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Mandelos v. Karavasidis

Court of Appeals of the State of New York
Jul 6, 1995
655 N.E.2d 174 (N.Y. 1995)

Summary

finding a triable issue of fact as to whether two semiattached buildings each containing two separate apartments constitute separate family dwellings

Summary of this case from Patino v. Drexler

Opinion

Decided July 6, 1995

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Eugene J. Berkowitz, J.

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.


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; § 241).

The record discloses a triable issue of fact, at least regarding the threshold "one- or two-family dwelling" qualification. 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.

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

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


Summaries of

Mandelos v. Karavasidis

Court of Appeals of the State of New York
Jul 6, 1995
655 N.E.2d 174 (N.Y. 1995)

finding a triable issue of fact as to whether two semiattached buildings each containing two separate apartments constitute separate family dwellings

Summary of this case from Patino v. Drexler
Case details for

Mandelos v. Karavasidis

Case Details

Full title:JOHN MANDELOS, Appellant, v. KOUZINIA KARAVASIDIS, Defendant and…

Court:Court of Appeals of the State of New York

Date published: Jul 6, 1995

Citations

655 N.E.2d 174 (N.Y. 1995)
655 N.E.2d 174
631 N.Y.S.2d 133

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