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

789
CA 15-01752
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


JASON FAWCETT AND CYNTHIA FAWCETT,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

FRANKLYN COLE STEARNS, DEFENDANT-RESPONDENT.


BROWN CHIARI LLP, LANCASTER (ERIC SHELTON OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(Paul Wojtaszek, J.), entered May 15, 2015. The order, inter alia,
granted that part of the motion of defendant for summary judgment
dismissing the Labor Law §§ 240 (1) and 241 (6) claims and denied the
cross motion of plaintiffs for partial summary judgment on the issue
of liability under Labor Law § 240 (1).

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this Labor Law and common-law
negligence action seeking damages for injuries sustained by Jason
Fawcett (plaintiff) when he fell from a roof while renovating a
cottage owned by defendant and located within the grounds of the
Chautauqua Institution (Institution). Plaintiffs contend that Supreme
Court erred in granting that part of defendant’s motion for summary
judgment dismissing the Labor Law §§ 240 (1) and 241 (6) claims on the
basis that defendant is exempt from liability as the owner of a
single-family dwelling, and that the court should have granted their
cross motion for partial summary judgment on the issue of liability
under section 240 (1). We conclude that the court properly granted
that part of defendant’s motion and denied plaintiffs’ cross motion.

     Both Labor Law §§ 240 (1) and 241 exempt from liability “owners
of one[-] and two-family dwellings who contract for but do not direct
or control the work” (see Byrd v Roneker, 90 AD3d 1648, 1649; Dineen v
Rechichi, 70 AD3d 81, 83, lv denied 14 NY3d 703). The homeowner
exemption was added to Labor Law §§ 240 (1) and 241 in 1980, and “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
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                                                         CA 15-01752

homeowner is no better situated than the hired worker to furnish
appropriate safety devices and to procure suitable insurance
protection’ ” (Dineen, 70 AD3d at 83-84, quoting Bartoo v Buell, 87
NY2d 362, 367). “[T]he existence of both residential and commercial
uses on a property does not automatically disqualify a dwelling owner
from invoking the exemption. Instead, whether the exemption is
available to an owner in a particular case turns on the site and
purpose of the work” (Cannon v Putnam, 76 NY2d 644, 650). “[T]he
‘site and purpose’ test ‘must be employed on the basis of the
homeowners’ intentions at the time of the injury underlying the
action’ ” (Dineen, 70 AD3d at 85).

     Contrary to plaintiffs’ contention, we conclude that defendant
met his burden of establishing the applicability of the homeowner
exemption (see Cansdale v Conn, 63 AD3d 1622, 1623; see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Defendant’s
submissions in support of his motion, including his deposition
testimony, establish that he purchased the cottage with the intention
of renovating it so that he and his wife could use it “as a getaway,
second home” and eventually as a retirement property. Inasmuch as the
cottage is located within the grounds of the Institution, defendant
also intended to rent the property. One of the upgrades to the
cottage that defendant and his wife decided to make was to install
dormers in order to make the second floor more accommodating because
the sloping ceilings were very steep and left little headroom in the
bedrooms and bathroom. Defendant testified that his wife did not want
to spend time at the cottage unless the second floor was comfortable
and livable, and defendant acknowledged that adding dormers would
serve the further purpose of making the property more attractive to
renters. It is undisputed that defendant subsequently hired
plaintiff’s employer to install the dormers and that plaintiff was
injured while performing that work, which defendant did not direct or
control. Consistent with his intentions at the time of plaintiff’s
accident, defendant thereafter rented the cottage for eight of the
nine weeks during the summer season at the Institution, while he and
his wife stayed there for one week during the season and almost every
weekend during the following off-season. Defendant also winterized
the cottage, which was consistent with his intention to use it as a
year-round getaway rather than merely a summer rental property. Based
on the foregoing, we conclude that defendant established that the work
performed by plaintiff directly related to the intended residential
use of the cottage by defendant and his wife as a second home even
though it also served the commercial purpose of making the property
more attractive to renters and, as a consequence, defendant “is
shielded by the homeowner exemption from the absolute liability of
Labor Law §§ 240 and 241” (Bartoo, 87 NY2d at 368; see Farias v Simon,
122 AD3d 466, 467; Stephens v Tucker, 184 AD2d 828, 829).

     We further conclude that plaintiffs failed to raise a triable
issue of fact in opposition (see generally Zuckerman, 49 NY2d at 562).
The record does not support plaintiffs’ assertion that defendant
intended to use the cottage exclusively for commercial purposes or
that the renovation work was unrelated to the residential use of the
property (see Farias, 122 AD3d at 467-468; Jimenez v Pacheco, 73 AD3d
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                                                         CA 15-01752

1129, 1130). Contrary to plaintiffs’ further contention, inasmuch as
the record establishes that defendant used the cottage for both
commercial rental and residential purposes, he is still entitled to
the exemption despite the fact that he reported on his federal tax
return that he received income from renting the property (see
Crowningshield v Kim, 19 AD3d 975, 977, lv denied 5 NY3d 711).
Finally, to the extent that plaintiffs contend that defendant does not
fall within the class of persons that the homeowner exemption is
designed to protect because he is an insurance professional with a
legal education who demonstrated business acumen by renting the
cottage, we conclude that plaintiffs’ contention is without merit
inasmuch as “there is no separate degree of sophistication analysis
under Labor Law §§ 240 and 241” (Dineen, 70 AD3d at 87 [internal
quotation marks omitted]).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
