Flores v Sleepy Hollow Estates and Sleepy Hollow Estates, LLC
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Flores v Sleepy Hollow Estates and Sleepy Hollow Estates, LLC 2012 NY Slip Op 30452(U) February 8, 2012 Sup Ct, Nassau County Docket Number: 12635/09 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 11 NASSAU COUNTY PRESENT: Murphv Honorable Karen Justice of the Supreme Court RICARDO FLORES, Index No. 12635/09 Plaintiff(s), Motion Submitted: 11/10/11 Motion Sequence: 003 -againstSLEEPY HOLLOW ESTATES AN SLEEPY HOLLOW ESTATES, LLC, Defendant(s). . The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . Briefs: Plaintiff s/Petitioner ' s........................................ Defendant' s/Respondent' s.................................. Motion by defendants , Sleepy Hollow Estates and Sleepy Hollow Estates , LLC seeking 3212 for an Order of this Court dismissing the complaint of plaintiff, Ricardo Flores , is granted. summar judgment pursuant to CPLR This motion arises out of an underlying personal injury action , fied in this Court in June 2009 , wherein the 240 and 241. Plaintiff fell from a ladder while performing construction work on the improved real propert owned by defendants. Plaintiff is alleging that the statutory residential exemption does not apply the real propert is in actuality, the site ofplaintiffs business entity. plaintiff alleged violations under Labor Law In September , 2008 , Leonardo Cordero and Virginia Stanco entered into a work that his company was to "repair and paint(ing)" the " Stanco agreement which provided [* 2] (rJesidence , and the contract was executed by Cordero and Virginia Stanco , as owner of the subject premises. ! Such work included the repair of shingles , siding, and painting the house including the windows and window trimming. According to the defendants , the premises is and was at the time of the underlying action , a private one- family residence and the home of multi generations of the Russo family. The real propert included a main house and a renovated cottage. The work was to be performed on the main house. in the family and owned by Virginia and Francis Stanco since November 2 , 1983. In 1987 , Ruth Russo and her thee children , formed the partnership, Sleepy Hollow Estates . The partnership s essential purpose was for the management of its The propert has been real estate holdings and was part of an estate plan. Shortly after the formation of the partnership, the Stanco s transferred their fee interest in the subject real propert to the defendant partnership. Plaintiff argues that the defendants have set up a " sophisticated real estate parnership and the construction work was performed for the purposes of improvement on one of the parnership s assets; granting that the statutory exemption would contravene the public policy purposes ofthe statutory exemption in Labor Law ~ ~240 and 241; and the premises is situated within the Town of Oyster Bay, whose Building Code defines one- family dwellngs as a dwellng used solely for residential purposes , and that house one family unit. Ruth Russo , the family matriarch , lived at the premises with her husband, Andrew Russo , her daughter , Virginia Russo Stanco , and son- in- law , Francis Stanco , as well as . Ruth' s granddaughter and her husband. The family members do not pay rent. No rental income is derived from the propert in question. Plaintiff contends that there are in fact three familes residing in the home and thus it cannot be a single family home eligible for the exemption. Plaintiff, as an employee of Leonardo Cordero , performed the painting work on the subject premises. On August 26 2008 , plaintiff, during the course of performing these duties sustained injuries after fallng from an extension ladder. Plaintiff contends that the defendants directed and controlled the work and supplied the allegedly defective ladder It is noted that the defendants submitted a deed into evidence indicating that the defendant parnership actually owned the subject premises. s son s was deceased at the time of this accident. He and his family resided in the cottage , which is now occupied by his sons. No rent is paid in connection with the cottage , which , in any event , was not the subject of this home improvement project. 0ne of Ruth Russo [* 3] which caused his fall. Plaintiff submits into evidence the following: an affidavit of Mario Gonzales , fellow employee of Cordero Corp. ; lease agreement between defendant , Sleepy Hollow Estates and Petroleum Tankers , L TD; and the work agreement between the Codero Brothers and Sleepy Hollow Estates. Defendants argue that the exemption under the Labor Law provisions is applicable , as the business entity is "nothing more than a legal vehicle of convenience " for the Russo family, and the business acts performed on the premises are merely incidental. They deny providing the allegedly defective ladder and that they controlled the work. Defendant submits the following: copies ofthe pleadings; transcripts ofthe depositions of plaintiff, and Ruth Russo on behalf of Sleepy Hollow Estates; and affidavits of Ruth Russo and extended family . member , James Stanco. A Court may grant summary judgment where there is no genuine issue of a material fact , and the moving part is; therefore , entitled to summary judgment as a matter of law (Alvarez v. Prospect Hosp. 68 N. 2d 320 , 501 N. 2d 572 , 508 N. S.2d 923 (1986)). Thus , when faced with a summary judgment motion , a court' s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to (Miller v. Journal-News , 211 determine whether or not there exists a genuine issue for trial 2d 626 620 N. 2d 500 (2nd Dept. , 1995)). The burden on the part moving for summar judgment is to demonstrate a prima facie entitlement to judgment as a matter oflaw by tendering