Mandelos v. Karavasidis

86 N.Y.2d 767 (1995)

655 N.E.2d 174

631 N.Y.S.2d 133

John Mandelos, Appellant, v. Kouzinia Karavasidis, Defendant and Third-Party Plaintiff-Respondent. John Chimney Construction, Inc., Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.

Decided July 6, 1995.

Eisenberg, Margolis & Friedman, New York City (Mitchell R. Friedman of counsel), for appellant.

John P. Coogan, Garden City, for defendant and third-party plaintiff-respondent.

Furey, Furey, Lapping, DeMaria & Petrozzo, P. C., Hempstead (James M. Furey of counsel), for third-party defendant-respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

*768MEMORANDUM.

The order of the Appellate Division should be modified, without costs, by denying summary judgment to defendant as to the Labor Law § 240 (1) and § 241 causes of action and, as so modified, affirmed.

The lower courts should not have granted summary judgment, sua sponte on searching the record, to defendant because material issues of fact exist as to whether the subject properties qualified for the Labor Law exception (Labor Law § 240 [1]; § 241).

The record discloses a triable issue of fact, at least regarding the threshold "one- or two-family dwelling" qualification. *769 Defendant's two two-family semiattached structures at issue enjoy arguably unifying features, which preclude summary judgment in this case. The record shows that after renovations, during which plaintiff fell and was injured, these semiattached buildings (1) shared a single stairway leading to all units in both buildings, (2) had a single metal gate, with one entrance, surrounding both properties, and (3) a common roof. On the other hand, the structures have separate basements, heating systems, doorways and garages, are taxed separately, and have different addresses. Also, separate work permits were issued for each building and allow only one- or two-family residential use. These disputed and conflicting facts and circumstances raise a legitimate fact dispute about the availability of the one- to two-family dwelling exemption under the Labor Law (Khela v Neiger, 85 N.Y.2d 333).

There may also be an issue of fact as to the commercial versus residential nature of the improvements (see, Van Amerogen v Donnini, 78 N.Y.2d 880, 883). All in all, neither party was entitled to summary judgment on the exemption issue on this record.

Additionally, for the reasons stated by the Appellate Division, plaintiff's common-law negligence cause of action was properly dismissed.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.