Opinion
5747N Index 161738/14
02-15-2018
Ramon DOMIGUEZ, Plaintiff–Appellant, v. BARSALIN, LLC, et al., Defendants–Respondents. [And a Third–Party Action]
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Kaufman, Dolowich & Voluck, LLP, Woodbury (Megan E. Yllanes of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Kaufman, Dolowich & Voluck, LLP, Woodbury (Megan E. Yllanes of counsel), for respondents.
Friedman, J.P., Tom, Mazzarelli, Singh, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered December 3, 2015, which, insofar as appealed from as limited by the briefs, granted the motion of defendants Alfred Shtainer and Victoria Shtainer (the Shtainers) for summary judgment dismissing the action as against them, unanimously affirmed, without costs.
The Shtainers established entitlement to judgment as a matter of law pursuant to the homeowner exception to Labor Law §§ 240(1) and 241(6). Defendants showed that they were never at the residence while it was under demolition/construction, had no role in the work, and intended to use the premises as a family vacation home (see Del Carmen Diaz v. Bocheciamp, 140 A.D.3d 408, 33 N.Y.S.3d 218 [1st Dept. 2016] ; Patino v. Drexler, 116 A.D.3d 534, 984 N.Y.S.2d 38 [1st Dept. 2014] ). Nothing in the house plans indicates that any portion would be for commercial use, and plaintiff's speculation that it might be rented during those time periods when the Shtainers were not in residence there, without any evidentiary support for that statement, is insufficient to defeat summary judgment (see Del Carmen Diaz at 409, 33 N.Y.S.3d 218 ).
We have considered plaintiff's remaining arguments, and find them unavailing.