SOLIS v. 340 WEST 12 REALTY LLC (2024)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered May 9, 2023, which denied defendant's motion to renew its motion for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) claims against it based on the homeowner's exemption, unanimously affirmed, without costs.

Defendant, an LLC whose managing member is nonparty Todd Cohen, a real estate developer, acquired a two-family residential property that it converted into a one-family property.  Plaintiffs were injured while working on demolition at the property.

In the prior motion for summary judgment, defendant demonstrated prima facie that it was entitled to the protection of the homeowner's exemption and dismissal of the Labor Law §§ 240(1) and 241(6) claims by submitting Cohen's testimony that he intended to use the property solely for residential purposes (see Rivera v. Matiz Architecture, PLLC, 217 A.D.3d 552, 553, 191 N.Y.S.3d 391 [1st Dept. 2023]).  However, in opposition, plaintiffs raised an issue of fact as to whether defendant intended to use the property for commercial purposes by submitting evidence that a provision of the mortgages on the property that required defendant to occupy the property within 60 days and to use the property as its principal residence for one year had been deleted (see Davis v. Maloney, 49 A.D.3d 385, 386, 854 N.Y.S.2d 355 [1st Dept. 2008]).

The motion to renew was properly denied, because even though defendant offered new facts in support of its motion, the new facts would not have changed the prior determination (see CPLR 2221[e];  Diwan v. Grinberg, 188 A.D.3d 526, 527, 132 N.Y.S.3d 617 [1st Dept. 2020]).  In support of its motion, defendant submitted another affidavit from Cohen, averring that he and his family had moved into the property after the renovations were completed.  However, the fact that the family moved into the property after the accident does not change the result, because 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” (Farias v. Simon, 122 A.D.3d 466, 467, 997 N.Y.S.2d 28 [1st Dept. 2014], appeal dismissed 25 N.Y.3d 948, 7 N.Y.S.3d 277, 30 N.E.3d 168 [2015] [internal quotation marks omitted];  see also Davis v. Maloney, 49 A.D.3d at 386, 854 N.Y.S.2d 355).

We have considered defendant's remaining contentions and find them unavailing.