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
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.


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, 78 NY2d 880, 883). All in all, 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 negligence cause of action was properly dismissed.

On review of submissions pursuant to section 500.4 of the Rules, order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick conc ur.

Decided July 6, 1995