Allen v. Fiori, 277 A.D.2d 674 (N.Y. App. Div. 3d Dep't 2000). · Go Syfert
Allen v. Fiori, 277 A.D.2d 674 (N.Y. App. Div. 3d Dep't 2000). Cases Citing This Book View Copy Cite
18 citation events (18 in the last 25 years) across 1 distinct court.
Cited for
At page 675 Applying the use and purpose test to homeowner intentions6 citing cases“the use and purpose test must be employed on the basis of the homeowners' intentions at the time of the injury underlying the action . . . .”2 citing courts quote it · 5 listed here
  • Gonzalez v. Romero, 178 A.D.3d 1401 (N.Y. App. Div. 4th Dep't 2019).published
    The fact that commercial use had not yet begun is of no moment because "the use and purpose test must be employed on the basis of the [ ]owners' [*2]intentions at the time of the injury underlying the action" ( Allen v Fiori , 277 AD2d 674…
  • Feilen v. Christman, 135 A.D.3d 1130 (N.Y. App. Div. 3d Dep't 2016).published 2 cites
    She undisputedly resided full time in the house at the time of the accident and “the use and purpose test must be employed on the basis of the homeowner [’s] intentions at the time of the injury underlying the action and not [his or her] h…
  • Truppi v. Busciglio, 74 A.D.3d 1624 (N.Y. App. Div. 3d Dep't 2010).published
    Its application turns on the site and the purpose of the work (see Bartoo v Buell, 87 NY2d at 368 ; Cannon v Putnam, 76 NY2d 644, 650 [1990]; Stone v Altarac, 305 AD2d 849, 849-850 [2003]), a test which “must be employed on the basis of th…
  • Dineen v. Rechichi, 70 A.D.3d 81 (N.Y. App. Div. 4th Dep't 2009).published
    It is well established that the “site and purpose” test “must be employed on the basis of the homeowners’ intentions at the time of the injury underlying the action” (Allen v Fiori, 277 AD2d 674, 675 [2000]; see Davis v Maloney, 49 AD3d 38…
  • Davis v. Maloney, 49 A.D.3d 385 (N.Y. App. Div. 1st Dep't 2008).published
    It does not avail defendant to assert that she and her husband ultimately decided not to follow through with the business of growing and selling hay. “[T]he use and purpose test must be employed on the basis of the homeowners’ intentions a…
At page 674 Determining availability of dwelling-owner exemption6 citing casesMercure, J. P. Appeal from an order of the Supreme Court (Caruso, J.), entered June 17, 1999 in Schenectady County, which granted defendants’ motion for…opening of page *674 (no citing court says what it cites this page for) · 5 listed here
  • Sanchez v. Marticorena, 103 A.D.3d 1057 (N.Y. App. Div. 3d Dep't 2013).published 2 cites
    Accordingly, we are of the view that no issues of fact exist that would prevent a determination, as a matter of law, that the homeowner’s exemption applied (see Bartoo v Buell, 87 NY2d at 368-369 ; Allen v Fiori, 277 AD2d 674, 674 [2000];…
  • Hoesen v. Dolen, 94 A.D.3d 1264 (N.Y. App. Div. 3d Dep't 2012).published
    Application of the exemption does not require that these matters be shown, but is instead based “on the site and purpose of the work” (Allen v Fiori, 277 AD2d 674, 674 [2000]; see Bartoo v Buell, 87 NY2d 362, 368 [1996]) and on whether the…
  • Landon v. Austin, 88 A.D.3d 1127 (N.Y. App. Div. 3d Dep't 2011).published
    The availability of the exemption hinges upon “the site and the purpose of the work, a test which must be employed on the basis of the homeowners’ intentions at the time of the injury underlying the action” (Truppi v Busciglio, 74 AD3d 162…
  • Lenda v. Breeze Concrete Corp., 73 A.D.3d 987 (N.Y. App. Div. 2d Dep't 2010).published
    The “site and purpose” test is “employed on the basis of the homeowners’ intentions at the time of the injury underlying the action and not their hopes for the future” (Allen v Fiori, 277 AD2d 674, 674, 675 [2000]; see Dineen v Rechichi, 7…
  • Nudi v. Schmidt, 63 A.D.3d 1474 (N.Y. App. Div. 3d Dep't 2009).published
    Nor have they demonstrated that they were undertaking the expansion in connection with their own personal use of the cottage in the future (cf. Khela v Neiger, 85 NY2d 333, 338 [1995]; Sheehan v Gong, 2 AD3d 166, 169 [2003] ), or that they…
Retrieving the full opinion text from the archive…
Richard C. Allen
v.
Leonard Fiori, Jr.
Appellate Division of the Supreme Court of the State of New York.
Nov 16, 2000.
Published opinion
277 A.D.2d 674
2000 N.Y. App. Div. LEXIS 12046
Mercure.
Cited by 16 opinions  |  Published
Mercure, J. P.

Appeal from an order of the Supreme Court (Caruso, J.), entered June 17, 1999 in Schenectady County, which granted defendants’ motion for summary judgment dismissing the complaint.

Defendants Leonard Fiori, Jr. and Frances Fiori (hereinafter collectively referred to as defendants) owned real property in the Town of Rotterdam, Schenectady County, which was improved with a single-family residence, a tool shed and a two-story carriage house. Plaintiff Richard C. Allen (hereinafter plaintiff) was hired to perform repair and renovation work on the property and was injured when he fell from scaffolding while painting the exterior of the carriage house. Plaintiffs commenced this action alleging, as relevant to this appeal, violations of Labor Law § 240 (1) and § 241 (6). Following joinder of issue and completion of depositions, defendants moved for summary judgment dismissing the complaint. Plaintiffs opposed the motion only to the extent of contesting defendants’ entitlement to the statutory exemption from liability under Labor Law § 240 (1) and § 241 (6) as owners of a one or two-story dwelling who did not direct or control the work. Supreme Court granted the motion and this appeal ensued.

We affirm. Whether the dwelling-owner exemption is available to an owner turns on the site and purpose of the work (see, Bartoo v Buell, 87 NY2d 362, 368; Cannon v Putnam, 76 NY2d 644, 650), The evidence submitted on the summary judgment motion shows that, although the second story of the carriage house had once been divided into two apartments, at the time of plaintiff’s injury, those areas were uninhabitable. In[*675] fact, the building had no electrical, plumbing, septic or heating systems and was being used solely to store defendants’ possessions. Disputing none of the foregoing, plaintiffs opposed the summary judgment motion with some evidence of defendants’ inchoate plan to convert the structure to a commercial use at some future time and in that light portray plaintiffs exterior painting work as but a first step in that endeavor. We are not persuaded. Clearly, the use and purpose test must be employed on the basis of the homeowners’ intentions at the time of the injury underlying the action and not their hopes for the future. Here, the record is devoid of evidence of any ongoing conversion effort at the time of plaintiffs accident (cf., Lombardi v Stout, 80 NY2d 290, 296-297). Rather, the evidence establishes that the purpose of the work plaintiff was engaged in at the time of his accident was merely to coordinate the color of the carriage house to the main house, an overall home improvement measure (see, Vliet v Alweis, 227 AD2d 853, 854).

As a final matter, the assertion that defendants’ business acumen and sophistication deprives them of the statutory exemption is found to be lacking in merit (see, Sweeney v Sanvidge, 271 AD2d 733, 734-735). The parties’ remaining contentions either need not be considered or have been found to be lacking in merit.

Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.