Farias v. Simon

122 A.D.3d 466, 997 N.Y.S.2d 28

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2014
• Docket: 13069 113267/08
• Status: Published

Opinions

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about July 1, 2013, which, to the extent appealed from as limited by the briefs, granted the motion of defendants John Douglas Simon, Jr. and Ellen S. Parry (collectively the owners) for summary judgment dismissing the complaint, and denied plaintiffs motion for partial summary judgment on his claim pursuant to Labor Law § 240 (1), affirmed, without costs.

Plaintiff, a laborer, was injured in a fall from a scaffold while he was working on a renovation project at the owners’ one-family house in Bronxville, New York. The accident occurred on October 19, 2005. The issue on this appeal is whether the motion court properly applied the homeowner’s exemptions set forth under Labor Law §§ 240 and 241. The homeowner’s exemptions preclude the imposition of the otherwise absolute statutory liability upon “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law §§ 240 [1]; 241 [6]). The exemptions, however, do not “encompass homeowners who use their one [and] two-family premises entirely and solely for commercial purposes” (Van Amerogen v Donnini, 78 NY2d 880, 882 [1991]). As set forth in plaintiffs brief, the issue on this appeal is whether the work he was performing at the time of the accident was for the owners’ commercial use of the house.

The owners acquired title to the premises through inheritance in July 2004. They began the renovation in July 2005. Parry’s deposition is unrefuted insofar as she testified that the owners renovated the house for the purpose of modernizing it and using it as their second home. As the renovation was ongoing, the house was unoccupied at the time of plaintiffs injury. The renovation reached the punch list stage in the fall of 2006. Parry testified that the owners, who never occupied the house, decided to lease it out in the spring of 2007 and did so that August.

The owners made a prima facie showing of their entitlement to the homeowner’s exemption by demonstrating that their premises consist of a one-family dwelling and that they did not direct or control plaintiff’s work (see Affri v Basch, 45 AD3d 615, 616 [2d Dept 2007], affd 13 NY3d 592 [2009]). Therefore, the burden shifted to plaintiff to “produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Plaintiff has failed to meet this burden as his arguments before this Court and the motion court are based on unfounded speculation that the owners intended to use the house solely for commercial purposes.

The availability of the homeowner’s exemption hinges upon “the site and the purpose of the work, a test which must be employed on the basis of the homeowners’ intentions at the time of the injury” (Landon v Austin, 88 AD3d 1127, 1128 [3d Dept 2011] [internal quotation marks omitted]). Accordingly, plaintiff and the dissent misplace their reliance on the lease, which the owners entered into almost two years after plaintiffs injury. The dissent further misplaces its reliance on Parry’s testimony regarding the owners’ renovation of their Manhattan apartment. This testimony is of little consequence in light of Parry’s uncontradicted testimony that the owners intended to use the premises as a second home.

Another example of plaintiffs unfounded speculation is his argument that the owners “would not have been able to rent the dilapidated house without undertaking the construction project.” On the contrary, Parry testified that prior to the renovation, the house needed only minor work consisting of painting, cleaning and “a little bit of fixing up” in order for it to be rented, sold or occupied. Without contradiction, Parry also testified that the renovation entailed, among other things, the extension of the house, rewiring, plus the addition of a kitchen, a bedroom, two bathrooms, a mud room and a powder room. According to Parry the cost of the project was approximately $750,000. The renovation, as described, was far more extensive than the relatively minor repairs that would have been needed to prepare the Bronxville house for rental as opposed to personal use.

A reversal is not warranted by the dissent’s view that the owners’ intention to make personal use of the premises “is not readily determinable on a motion for summary judgment.” In Thompson v Geniesse (62 AD3d 541 [1st Dept 2009]), this Court affirmed an order granting the defendants-homeowners’ motion for summary judgment. In that case, we applied the homeowner’s exemption on the basis of the homeowners’ “intended occupancy” of the subject premises as a one-family dwelling (id. at 541-542). Credit Suisse First Boston v Utrecht-America Fin. Co. (80 AD3d 485 [1st Dept 2011]) and Coan v Estate of Chapin (156 AD2d 318 [1st Dept 1989]), which the dissent cites, stand for the distinct proposition that a party’s good faith is not readily determinable on a motion for summary judgment (see e.g. Coan at 319). Moreover, the granting of the owners’ motion in this case does not implicate the determination of issues. A court’s function on a motion for summary judgment involves issue finding rather than issue determination (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]). As noted above, the owners have made a prima facie showing of their entitlement to the homeowner’s exemption (see Affri, 45 AD3d at 616). Again, plaintiff did not meet his burden of establishing the existence of material issues of fact (see Alvarez, 68 NY2d at 324).

We have considered plaintiffs remaining arguments and find them unavailing.

Concur — Tom, J.E, Friedman and DeGrasse, JJ.