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In a decision that could have ripple effects across Long Island’s East End summer playground, a Suffolk Supreme Court justice hearing a swimming pool accident case has ruled that a sharehouse owner may be held to the same liability standards as the owner of a hotel, motel or inn. After fracturing his neck in a diving accident, plaintiff Flavio Fornaro, then 21, sued the owner of the Quogue sharehouse where he was a paying guest, alleging negligence. When the homeowner moved for summary judgment, Fornaro’s lawyer cross-moved, raising the argument that because this home was being used for commercial purposes, it had to be held to a higher commercial standard. Denying both principals’ motions in Fornaro v. Azar, No. 011136-2000, Justice Robert Webster Oliver agreed. Sending the case toward trial, Oliver said that whether or not the property owner, Rodman Charles Azar, may have been required to place decals at various points around the pool, denoting its varying depths, was a triable issue of fact as was whether Fornaro’s decision to dive into the pool vitiated any negligence on the part of Azar. Also sued — and held in the case by Oliver’s decision — was the company responsible for building the pool. Several sub-contractors to that defendant, however, were let out by the ruling. The decision could create a whole host of new and previously unanticipated duties for both rental property owners and others who have pay-to-attend events at their homes. “It’s a biggie,” said Riverhead real estate attorney Stephen Angel, a partner in Esseks, Hefter & Angel. He wondered if the same rules could apply to sharehouses on the ocean, too. “Could you have an obligation to put lifeguards in?” he said. “I don’t know.” Thomas McSherry, who operates Re/Max realty offices in Hampton Bays and Bridgehampton, called the decision “quite disturbing.” “The general public won’t realize this is the case until there’s a problem,” he said. For Azar, the problem started during the 1999 Memorial Day weekend. According to Fornaro’s lawyer, D. Daniel Engstrand of Northport’s Doniger & Engstrand, Azar had rented out his three-bedroom residence for the summer. Having recently opened the pool, Azar was still at the house on the night of the accident and had been soaking in a hot tub with Fornaro up until moments before the accident. Azar did not know Fornaro, who was there as the guest of one of Azar’s renters and was asked to pay $50 for the weekend stay. Engstrand said the money was collected by Azar. But Oliver’s ruling said the money was given to the renter who invited Fornaro for the weekend. Based on the papers before him, the judge recounted what happened next. “The area, allegedly was poorly lit, with the only light source emanating from the residence,” he wrote. “Immediately before diving into the pool, the plaintiff observed another person dive at a spot close to where he executed his dive, and when he entered the pool, he believed that he was diving into a safe area of the pool.” Critically, Oliver added, “There were no warning signs anywhere around the pool and [Fornaro] did not see any water depth level marking nor did he see any ‘danger — no diving signs’ posted.” It is undisputed that Fornaro dove head-first into four feet or less of water, struck his head on the bottom and fractured his neck. Engstrand said his client spent months confined to a wheel chair. Today he is able to walk only with leg braces and a cane. STATE SANITARY CODE In denying the summary judgment motion made by Azar and by counsel for the pool company, Oliver cited New York State Sanitary Code, 10 NYCRR Part 6, the violation of which, he said, may constitute evidence of negligence. Section 6.1.1 of that regulation states that the depth of water “shall be plainly marked at or above the water surface on the vertical pool wall and/or on the edge of the deck at maximum or minimum points and at break between the deep and shallow portions” as well as at intermediate two-foot increments of depth. Those requirements apply to all pools except those maintained by individuals for use by family and friends, the judge noted. Because Azar was charging for the use of his home, and because Fornaro had paid money to be there, Oliver concluded that “the absence of depth marking is itself enough to preclude an award of summary judgment” for Azar. Conversely, noting that pool accident cases are typically dismissed because the plaintiff is expected to have the capacity to assess the risk of a head-first dive, Oliver also denied summary judgment for Fornaro. “Pool cases are next to impossible to win,” Engstrand admitted. Fornaro is seeking $6 million in damages. Azar was represented by the Hauppauge insurance defense firm of Epstein Grammatico Gann & Frankini. The attorney assigned to the case, Lillian Kennedy, declined to comment. The builder, John’s Swimming Pools, was represented by Leonard Zack & Associates of Manhattan. Zack speculated in an interview that perhaps the homeowner was culpable simply because he was present when Fornaro was hurt. “Don’t you think he has an obligation to say, ‘Hey, don’t do that,” Zack said. Zack said he has not yet decided to appeal, but said that Azar’s lawyers had filed notice of their intention to appeal. Engstrand said that if Oliver’s ruling is now law in the county, it would empower code enforcement inspectors to do spot checks for compliance where there are known sharehouses. Authorities in the towns of East Hampton and Southampton are already cracking down on sharehouses, which are not welcome in the upscale communities, said both McSherry, the Realtor, and Angel, the real estate lawyer. Projecting forward, McSherry said he fears that if somebody were injured at an event such as a fund-raiser held in a private home, “this ruling could be used to suggest they should have had an appropriate exit sign … obviously that’s never going to be the case. You can’t take a person’s residence and make it a Starbucks.”

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