State of New York
Supreme Court : County of Monroe

- against -

Index No. 96/11473

ANDREW V. SIRACUSE, J.

Labor Law § 240(1), the "Scaffold Law", imposes absolute liability for certain construction injuries upon owners and general contractors, "except owners of one and two-family dwellings who contract for but do not direct or control the work". This Labor Law case presents in the purest form an issue arising out of this exception.

Plaintiff Gerard Lynch was injured on March 3, 1996, while replacing a roof on a building owned by the defendant. There are no issues of fact as to the happening of the accident and no genuine defense as to the general applicability of Labor Law 240(1). Further, the plaintiffs make no claim that the defendant in any way exercised direction or control over the work, and liability is therefore a product of the statute alone.

The sole issue before the court is whether the structure on which Mr. Lynch was working is a one-family dwelling. This issue is dispositive. If the defendant is entitled to the exemption the complaint must be dismissed, and if it is not so entitled the plaintiffs are entitled to partial summary judgment on liability. For the reasons set out below the Court finds for the plaintiffs.

The defendant argues that since the building houses the living quarters of the church's priest, Father Upson, it is a single-family residence; and throughout the defendant's papers the building is referred to as the rectory. The plaintiffs argue that the building -- which they term the "parish center" -- is a multi-purpose church facility that contains only a small area devoted to residential use. Father Upson's quarters occupy less than ten percent of the building's total floor space. For this, among other reasons, the plaintiffs contend that the exemption ought not to apply.

Immaculate Conception is an old parish, located in the Corn Hill district of the City of Rochester, and like many older parishes has large underutilized buildings. The structure at issue contains some twenty rooms plus five or six bathrooms and the available space in the building totals close to 12,000 square feet. Until a few years ago it was used as a convent for the Sisters of Saint Joseph, and during that time the priest lived in a separate rectory. In 1994 the remaining nuns departed, the rectory was sold, and the building was converted to its current use. The priest occupies two rooms on the second floor and uses the kitchen, some living space and an office on the first floor. The eight other bedrooms and four other bathrooms on the second floor are unused, except when priests are visiting. Other office space, meeting rooms, and a living room on the first floor are used for a secretary, occasional parish meetings, and a ten-hour-per-week assistant. According to Father Upson's deposition, all parish meetings are held in the building's office and meeting rooms, and all records are stored there. Is this a single-family residence or not? The plain meaning of the exception's language is less than helpful. A speculative developer contracting to build a suburban development may own the entire subdivision until the houses are offered for sale. Although he would literally have been the owner of each single-family residence he is not insulated from liability; only the subsequent residential purchasers would be.

The Law Revision Commission recommended the exception be enacted because homeowners "who are not in a position to know about, or provide for the responsibilities of absolute liability" should not be subject to the statute, and the Court of Appeals has stated that the exemption was intended to "reflect the practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes" (Cannon v Putnam, 76 NY2d 644, 649). This policy would appear to favor the plaintiffs, because the defendant, while owning what might be characterized as a single-family residence, cannot be considered a "homeowner" any more than the developer could be

It is settled, however, that a rectory or minister's residence owned by a religious institution is entitled to the exception as long as the residential use is exclusive (Pigott v Holy Infancy Church, 179 AD2d 161; Mascia v Immaculate Heart of Mary R.C. Church Society, Sup Ct., Erie County, Oct. 30, 1990, affd 178 AD2d 1023). When the residential use is combined with other, non-residential purposes, the issue becomes the "site and purpose" of the work which gave rise to the accident.¹ In the words of the Appellate Division, First Department, in a recent case involving church property:

It is clear that the rectory here is, first and foremost, the residence of the parish priests. The mere fact that parts of the rectory are used for nonresidential purposes in connection with certain Church-related work does not automatically deprive the Church of the benefit of the exemption. Rather, where a single structure is used for both residential and commercial or business purposes, the site and purpose of the injured plaintiff's work must be analyzed in order to determine whether the exemption applies (Bartoo v. Buell, 87 NY2d 362; see, Cannon v. Putnam, 76 NY2d 644). Where the work contracted for relates to the residential nature of the premises--even if the work will fortuitously benefit the commercial use of the premises--the exemption is applicable. In both Bartoo and its companion case, Anderson v. Flanagan, the subject structures were used for an ongoing business in addition to their residential purposes. Nonetheless, the Court of Appeals found that, in each case, the work contracted for related to the residential nature and use of the structure, and the exemption was therefore available to the owners.

In the case before us, the work contracted for--the replacement of two windows in the parish house kitchen--was wholly related to the residential nature of the rectory; the kitchen served no purpose in connection with the incidental Church business conducted on the premises. Under Bartoo and Anderson, therefore, the defendant is entitled to invoke the benefit of the statutory exemption Muniz v Church of Our Lady of Mt. Carmel, __AD2d__, 655 NYS2d 38, 39-40).

In the present case, however, the work related to the structure as a whole; it was replacement of the entire roof. The "site and purpose" test, then, returns the Court to the character of the building itself. If it is primarily a residence -- and only then -- the work would primarily relate to residential use; and vice versa.

As noted above, the actual living space occupied by Father Upson is a small percentage of the building's floor area. In other respects the building is used as a meeting hall, office, and records center. The structure itself was clearly never intended by either its architects or builders as a single-family residence, although this need not be determinative; but the history of the building's use and its very partial conversion to its present state leads the court to conclude that it has never acquired the character of a single-family home. It is, instead, what it has always been: a church building where various church-related activities are carried out. Within recent years an apartment for the incumbent priest was created out of some of the rooms vacated by the Sisters of Saint Joseph. This apartment, however, does not transform the entire building so as to bring it within an exception intended by the Legislature to benefit homeowners.

The plaintiffs, then, are entitled to partial summary judgment on liability, dismissing the defense based on the single-family exemption. Plaintiffs' counsel may prepare the order. Any discovery required on the plaintiffs' damages must be completed within ninety days of that order's entry, and a note of issue must be filed at the end of that period.

DATED: Rochester, New York

August 8, 1997

Andrew V. Siracuse, J.S.C.

Note 1. It should be noted that the non-profit nature of the defendant in the present case does not relieve it from liability. Only "residences" are exempt, and the commercial or noncommercial use of a property outside the exception is beside the point as long as the use is not residential. This Court declines to follow Pigott v Holy Infancy Church to the extent that it suggests otherwise .

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