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Dineen v. Rechichi

November 13, 2009

ROBERT DINEEN, APPELLANT,
v.
DANIEL RECHICHI ET AL., RESPONDENTS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Peradotto, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 24, 2010

{**70 AD3d at 82}

OPINION OF THE COURT

In this appeal, we are asked to determine whether Daniel Rechichi and Christine Rechichi (defendants) are entitled to the exemption from liability afforded to owners of one- and two-family dwellings under Labor Law § 240 (1) and § 241 (6) where plaintiff seeks damages for injuries he sustained while repairing a barn on defendants' property, which did not contain a single-family dwelling at the time of the accident. Under the circumstances of this case, we conclude that Supreme Court properly determined that the homeowner exemption applies to defendants because they intended to build a single-family residence on the property at the time of the accident and the barn was used solely for residential purposes.

Facts and Procedural History

Defendants and two other defendants who are not parties to this appeal are the joint owners of approximately 130 acres of property bordering County Route 113 in Hammondsport. When defendants purchased the undeveloped property in 2001, they planned to build a home, a barn and a pond on a six-acre parcel of the property. In February 2003, defendants hired plaintiff, a self-employed carpenter, to construct a pole barn on the property. On June 17, 2003, plaintiff fell from a ladder while inspecting the roof of the barn for leaks. At the time of the accident, the barn was the only structure located on the property, although defendants subsequently constructed a single-family home on the property.

Plaintiff commenced this action asserting causes of action for violations of Labor Law §§ 200, 240 (1) and § 241 (6), as well as common-law negligence. Defendants moved for summary judgment dismissing the complaint against them on the grounds{**70 AD3d at 83} that they are entitled to the homeowner exemption under Labor Law § 240 (1) and § 241 (6) and that they are not liable under the Labor Law § 200 and common-law negligence causes of action because they did not direct or control plaintiff's work. Plaintiff cross-moved for partial summary judgment on the Labor Law § 240 (1) cause of action and consented to dismissal of the section 200 cause of action. The court granted defendants' motion and denied plaintiff's cross motion. The court determined with respect to sections 240 (1) and 241 (6) of the Labor Law that defendants were entitled to the homeowner exemption therein because the record established that they intended to use the barn as storage for their personal belongings, not for any commercial purpose, and that the barn was part of defendants' plan to construct a personal residence. We note at the outset, inasmuch as plaintiff does not challenge the dismissal of his common-law negligence cause of action, any issue with respect thereto is deemed abandoned (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).

Discussion

Sections 240 (1) and 241 of the Labor Law both exempt from liability "owners of one[-] and two-family dwellings who contract for but do not direct or control the work." Here, it is undisputed that defendants did not direct or control plaintiff's work, and defendants concede that plaintiff is a covered worker under Labor Law § 240 (1) and § 241 (6). Thus, the sole question presented on this appeal is whether defendants are entitled to the benefit of the statutory exemption for owners of one- and two-family dwellings (see § 240 [1]; § 241 [6]), despite the fact that plaintiff was injured during the construction of a barn and defendants' residence had not yet been constructed at the time of the accident. Although this case involves somewhat novel facts, we conclude that the court properly determined that defendants are entitled to the benefit of the homeowner exemption and are therefore exempt from liability under Labor Law § 240 (1) and § 241 (6).

The homeowner exemption, which was added to Labor Law § 240 (1) and § 241 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{**70 AD3d at 84} furnish appropriate safety devices and to procure suitable insurance protection" (Bartoo v Buell, 87 NY2d 362, 367 [1996]).

The Memorandum of the Law Revision Commission states in support of the amendments that: "It is unrealistic to expect the owner of a one[-] or two[-]family dwelling to realize, understand and insure against the responsibility sections 240 and 241 now place upon him [or her]... [S]uch owners ought to be secure in the reasonable assumption that if they have no direction or control over the work, they cannot be held strictly liable" (Mem of Law Rev Commn, Bill Jacket, L 1980, ch 670).

The Law Revision Commission summarized its position with respect to the amendments in its Recommendation to the 1980 Legislature: "In short, owners of one[-] and two[-]family dwellings cannot be expected to be in a position, as respects the work, which is dominant over that of the person doing the work... This should be true even in the extreme case where the injured worker is a self-employed, self-proclaimed 'contractor' without insurance" (Recommendation of Law Rev Commn, Bill Jacket, L 1980, ch 670).

The statutes do not define "dwelling." In light of the remedial purpose of the amendments, however, the Court of Appeals has cautioned 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). Under that test, "whether the exemption is available to an owner in a particular case turns on the site ...


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