WAYNE P. SAITTA, J.

Plaintiff, GHULAM RASUL, (hereinafter "Plaintiff"), moves this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Defendants, WILLIAM MEAKENS and SARAH MEAKENS, (hereinafter "Defendants"), and Defendants cross move this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against Plaintiff, and for such further relief as this Court deems just and proper.

Upon reading the Notice of Motion by Michael A. Ciaffa, Esq., Attorney for Plaintiff, GHULAM RASUL, dated July 28th, 2008, together with the Affirmation of Michael A. Ciaffa, dated July 28th, 2008, and all exhibits annexed thereto; the Affirmation in Opposition to Plaintiff's Motion for Partial Summary Judgment by Mark A. Longo, Esq., Attorney for Defendants, WILLIAM MEAKENS and SARAH MEAKENS, dated November 14th, 2008, and all exhibits annexed thereto; the Notice of Cross-Motion by Mark A. Longo, dated November 14th, 2008, together with the Affirmation in Support of Defendants' Cross-Motion for Summary Judgment, dated November 14th, 2008, and all exhibit annexed thereto; the Reply Affirmation in Support of Defendants' Cross-Motion for Summary Judgement of Mark A. Longo, dated December 3rd, 2008; the Plaintiff's Memorandum of Law (a) in Further Support of Plaintiff's Motion for Partial Summary Judgment on Liability; and (b) in Opposition to Defendants' Cross Motion for Summary Judgment to Dismiss Action of Michael A. Ciaffa; and after argument of counsel and due deliberation thereon, Plaintiff's motion for Summary Judgment is denied and Defendants' motion for Summary Judgment is denied for the reasons set forth below.

FACTS

Plaintiff, Ghulam Rasul, commenced this suit against Defendants to recover for personal injuries he sustained when he allegedly fell from an unsecured ladder while fixing a leak on Defendants' roof located on Prospect Place, Mount Vernon, NY (hereinafter "the premises").

Plaintiff states that on January 9th, 2007, he was working on one of Defendants' properties when Mr. Meakens informed him that there was a leak at another of Defendants' buildings. Plaintiff then states that he and Mr. Meakens loaded Defendant's ladder into Plaintiff's van and he followed Meakens to the premises.

It is disputed as to whether Plaintiff set up the ladder alone or with Meakens' assistance. Defendant Meakens supplied Plaintiff with the ladder and the patching material, and then showed him the location in the roof he wanted patched.

Plaintiff ascended the ladder to commence the work. He was working for approximately ten to fifteen minutes before he fell. Meakens had been walking around the premises and was returning to where Plaintiff was working when Plaintiff began to fall.

ARGUMENTS

Plaintiff moves for partial summary judgment as to liability under the Labor Law § 240(1) as he was working on a ladder at the time of the loss. Defendants cross move on the issue of liability, asking the court to dismiss Plaintiff's claims under § 240(1), § 241(6), § 200 and common law claims.

Plaintiff argues he is entitled to summary judgment on liability as he fell from an unsecured ladder and was not provided with safety devices.

Plaintiff contends that Defendants are not entitled to the exception to absolute liability under the Labor Law for owners of a one or two-family dwelling as Defendants do not live at the premises where the accident took place.

Plaintiff also argues that Defendant William Meakens exercised direction and control over Plaintiff's work which provides a separate basis for the denial of the protections afforded by the homeowner's exception.

Defendants state that they are not liable for Plaintiff's injuries. They argue they are exempt from the absolute liability provisions of the Labor Law as the owners of a one or two-family dwelling in which the property is solely used for residential purposes. They further argue that they neither directed nor controlled Plaintiff's work.

ANALYSIS

The protection of the homeowner's exemption to absolute liability under the Labor Law for injuries sustained to a worker is available to the owners of one and two-family dwellings who contract for, but do not direct or control, a contractor's work. Labor Law § 240(1), § 241(6).

The exemption was created in part to protect homeowners who were "not in a position to know about, or provide for the responsibilities of absolute liability". Van Amerogen v. Donnini, 78 NY2d 880 (1991), citing Mem of NY Law Rev Commn, op. Cit. At 1658. To whom the exemption should be afforded has been the subject of much interpretation. Exactly who the legislature intended to protect with the exemption is not addressed in its language. Courts have considered different factors in determining which homeowner is entitled to the exemption, such as the nature and purpose of the work being contracted for, the commercial versus residential use of the property, and whether the homeowner resides in the premises in question.

Part of the confusion stems from the use of the phrase "commercial use" to describe renting out residential units to tenants. Thus while the tenant's use is residential, the owner is using it commercially in the sense that it produces income.

On one hand it is clear that the exemption is not applicable where both units of a two family house are rented out, even for residential purposes.

The majority opinion by the Court of Appeals in Van Amerogne v. Donnini, 78 NY2d 880 (1991), established that the homeowner's exception was not applicable where "the purpose in making renovations was to prepare the house for commercial rental". In Van Amerogne, the homeowner intended to, and subsequently did, rent the house to two families who used it for residential purposes. The Court of Appeals again addressed the issue in Lombardi v Stout, 80 NY2d 290, (1992). The Lombardi Court stated with particularity that the exemption "was not intended to insulate [homeowners] who use their one and two-family houses purely for commercial purposes", as rental property. In Lombardi, the property was not generating rental income at the time of the accident, but it was held the owner was not entitled to the exemption as he was upgrading the property"for possible future rental", which would constitute a commercial purpose. (In fact, it was later rented to two families for residential use.)

In Sweeney v. Sanvidge, 271 AD2d 733, (3rd Dept 2000), the Third Department followed the Lombardi Court finding that by renting their units to residential tenants, "defendants' use of the subject two-family residence is . . purely commercial and the statutory exception is not available to them." Id., at 735.

On the other hand, the exemption is generally applicable where an owner lives in one of the units even where the other is rented out.

The First Department, in Ortiz v. Pena, 227 A.S.2d 297, (1996) held that since the homeowners resided in one of the two floors of the building, they were entitled to the exception, for one or two family dwellings finding the exemption was established "as a matter of law".

The Fourth Department in Hosler v. Northern Eagle Beverages, Inc. ,15 AD3d 925 (4th Dept 2005), held that despite the fact that the homeowner lived in the house with her rent paying brother, and had a tenant in an apartment above her garage, "the house was structurally a single-family residence, and defendant's brother did not have separate living quarters" from the owner. Accordingly, the Court reasoned that the installation of a satellite dish "directly relate[d] to the residential use of the home", despite the shared commercial purpose of renting to tenants. Although the decision did not explicitly state that the homeowner's occupancy was the basis for the grant of the exemption, it was the residential as opposed to commercial nature of its use, that is, homeowner occupancy rather than rental to outside party, which provided the basis for the opinion.

In Ramirez v. Begum , 35 AD3d 578, (2nd Dept 2006), the Second Department held that since the defendants resided within the two family dwelling and rented part, the renovations were not exclusively for commercial purposes. The Second Department reasoned "the replacement of the siding of the exterior of the house directly relate[d] to the residential use of the home' since the defendants reside in the two-family dwelling. Thus, the defendants established their prima facie showing that they were entitled to the protection of the homeowners' exemption as a matter of law." (Internal citations omitted.)

In Castro v Mamaes , 51 AD3d 522 (1st Dept 2008), the First Department held that where the house was used residentially by one co-owner the exemption was also available to the non-resident co-owner. In Castro, a mother and her two sons resided in the single family home. When the mother entered a nursing home, she transferred title to her two sons, retaining a life interest. When eventually one of the sons moved out, the remaining son did not pay rent to his brother, nor did the property generate any income.

