TRALA v. EGLOFF (1999)

On November 29, 1995, plaintiffs were performing work on the roof of a two-story brick dwelling owned by defendants.   Plaintiffs were standing on the roof when it collapsed.   They fell to the floor of the second story and portions of the roof fell on them.   Defendants had purchased the building, and had leased the two apartments in it.   When the upper apartment was damaged by fire, defendants contracted with plaintiffs' employer to remove the second story and convert the building to a one-family home, which defendants intended to lease once the work was completed.   At the time of the accident, at least one of the defendants lived in an apartment over a detached garage located on the same property.

Plaintiffs commenced these actions against defendant owners, alleging, inter alia, a violation of Labor Law § 240(1), and, following discovery, plaintiffs each moved for summary judgment on the issue of defendants' liability pursuant to Labor Law § 240(1).   In opposition to the motions, defendants claimed the exemption to liability for owners of one- and two-family dwellings.   Supreme Court denied the motions, concluding that there is an issue of fact whether defendants are entitled to the exemption.   We reverse and grant the motions.

 When determining whether the exemption applies where the property is used for both residential and commercial purposes, the site and purpose of the work are dispositive (see, Cannon v. Putnam, 76 N.Y.2d 644, 650, 563 N.Y.S.2d 16, 564 N.E.2d 626).   If the work being performed relates directly to the residential use of the property, the exemption will apply even if the work also serves a commercial purpose (see, Bartoo v. Buell, 87 N.Y.2d 362, 368, 639 N.Y.S.2d 778, 662 N.E.2d 1068).   Here, it is undisputed that defendants never resided in the building where the work was being performed, nor did they intend to move into the building once it was converted to a single-family residence (cf., Khela v. Neiger, 85 N.Y.2d 333, 624 N.Y.S.2d 566, 648 N.E.2d 1329).   Because the work being performed provided no ancillary residential benefit to defendants, but rather, served only a commercial purpose (see, Becker v. Royce, 170 A.D.2d 974, 566 N.Y.S.2d 140;  Gernstl v. Edwards, 162 A.D.2d 966, 557 N.Y.S.2d 191), defendants are not entitled to the home-owner exemption as a matter of law.   Because no issue has been raised concerning proximate cause, plaintiffs are entitled to summary judgment on the issue of liability.

Order unanimously reversed on the law without costs and motions granted.

MEMORANDUM: