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
-3- 789 

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