Opinion
May 23, 1996
Appeal from the Supreme Court, Bronx County (Luis Gonzalez, J.).
We agree with the IAS Court that the applicability of the exemption contained in Labor Law § 240 for owners of one-family and two-family dwellings is established as a matter of law, inasmuch as the home was constructed as a two-family dwelling and only one floor was rented to tenants, with other members of defendants' family residing in other areas of the home. The purpose of the exemption from Labor Law coverage for one-family and two-family homeowners was to make the law more reflective of the practical realities, since it would be unrealistic to expect such homeowners to realize, understand and insure against the responsibility imposed by the Labor Law ( Cannon v. Putnam, 76 N.Y.2d 644, 649-650). Further, there is here no showing that the defendant homeowners controlled or supervised the work performed by plaintiff. That the homeowner suggested borrowing a ladder from a neighbor, or the day before the accident helped to clear debris from an adjoining lot, is an insufficient predicate to render the homeowner liable ( see, Pesa v. Ginsberg, 186 A.D.2d 521).
Finally, there is insufficient evidence demonstrating that defendants were, or should have been, aware of a visible and apparent defect in the flashing which contributed to this accident as would constitute constructive notice of a defect and allow for liability under common-law negligence or Labor Law § 200 ( see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836).
Concur — Rosenberger, J.P., Wallach, Kupferman, Ross and Williams, JJ.