Although the Castro Court discussed the argument that the non resident co-owners should not be entitled to the exemption based upon their non residence, the First Department stated, "[w]e reject that argument because the key circumstance in applying the exemption is not an owner's residential status but the residential nature of the site and purpose of the work'". Sheehan v Gong , 2 AD3d 166 , 169, quoting Khela v Neiger, 85 NY2d 333, 337). The home only ever served as a residence to the owner's family members. The Court stated "[h]ere, the site, at all relevant times, has never served any commercial purpose, let alone an exclusively commercial purpose".

The Second Department in Chowdhury v. Rodriguez , 57 AD3d 121 , (2nd Dept 2008) held the exemption applied where defendants lived in one unit and rented out the other, finding that "there was no admissible evidence that the premises were utilized as anything other than a two-family home, with the [defendants] occupying one side and Almonte occupying the other side."

The present case falls somewhere between the situation where the entire building is rented out and where the owners reside in one of the units.

In this case, at the time of the accident, Defendants owned the premises located on Prospect Avenue, Mount Vernon, but did not reside there. The occupants of the building were Defendants' daughter, and her family, and a tenant unrelated to the family.Defendants have made no allegation that the daughter is the owner of the building and so this is not a situation as in Castro where one of the co-owners resides in the building. It is undisputed that the Defendants, the owners, do not reside in the premises.

It is clear from the deposition testimony that the building consisted of two apartments that were occupied by separate households.Although it is also clear that Defendants were collecting rent from the tenant named Miller, it is not clear as to whether Defendants were collecting rent from their daughter and her family.

If the daughter and her family were paying rent to Defendants, then the building would be being used for a purely commercial purpose. If they were not, and they resided in the apartment merely as part of Defendants' family, then the occupancy would be residential in nature, and not commercial.

Absent additional information as to the nature of the daughter's tenancy, there remains a question of fact as to whether the property is being used for purely commercial purposes.

The second prong of the test to determine whether the Defendants are entitled to the homeowner's exemption is whether Defendants directed or controlled Plaintiff's work. As to this issue, as discussed more fully below, there remain facts in dispute. Therefore Plaintiff's motion for summary judgment and Defendants' cross-motion for summary judgment as to the claims under § 240(1) and § 241(6) must be denied.

Defendants also cross-move for the dismissal of Plaintiff's claims under Labor Law § 200 and common-law negligence. Labor Law § 200 is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work.

Labor Law § 200 has "two disjunctive standards for determining a property owner's liability. The first is the authority to supervise the work when a plaintiff's injury arises out of defects or dangers in the methods or materials of the work. The second standard is applicable to worker injuries arising out of the condition of the premises rather than the methods or manner of the work". Chowdhury v. Rodriguez , 57 AD3d 121, 867 NYS2d 123 (2nd Dept 2008).

At issue here is not a condition of the premises but the supervision of the manner of work.

Defendants herein argue that they in no way directed or controlled Plaintiff's work. They argue that merely allowing Plaintiff to use Defendants' ladder and pointing out where the work needed to be done does not rise to a level sufficient to constitute control or direction of Plaintiff's work.

Plaintiff responds that Defendant William Meakens did in fact direct and control Plaintiff's work. Defendant William Meakens told Plaintiff where the leak was, provided Plaintiff with the ladder and the materials necessary to complete the job, and observed Plaintiff's work, directing him to check other areas for leaks. Plaintiff states that Meakens helped him placed the ladder, a point which Defendant disputes. It is, however, undisputed that Defendant William Meakens told Plaintiff it was okay to place a portion of the ladder on the neighbors adjoining property.

It is unclear on the facts as to whether Defendant William Meakens merely informed Plaintiff as to what work was to be done, or whether he actually directed and exercised control over how the Plaintiff performed the work. Accordingly, summary judgment is improper on the Labor Law § 200 and the common-law negligence claims.

WHEREFORE, by reason of the foregoing, Plaintiff's Motion for Summary Judgment against the Defendants is herein denied and the Defendants' cross motion for summary judgment against the Plaintiff is herein denied.

This constitutes the decision and order of the Court.