sufficient evidence to demonstrate the absence of material issue of fact (Ayotte v. Gervasio 81 N. 2d 1062 619 N. 2d 400 601 2d 463 (1993)). Once the initial burden has been met by movant, the burden shifts to the part opposing the motion to submit evidentiar proof in admissible form , sufficient to create material issues of fact requiring a trial. Generally, Labor Law 240 provides in relevant part; . . . all contractors and owners and their agents except owners of one and two- family dwellngs who contract for but do not direct or control the work in the erection , demolition , repairing, altering, painting, cleaning or pointing of a building or structure shall fuish or erect , or cause to be furnished or erected for the performance of such labor, scaffolding, hoists , stays , ladders , slings hangers , blocks , pulleys , braces , irons , ropes , and other devices which shall be so constructed , placed and operated as to give proper protection to a person so employed. . . . Labor Law 241 sets forth specific safety requirements for contractors and owners and their [* 4] agents regarding such work , with the same exceptions. In reviewing the record setting forth the facts ofthe instant case , there is no evidence to support that the defendants directed or controlled plaintiffs work. Plaintiffs self-serving affidavit only avers that an individual that may have been Andrew Russo , whose identity could not be confirmed , gave him three ladders to use one from which he fell. This court noted , however , that the owner s involvement consisted of determining what portion of the premises to paint and what type of paint to use , and did not include any supervision of the maner or method of the painter s work nor did the owner direct the painter to use the scaffolding in the performance of his work. Those facts are insufficient to demonstrate (see Mayen v. Kalter, 282 D.2d 508 , 722 N. 2d 760 (2dDept. , 2001)). The remaining issues raised by Plaintiff are whether this is a one- family dwellng and whether the actual use of the subj ect premises was for residential or commercial purposes , or both. direction and control within the meaning of Labor Law ~ 240(1) Although it is the defendants ' initial prima facie burden , the Court has considered whether plaintiffs reliance upon the Town of Oyster Bay Code to define a single- family dwellng, is proper. It is noted that plaintiff provides only a section of the Code and he does not provide citations. The provision upon which he relies states in relevant part: " . . . a single or one family dwellng is a building as a home or residence for not more than one (1) family. . . . designed for and occupied exclusively The defendants, in their reply papers , provide the citation and Code provision in full: . . . buildings for the purpose of this chapter shall be classified in respect to their occupancies as follows: (o)ne- family owner-occupied dwellngs: buildings containing not more than one dwellng unit occupied exclusively for residential purposes by the immediate family ofthe owner-occupant , not having more than one kitchen. . . and no portion of which is used for the accommodation of roomers or boarders. B. One-and two- family dwellngs: buildings containing one or two dwellng units , with less than four lodgers with a family in either one of such dwellng units. . . . (see Town of Oyster Bay Code 135- 17J). The authority of a Town to enact zoning legislation is derived from Section 261 of the Town Law. Pursuant to this statute , the Town Board is empowered by Ordinance "to regulate and restrict. . . the density of population , and the location and use of buildings. . . for. . . residence or other purposes. " Said power is granted for "the purpose of promoting the health [* 5] safety, morals , or the general welfare of the community. (See McMinn v. Town of Oyster 2d 859 Nassau County Sup. Ct. (1981)). Therefore , the Bay, 111 Misc. 2d 1046 445 N. above referenced Code was enacted for the narrow purpose of enforcing the municipality' zoning laws. It cannot be expanded for application to the case at bar. It also is relevant to set forth the essential purpose ofthe homeowner exemption , which was added to Labor Law ~ 240(1) and ~ 241 in 1980. The exemption was intended by the Legislature to shield homeowners from the harsh consequences of strict liabilty under the provisions of the Labor Law and to reflect the legislative determination that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices (see Bartoo v. Buell 87 N. 2d 362 367 , 662 2d 1068 639 N. Dineen v. Rechichi 70 A. D.3d 81 , 888 N. S.2d 834 (4th Dept. , 2009)). Since the enactment of this amendment , the courts have repeatedly granted an exemption from the liabilty imposed by the Labor Law upon homeowners who contract for repair work , where it is clear that the propert is used solely as a one- or twofamily dwellng and where the homeowner does not (see, Schwartz 142 A. 2d 635 , 530 N. S.2d 281 (2d Dept. Rimoldi v. Schanzer, 147 and to procure suitable insurance protection 2d 778 (1996), direct or control the work v. Foley, 2d 541 , 1988), 537 N. 2d 839 (2d Dept. , 1989)). As to the use of the premises , it is well settled that the homeowner exemption from Labor Law liabilty does not apply where a one- family dwellng is used by its owner exclusively for commercial purposes 2d 1035 573 N. 78 N. Y.2d 880 577 2d 443 (1991)). Notwithstanding the foregoing, the Court is aware (see Van Amerogen v. Donnini, based on the plethora of case law, , generally, an owners of their residence for commercial purposes does not automatically cause them to lose the protection of exception from liabilty of a plaintiffs claim under Labor Law (see Umanzor v. Charles Hofer Wallpapering, Inc. 48 A. D.3d 552 , 852 N. 205 (2d Dept. , 2008)). that ' use of a portion ~~ 240 and 241 