
    Herbert Van Amerogen, Jr., et al., Appellants, v Samuel Donnini et al., Respondents.
    Argued April 23, 1991;
    decided June 6, 1991
    
      APPEARANCES OF COUNSEL
    
      George L. Sarachan and Robert M. Cohen for appellants.
    
      John H. Hanrahan, 3d, for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendants’ motion for summary judgment denied.

Plaintiff was injured when he fell from a porch roof of a four-bedroom house. He had been hired to repair the roof by defendant Samuel Donnini, whose wife, Marsini Donnini, owned the property. She had purchased it in 1970 and since that time continuously used the house solely for rental to college students.

A divided Appellate Division reversed Supreme Court’s denial of defendants’ motion for summary judgment in this action for damages resulting from a claimed violation of Labor Law §§ 240 and 241. That court concluded that neither the fact that the student-occupants were unrelated and thus did not constitute a "family”, nor the fact that the owners did not occupy the property themselves but held it solely for commercial gain, excluded them from the benefit of the provisions of Labor Law §§240 and 241 which exempts from the strict liability of that statute "owners of one and two-family dwellings who contract for but do not direct or control the work [performed in relation to such dwellings].”

We recently noted in Cannon v Putnam (76 NY2d 644) that although the Legislature has not defined the terms "one or two family dwellings” it is clear that in exempting "owners of one and two-family dwellings who contract for but do not direct or control the work,” from the duties imposed by Labor Law § 240 (1) and § 241, the Legislature intended to relax the harsh strict liability rule of that statute as against such owners because " '[i]t is unrealistic to expect the owner of a one or two family dwelling to realize, understand and insure against the responsibility sections 240 and 241 now place upon him’ ” (Cannon v Putnam, 76 NY2d, at 649-650, quoting Mem of NY Law Rev Commn, 1980 McKinney’s Session Laws of NY, at 1657). We noted that the exemption was added because the Legislature sought to make the law "fairer and * * * more nearly reflect the practical realities governing the relationship between homeowners and the individuals they hire to perform construction work on their homes” (id.). These owners were perceived as lacking in sophistication or business acumen and "not in a position to know about, or provide for the responsibilities of absolute liability” (see, Mem of NY Law Rev Commn, op. cit, at 1658). However, the exemption from the strict liability of Labor Law §§ 240 and 241 for one and two-family homeowners is an exception to the clear legislative intent to "protect[ ] workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner’ ” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520, quoting 1969 NY Legis Ann, at 407) and as such, may properly be extended "only so far as [the] language [of the exception] fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception” (McKinney’s Cons Laws of NY, Book 1, Statutes § 213; see, Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, affd 61 NY2d 652).

Accordingly, we find no basis for concluding that this exemption should be expanded to encompass homeowners who use their one or two-family premises entirely and solely for commercial purposes and who hardly are lacking in sophistication or business acumen such that they would fail to recognize the necessity to insure against the strict liability imposed by the statute. Such owners do not fall within the class protected by the exemption (see, Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573).

The house in question here has always been used by these defendants exclusively for commercial purposes as income-producing rental property. There is record evidence that the bedrooms are rented to unrelated students individually, with each making rent payments separately to the owner-landlord. The tenants are responsible for the utilities, but repairs and maintenance are the responsibility of the landlord. Thus, rather than a "one [or] two-family [house]” as contemplated by the legislative exemption, the premises here is a commercial enterprise, a rooming house.

These defendants are quite unlike "[the] homeowner who hires someone to paint his own living-room ceiling [who should be accorded the statutory exemption from strict liability]” (Cannon v Putnam, 76 NY2d 644, 650, supra), and are not within the class of persons the Legislature sought to exempt from the strict liability provisions of Labor Law §§ 240 and 241.

Bellacosa, J.

(dissenting). Remedial legislation was enacted in 1980 (L 1980, ch 670, §§ 1, 2) to ameliorate the harshness and to narrow the scope of the strict liability imposed by Labor Law § 240 (1) and § 241, as interpreted by this Court in Haimes v New York Tel. Co. (46 NY2d 132) and Allen v Cloutier Constr. Corp. (44 NY2d 290, rearg denied 45 NY2d 776). "[O]wners of one and two-family dwellings” who contract for but do not direct or control a contractor’s work were specifically exempted from that strict liability doctrine (Labor Law § 240 [1]; § 241).

Defendant Marsini Donnini owns the one-family dwelling at issue and defendant Samuel Donnini, her husband, oversees its rental. Defendants own only two properties: their home in Cohoes, New York, in which they reside, and the dwelling at issue in Troy, New York, which they currently rent to college students. The Troy dwelling is not divided into apartments or separate living quarters; it has one kitchen, one bathroom, four bedrooms and a common living area. It is not a "commercial enterprise” and defendants are not "developer/owners of one and two-family houses constructed for resale” (majority mem, at 883, and n). Nevertheless, they are deprived of the 1980 remedial exemption by the majority’s statutory construction which inserts a "commercial use” disqualifier into the plain statutory language and creates a sweeping presumption of commercial sophistication attributed to all renting owners of one or two-family dwellings.

