        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

351
CA 12-01192
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


JOSEPH C. HALE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MEADOWOOD FARMS OF CAZENOVIA, LLC, MARC P.
SCHAPPELL AND THOMAS B. ANDERSON,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


ALEXANDER & CATALANO, LLC, SYRACUSE (WILLIAM P. SMITH, JR., OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (JAMES J. GASCON OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered January 3, 2012. The order, inter alia,
granted defendants’ cross motion for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the cross
motion for summary judgment dismissing the Labor Law § 240 (1) claim,
and reinstating that claim, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this Labor Law and common-law
negligence action seeking damages for injuries that he sustained when
a ladder fell from the roof of a barn and knocked him from another
ladder on which he was standing. In appeal No. 1, he appeals from an
order that, inter alia, denied his motion for partial summary judgment
on the Labor Law §§ 240 (1) and 241 (6) claims, and granted
defendants’ cross motion for summary judgment dismissing the Labor Law
§ 240 (1) claim. In appeal No. 2, he appeals from an order denying
his motion seeking leave to renew and reargue his motion to settle the
record in appeal No. 1 to include additional documentation.

     In appeal No. 1, we agree with plaintiff that Supreme Court erred
in granting defendants’ cross motion with respect to the Labor Law §
240 (1) claim. We therefore modify the order in appeal No. 1
accordingly. Contrary to the court’s conclusion, defendants failed to
meet their initial burden on their cross motion of establishing as a
matter of law that the homeowner exemption contained in the statute
applies to them. We likewise reject plaintiff’s contention that he
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                                                         CA 12-01192

was entitled to summary judgment with respect to that issue. In
pertinent part, the statute imposes liability for injuries arising
from certain construction site accidents upon “contractors and owners
and their agents, except owners of one and two-family dwellings who
contract for but do not direct or control the work” (§ 240 [1]). “The
homeowner exemption, which was added to Labor Law § 240 (1) . . . in
1980, was ‘intended by the Legislature to shield homeowners from the
harsh consequences of strict liability under the provisions of the
Labor Law [and] reflect[s] the legislative determination that the
typical homeowner is no better situated than the hired worker to
furnish appropriate safety devices and to procure suitable insurance
protection’ ” (Dineen v Rechichi, 70 AD3d 81, 83-84, lv denied 14 NY3d
703, quoting Bartoo v Buell, 87 NY2d 362, 367). The Court of Appeals
has cautioned, however, against applying “an overly rigid
interpretation of the homeowner exemption and [instead has] employed a
flexible ‘site and purpose’ test to determine whether the exemption
applies” (Bartoo, 87 NY2d at 367-368; see Cannon v Putnam, 76 NY2d
644, 650). Thus, “when an owner of a one- or two-family dwelling
contracts for work that directly relates to the residential use of the
home, even if the work also serves a commercial purpose, that owner is
shielded by the homeowner exemption from the absolute liability” of
Labor Law § 240 (Bartoo, 87 NY2d at 368).

     Here, plaintiff alleged that he fell from a ladder while
reconstructing a barn that defendants purchased and were having
rebuilt on their property in Cazenovia. The property on which the
barn was rebuilt consisted of several smaller parcels of land that had
comprised an estate of approximately 350 acres in the early 1900s.
Marc P. Schappell and Thomas B. Anderson (collectively, individual
defendants), the sole shareholders of defendant Meadowood Farms of
Cazenovia, LLC (Meadowood LLC), purchased the parcels in their
individual capacities as part of their plan to restore the estate to
its original size. The individual defendants had rehabilitated the
estate’s main residence, which was situated on the west end of the
combined property, and they occasionally resided there. The property
contained several other residences, including one that was used by the
manager of Meadowood LLC as part of her employment compensation. The
residence of that manager was on the east end of the combined
property, approximately a quarter of a mile away from the residence of
the individual defendants. Furthermore, deeds in the record establish
that the parcel containing the manager’s residence is on a street
different from the parcel containing the individual defendants’
residence. The individual defendants testified that they did not know
whether they purchased the barn itself in their individual capacities
or through Meadowood LLC. Heritage Structural Renovation, Inc.
(Heritage), plaintiff’s employer at the time of the accident, was
subsequently hired to disassemble the barn and reconstruct it on the
aforementioned property, but we conclude that there is conflicting
evidence in the record with respect to whether Heritage entered into a
contract with the individual defendants or Meadowood LLC. The barn
was situated near the residence of Meadowood LLC’s manager, along with
several other barns that were used in the commercial operations of
Meadowood LLC. The individual defendants testified at their
depositions that the barn at issue was to be used in part for
                                 -3-                           351
                                                         CA 12-01192

Meadowood LLC’s commercial operations, but they also submitted
affidavits in support of the cross motion in which they averred that
they had purchased it solely for historical preservation purposes.

     Although the inconsistencies between the individual defendants’
deposition testimony and their affidavits submitted in support of the
cross motion do not appear to “constitute[] an attempt to avoid the
consequences of [their] prior deposition testimony by raising feigned
issues of fact” (Shpizel v Reo Realty & Constr. Co., 288 AD2d 291,
291), we conclude that those inconsistencies present credibility
issues that must be resolved at trial (see Godlewski v Carthage Cent.
Sch. Dist., 83 AD3d 1571, 1572; Palmer v Horton, 66 AD3d 1433, 1434;
Dietzen v Aldi Inc. [New York], 57 AD3d 1514, 1514). Consequently,
there remains “an issue of fact as to the commercial versus
residential nature of the improvements . . . All in all, neither party
was entitled to summary judgment on the exemption issue on this
record” (Mandelos v Karavasidis, 86 NY2d 767, 769; see Davis v
Maloney, 49 AD3d 385, 386).

     With respect to appeal No. 2, plaintiff contends that the court
erred in denying his motion for leave to reargue or renew his prior
motion to settle the record in appeal No. 1. It is undisputed,
however, that plaintiff stipulated to settle the record in appeal No.
1 prior to seeking leave to reargue or renew and has not sought to be
relieved from his stipulation (see e.g. Clark v Delaware & Hudson R.R.
Corp., 245 App Div 447, 451), and thus no appeal lies from the court’s
order in appeal No. 2 (see Matter of New York City Health & Hosps.
Corp., 248 AD2d 387, 387; see generally CPLR 5701). Once plaintiff
stipulated to the record on appeal, he was no longer entitled to move
to settle the record or, indeed, to seek leave to reargue or renew a
motion to settle the record that preceded the stipulation. “Only
where there is cause sufficient to invalidate a contract, such as
fraud, collusion, mistake or accident, will a party be relieved from
the consequences of a stipulation made during litigation” (Hallock v
State of New York, 64 NY2d 224, 230; see McCoy v Feinman, 99 NY2d 295,
302), and plaintiff made no such showing here.




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
