Gernstl v. Edwards

Order unanimously affirmed with costs. Memorandum: Defendants appeal from an order that granted partial summary judgment to plaintiff under Labor Law §§ 240 and 241 and denied defendants’ cross motion to dismiss plaintiffs complaint. The primary issue on appeal is the scope of the statutory exemption from strict liability under sections 240 and 241 of the Labor Law for owners of one- and two-family dwellings. Supreme Court found that defendants were not exempt from strict liability. We agree.

Defendants are the owners of a commercial dairy farm and reside in a single-family dwelling thereon. In May 1988, they entered into a contract for the construction of a pole barn which they needed for additional storage space in the operation of their farm. Plaintiff, an 18-year-old laborer employed by the contractor, was severely injured when he fell while working on the roof of the barn. It is undisputed that neither defendants nor the contractor supplied any safety equipment or devices at the worksite.

In Balduzzi v West (144 AD2d 1036, Iv dismissed 74 NY2d 650), this court affirmed a decision of Supreme Court, Onondaga County, which held that the owners of one- and two-family residences were exempted from responsibility to provide safe working conditions deemed appropriate for owners of commercial property and those engaged in building construction and repair (Balduzzi v West, 141 Misc 2d 944, 946). In that case, however, the plaintiff was injured while working on a barn located on the grounds of defendants’ residence, to be used for noncommercial storage. The exception for owners of one- and two-family dwellings is not applicable here, however, where it is clear that plaintiff was injured while constructing a pole barn which was to be used for commercial purposes. Thus, we affirm the grant of partial summary judgment to plaintiff on the issue of liability under the Labor Law. In view of this determination, it is unnecessary to address the issues raised concerning section 200 of the Labor Law. (Appeal from order of Supreme Court, Allegany County, Feeman, J.—summary judgment.) Present—Callahan, J. P., Doerr, Boomer, Green and Balio, JJ.