Unambiguous language in a statute must be construed to give effect to the plain meaning of the words used (see, Matter of Yong-Myun Rho v Ambach, 74 NY2d 318, 321-322; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 76, 94). The words of Labor Law § 240 (1) and § 241 are plain and have unmistakable import and history.

The Legislature chose language related only to the structural character of dwellings when it enacted protection specifically and simply for owners of "one and two-family dwellings” who do not direct or control work on the premises. Had the Legislature intended to further restrict the beneficial reach of the exemption it was enacting, it could have just as simply added a variety of qualifying clauses or words relating to a dwelling’s use, e.g., "occupied by the owner” or "not used for commercial purposes”. It did nothing of the kind. To the contrary, the inclusion of two-family dwellings in the exemption amendment unequivocally supports the conclusion that the Legislature contemplated at least partial commercial use without forfeiture of the exemption (see, Cannon v Putnam, 76 NY2d 644, 650 ["A homeowner who hires someone to paint his own living-room ceiling should be afforded the benefit of the statutory exemption from liability even if he also maintains a business on the property” (emphasis added)]; see also, Rivera v Revzin, 163 AD2d 896). Nevertheless, the majority concludes that owners who rent their one or two-family dwelling forfeit the remedial benefit the Legislature so plainly engrafted on the strict liability cause of action which it created. That conclusion clashes with proper statutory construction rules.

The majority advances the axiom that statutory exceptions are strictly construed. Competing with this rule of thumb, however, is the requirement that liberal construction be given to exemptions, such as those at issue in Labor Law § 240 (1) and § 241, which are remedial in nature (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 321). Moreover, the substantive rule of strict liability imposed by Labor Law § 240 (1) and §241 drastically changed and increased owners’ common-law liability. In this respect, statutes which derogate from common law are supposed to be strictly construed (Arbegast v Board of Educ., 65 NY2d 161, 169; Miller v Town of Irondequoit, 243 App Div 240, 242, affd without opn 268 NY 578; McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [a], [c]; § 304). In this contest of varying statutory rules of construction, the defendants definitively have the better case.

But there is even more. The majority creates a presumption, seemingly woven out of legislative history, as a basis for excising defendants as a matter of law from the exempt class of strictly liable persons. That approach weakens, rather than aids, plaintiff’s statutory construction case. First, resort to legislative history to divine the meaning of the clear language of Labor Law § 240 (1) and § 241 is unwarranted (Sega v State of New York, 60 NY2d 183, 191; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 120, 125). Even when considered, however, the legislative history of the 1980 amendment suggests that it was the product of the Legislature’s concern that owners of one and two-family dwellings are not sophisticated enough to realize, understand and insure against the risk of strict liability under the Labor Law (see, Mem of NY Law Rev Commn, 1980 McKinney’s Session Laws of NY, at 1657). Defendants are exactly the type of owner for whom the Legislature was expressing concern and enacting a protection. Yet, a new presumption is now attributed to defendants — and everyone else who owns or comes to own a one or two-family rental dwelling — that merely by renting a single piece of property they automatically have sufficient business skills and expertise "to recognize the necessity to insure against the strict liability imposed by the statute.” (Majority mem, at 882.) That presumption runs diametrically contrary to the legislative intent and is not supported by the legislative history. There is no indication that the Legislature ever considered the sophistication of property owners as a limitation on the reach of the "one and two-family dwellings” exemption. The only limitation discussed and eventually adopted was that the exemption would not apply to owners who actually direct and control the work (see, Mem of NY Law Rev Commn, op. cit; Dept of Commerce Letter, Bill Jacket, L 1980, ch 670). That should take care, in any event, of the developer-type owners about whom the majority frets in its strawperson argument by hypothesizing a case not now before us, which is then used to deprive the defendants who are before us in this case of their statutory exemption. Finally, there is no empirical basis anywhere in the statute, its legislative history or this record for the erection of such a presumption and its attribution to these defendants.

Thus, by the twist of two faulty premises, liability is thrust on defendants by operation of law rather than by trial and proof. They are deprived of their day in court and of any potentially mitigating benefits of plaintiffs own comparative negligence. Plaintiff is correspondingly relieved of the elemental burden of proving negligent conduct by the defendants.

The injustice of this approach may be appreciated better by observing that if plaintiff had not enjoyed this procedural and substantive windfall, he might still have had his day in court with the opportunity to prove a traditional common-law negligence cause of action against these defendants. It is only the defendants, based on a cramped construction of the remedial statutory exemption, who are driven out of court before plaintiff is even put to his proof.

We respectfully dissent and would affirm the order of the Appellate Division granting summary judgment to defendants dismissing the complaint.

Judges Simons, Kaye, Alexander and Titone concur in memorandum; Judge Bellacosa dissents and votes to affirm in an opinion in which Chief Judge Wachtler and Judge Hancock, Jr., concur.

Order reversed, etc. 
      
       The literal "plain meaning” interpretation adopted by the dissent would extend the exception afforded by this statute even to developer/owners of one and two-family houses constructed for resale so long as they do not "direct or control the work” — a result manifestly not intended by the Legislature.
     