Harper v. Austin

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiff’s motion for partial summary judgment and that part of defendant’s cross motion for summary judgment on the Labor Law § 240 (1) cause of action. The record contains conflicting proof whether the work resulting in plaintiffs injury was undertaken to prepare the building for commercial or residential purposes (see, Lombardi v Stout, 80 NY2d 290, 296-297). Thus, there is “a legitimate fact dispute about the availability of the one- to two-family dwelling exemption under the Labor Law” (Mandelos v…