Freeman v. Advanced Design Products, Inc.

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered March 14, 2005 in a personal injury action. The order granted plaintiffs motion for partial summary judgment on liability under Labor Law § 240 (1) against defendants Timothy R. Ryan, Edward E. May and Kathleen M. May. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained when he fell from a scaffolding that collapsed while he was performing construction or renovation work. The work was being performed on a two-family dwelling that had been damaged by fire and that was owned by Timothy R. Ryan, Edward E. May and Kathleen M. May (defendants). We conclude that Supreme Court properly granted plaintiff’s motion for partial summary judgment on liability under Labor Law § 240 (1) against those defendants, thereby implicitly determining as a matter of law that they are not entitled to the benefit of the homeowner exemption set forth in the statute. The record establishes that, for the seven or eight years preceding the fire, defendants had used the property exclusively for commercial purposes, i.e., as rental property; that the fire had rendered the premises unoccupied and indeed uninhabitable for the duration of the work; that defendants had contracted for that work for the explicit purpose of renovating the house for sale to a third party; and that defendants had sold the house upon the completion of the work. Under those circumstances, defendants are not entitled to the benefit of the homeowner exemption (see Lombardi v Stout, 80 NY2d 290, 296-297 [1992]; Van Amerogen v Donnini, 78 NY2d 880, 882-883 [1991]; see also Morgan v Rosselli, 23 AD3d 356, 356-357 [1113] [2005]; Greenman v Page, 4 AD3d 752, 753-754 [2004]; Sweeney v Sanvidge, 271 AD2d 733, 734-735 [2000], lv dismissed 95 NY2d 931 [2000]). Present—Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.