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The homeowner's exemption was "intended by the Legislature to shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law [and] reflect the legislative determination that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection" Bartoo v Buell, 87 NY2d at ; see Affri v Basch, 13 NY3d , []; Hook v Quattrociocchi, AD2d , [].

Rather, the exemption depends upon the site and purpose of the work" Facteau v Allen, AD2d , [] [citations omitted]; see Sanchez v Marticorena, AD3d , []. Under the "flexible 'site and purpose' test" Bartoo v Buell, 87 NY2d at , the use of a defendant's residence as a rental, bed and breakfast or group home does not necessarily extinguish the exemption see Sanchez v Marticorena, AD3d at ; Ramirez v Begum, 35 AD3d , [], lv denied 8 NY3d []; Facteau v Allen, AD2d at ; Yerdon v Lyon, AD2d , [], lv denied 94 NY2d []; but cf.

Bagley v Moffett, AD3d , [] [no homeowner's exemption where the defendants failed to establish that they used the premises as their residence after.

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Here, there were two buildings on the property, a barn and a two-story "salt-box" house. There was only one room on the entire premises that was rented as a sleeping unit for the bed and breakfast, and that room was located in a renovated portion of the barn.

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The roof work was limited to the house. Christman has owned and lived at the premises since She testified that her full-time primary residence was in the house, and the second floor of the house was totally off limits to guests.

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Guests were served breakfast on the first floor of the house, where the kitchen was also located. Defendants' contention that there were also books available for guests on the first floor of the house and that Christman took business phone calls in the house does not establish the house as primarily commercial. Although the house had a mixed purpose, the roof work on the house was "directed at preserving the integrity of the structure itself and primarily benefitted [Christman's] clearly residential use of the premises" Stone v Altarac, AD2d , [].

Plaintiffs' assertion that Christman wanted the wood preservative added to the new roof allegedly because she was considering attempting to sell the premises does not change the result.

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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] hopes for the future" Allen v Fiori, AD2d , []; see Truppi v Busciglio, 74 AD3d , []. Enter your email.

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  • Feilen v Christman Annotate this Case. This opinion is uncorrected and subject to revision before publication in the Official Reports. And a Third-Party Action.

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    After losing control of his vehicle, Feilen struck the high tension cables in the center of the median and was thrown off of his motorcycle. He hit the a post supporting the cables and suffered massive head trauma. Police said he was declared dead at the scene.

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    The driver of the Lincoln fled the scene and has not been found. He will be charged with failure to stop and render aid-death.

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