirmed, without costs.

The Shtainers established entitlement to judgment as a matter of law pursuant to the homeowner exception to Labor Law §§ 240(1) and 241(6). Defendants showed that they were never at the residence while it was under demolition/construction, had no role in the work, and intended to use the premises as a family vacation home (see Del Carmen Diaz v Bocheciamp, 140 AD3d 408 [1st Dept 2016]; Patino v Drexler, 116 AD3d 534 [1st Dept 2014]). Nothing in the house plans indicates that any portion would be for commercial use, and plaintiff's speculation that it might be rented during those time periods when the Shtainers were not in residence there, without any evidentiary support for that statement, is insufficient to defeat summary judgment (see Del Carmen Diaz at 409).

We have considered plaintiff's remaining arguments, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 15, 2018

CLERK