RAMIREZ v. (and a third-party action). (2006)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated June 14, 2005, as denied his cross motion for partial summary judgment on the issue of liability on the cause of action to recover damages pursuant to Labor Law § 240(1) and granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On June 3, 2002, the plaintiff, who was employed by the third-party defendant Luis Valdez, d/b/a Anton Roofing Construction, allegedly fell and sustained injuries when he was removing the siding from the second floor of a two-family dwelling owned by the defendants.

 Owners of a one-or two-family dwelling are exempt from liability under Labor Law §§ 240 and 241 unless they directed or controlled the work being performed (see Skiver v. Buell, 87 N.Y.2d 362, 367, 639 N.Y.S.2d 778, 662 N.E.2d 1068;  Cannon v. Putnam, 76 N.Y.2d 644, 649-650, 563 N.Y.S.2d 16, 564 N.E.2d 626;  Siconolfi v. Crisci, 11 A.D.3d 600, 601, 783 N.Y.S.2d 627;  Miller v. Shah, 3 A.D.3d 521, 522, 770 N.Y.S.2d 739;  Saverino v. Reiter, 1 A.D.3d 427, 767 N.Y.S.2d 445;  Tilton v. Gould, 303 A.D.2d 491, 491-492, 756 N.Y.S.2d 757).   The defendants made a prima facie showing that they were entitled to the protection of the homeowner's exemption by submitting evidence demonstrating that they neither directed nor controlled the work being performed.   Use of a portion of a homeowners's premises for commercial purposes-as here, where part of the two-family dwelling was rented-does not automatically cause the homeowner to lose the protection of the exemption under this statute (see Small v. Gutleber, 299 A.D.2d 536, 751 N.Y.S.2d 49).   Rather, the exemption depends upon the site and purpose of the work (see Skiver v. Buell, supra at 367-368, 639 N.Y.S.2d 778, 662 N.E.2d 1068;   Khela v. Neiger, 85 N.Y.2d 333, 337-338, 624 N.Y.S.2d 566, 648 N.E.2d 1329;  Cannon v. Putnam, supra at 650, 563 N.Y.S.2d 16, 564 N.E.2d 626;   Stejskal v. Simons, 309 A.D.2d 853, 855, 765 N.Y.S.2d 886).   Here, the replacement of the siding of the exterior of the house “directly relate[d] to the residential use of the home” (Skiver v. Buell, supra at 368, 639 N.Y.S.2d 778, 662 N.E.2d 1068) since the defendants reside in the two-family dwelling (see Skiver v. Buell, supra at 367-368, 639 N.Y.S.2d 778, 662 N.E.2d 1068;  Khela v. Neiger, supra at 337-338, 624 N.Y.S.2d 566, 648 N.E.2d 1329;  Cannon v. Putnam, supra at 650, 563 N.Y.S.2d 16, 564 N.E.2d 626).   Thus, the defendants established their prima facie showing that they were entitled to the protection of the homeowners' exemption as a matter of law.

In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants exercised the degree of direction or control necessary for the imposition of liability (see Miller v. Shah, supra at 522, 770 N.Y.S.2d 739;  Saverino v. Reiter, supra at 428, 767 N.Y.S.2d 445;  Duncan v. Perry, 307 A.D.2d 249, 250, 762 N.Y.S.2d 275;  Decavallas v. Pappantoniou, 300 A.D.2d 617, 752 N.Y.S.2d 712).   Accordingly, the Supreme Court properly granted the defendants' cross motion to dismiss the complaint and denied the plaintiff's cross motion for partial summary judgment in the issue of liability on his cause of action to recover damages pursuant to Labor Law § 240(1).

The plaintiff's remaining contentions are without merit.