McMANUS v. McMANUS (2000)

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about December 16, 1998, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for leave to serve an amended complaint, unanimously affirmed, without costs.

 While the motion court erred in determining as a matter of law that the estate of Janet McManus was entitled to the benefit of the exemption for owners of single family dwellings set forth in Labor Law § 240(1), since there are issues of fact as to whether the McManus premises upon which plaintiff was at work at the time of his accident were commercial or residential in nature (see, Bartoo v. Buell, 87 N.Y.2d 362, 639 N.Y.S.2d 778, 662 N.E.2d 1068;  Cannon v. Putnam, 76 N.Y.2d 644, 563 N.Y.S.2d 16, 564 N.E.2d 626), the court nonetheless correctly determined that plaintiffs' proposed claims against the Estate of Janet McManus were barred by the Statute of Limitations and that they would not relate back to the date when the summons and complaint were first filed (see, CPLR 210(b), 214;  see also, Buran v. Coupal, 87 N.Y.2d 173, 638 N.Y.S.2d 405, 661 N.E.2d 978).

MEMORANDUM DECISION.