JOHN MANDELOS, & C., APPELLANT v. KOUZINIA KARAVASIDIS, RESPONDENT, v. JOHN
CHIMNEY CONSTRUCTION, INC. THIRD-PARTY RESPONDENT
86 N.Y.2d 767, 655 N.E.2d 174, 631 N.Y.S.2d 133
July 6, 1995
2 No. 289 SSM 37 (1995 NY Int. 188)
Decided July 6, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Mitchell R. Friedman, for Appellant.
Submitted by James M. Furey, for third-party Respondent.
Submitted by John P. Coogan, for Respondent.
MEMORANDUM:
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), 2 41).
The record discloses a triable issue of fact, at least regarding the
threshold "one or two family dwelling" qualification. Defendant's two
2-family semi-attached structures at issue enjoy arguably unifying
features, which preclude summary judgment in this case. The record
shows that after renovations, durin g which plaintiff fell and was
injured, these semi-attached 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 ha nd, 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 disp
uted and conflicting facts and circumstances raise a legitimate fact
dispute about the availability of the 1- to 2family dwelling exemption
under the Labor Law (Khela v Neiger, 85 NY2d 333).
There may also be an issue of fact as to the commercial versus
residential nature of the improvements (see, Van Amerogen v Donnini,
SNIPPETS:
JOHN MANDELOS, & C., APPELLANT v. KOUZINIA KARAVASIDIS, RESPONDENT, v. JOHN
CHIMNEY CONSTRUCTION, INC. THIRD-PARTY RESPONDENT
This memorandum is uncorrected and subject to revision before publication in the New York
for Appellant.
The order of the Appellate Division should be modified, without costs, by denying summary
The record discloses a triable issue of fact, at least regarding the threshold "one or two
The record shows that after renovations, durin g which plaintiff fell and was injured, these
On the other ha nd, the structures have separate basements, heating systems, doorways and
These disp uted and conflicting facts and circumstances raise a legitimate fact dispute about
There may also be an issue of fact as to the commercial versus residential nature of the
neither party was entitled to summary judgment on the exe mption issue on this record.
Additionally, for the reasons stated by the Appellate Division, plaintiff's common law
On review of submissions pursuant to section 500.4 of the Rules, order modified, without
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick conc ur.
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