Painting In determining whether or not to apply the dwellng exemption to those situations , that fall somewhere between exclusive residential and exclusive commercial use , the Court of Van Amerogen v. Donnini, supra indicated that a strict construction is to be Appeals in applied when interpreting Labor Law ~~ 240(1) and 241. There , the plaintiff was injured while working on the roof of a one- family house that was being used as rental propert. The owners of the house argued that though they did not reside there , the propert was being used as a one- family dwellng, and thus were entitled to the statutory exemption. The Court of Appeals , in rejecting that argument , held that the dwellng exemption should not be expanded to encompass homeowners who use their one- or two- family premises entirely and solely for commercial purposes (Van Amerogen v. Donnini, supra [* 6] It is uncontroverted that the extended Russo family reside in this single family dwellng. It is further established that the residence was held in the name of a parnership, which was comprised of family members. Lastly, it was conceded that management activities pertaining to rental properties also owned by the parership, including maintaining copies of business records , receipt of rent collected from other properties and telephone calls with tenants of other properties were made and received at the subject dwellng. No question of fact was raised with regard to the subject propert being a rental unit , in fact , the evidence was to the contrary. On the facts before the court , the use of the residence in the past , up to and including the time ofthe accident , had been primarily residential with ancilar commercial use. In sum the defendants seek the application of the dwellng exemption where a homeowner contracts for such work upon a single structure used as both a dwellng and a place of business. 2d 16 (1990), the Putnam 76 N. 2d 644 564 N. 2d 626 563 N. owner ofthe subject real propert, used for both his business and a dwellng occupied by his In Cannon family, retained the plaintiffto help install a floodlight to iluminate his front yard and its two artificial ponds. Plaintiff sustained injuries during the installation process. The evidence indicated that the business entity and/or work site was not located in or on the dwellng structure itself; however , the light was to be installed on an outdoor area to which all of the structures on the propert had access. The evidence established that the project had been undertaken solely in connection with defendant' s residential use of the propert. Therefore the Court of Appeals held that the owner was entitled to invoke the statutory exemption. Owners of one or two- family dwellngs who did not direct or control the work , are entitled to the protection of the homeowner exemption , notwithstanding the presence of some commercial activity on their properties. The Cour of Appeals has held that the exemption was which housed not only the defendant's personal belongings , but also his neighbor s belongings as well as a separate section of the barn leased by defendant to nine individuals to store their golf carts for an applicable to an incident involving work on a barn roof, annual fee. In a second case , decided at the same time , a woman who added a bedroom to the first floor of her home , with a sliding glass door leading to the backyard, was entitled to the exemption , notwithstanding the fact that she operated a children s day care center in her Buell home. 2d 778 (1996)). 87 N 2d 362 662 N. 2d 1068 639 N. home. A residence that houses a business may retain its character as a (Bartoo v. Looking at the site and purpose of the work, which consisted of the installation of a door and window in the dining room necessitating the painting ofthe exterior of the residence it is clear that the home improvement was not intended to benefit the commercial usage of the propert, but rather related to the residential use of the defendants home. The defendants are [* 7] (Khela v. Neiger 85 N. 2d 333 , 648 N. 2d 1329 Ramirez v. Begum 35 A. D. 3d , 578 , 829 N. S.2d 117 (2d Dept. therefore qualified for the exemption. 624 N. 2006)). 2d 566 (1995); Where the single family home was used as a residence , was not an income producing propert, the fact that the deed was in the name of the partnership does not exclude application of the exemption , where as here , any commercial benefit was ancilary to the (Castellanos v. United Cerebral Palsy Assn. Of Greater 77 A. D.3d 879 , 909 N. 2d 757 (2d Dept. Muniz v. Church of Our Lady ofMt. Carmel 238 A. 2d 101 655 N. S.2d 38 (1st Dept. 90 N. residential purpose of the home. Suffolk, Inc., , 2010); , 1997), 804 683 N. 2d 1054 661 N. Iv den. 2d 180 (1997)). With regard to Plaintiff s position that three familes live in the home , thus it is not a single- family " home contemplated by the statute , it is untenable. No evidence was offered to counter Defendants proof that the dwellng is a single- family home. The nature of the use of the premises is controllng, rather than the relationship of the people residing in the home. (See Muniz v Church of Mt. Carmel, id. fact that unrelated priests resided in a rectory, Castellanos v. United Cerebral Palsy Assn. Of Greater Suffolk, Inc., (six disabled individuals lived together and functioned as a family unit), thus the extended fanilyresiding in the subject dwellng did )(the did not change the purpose of the rectory to serve as their residence); supra; not deprive the owner of the homeowner exemption under Labor Law. Accordingly, the defendants ' motion is granted. The foregoing constitutes the Order of this Court. Dated: February 8 , 2012 Mineola , N. ENTERED FEB 1 6 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE
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