Thursday, June 9, 2016

The homeowner exemption from liability under the Labor Law.

Practice point:  The Appellate Division reversed, and directed dismissal in the action where plaintiff's decedent died after falling to the ground while working on the roof of a house owned by defendants. The sole issue at trial was whether defendants' house was a one- or two-family dwelling subject to the homeowner exemption from liability under Labor Law §§ 240(1) and 241(6). The Appellate Division found that the evidence established, as a matter of law, that the house was, at most, a two-family dwelling, and that, adcordingly, defendants are entitled to judgment in their favor.

The applicability of the homeowner exemption is determined by a site and purpose test, which hinges upon the site and the purpose of the work and which must be employed on the basis of the homeowners' intentions at the time of the injury. Here, the evidence established that, at the time of the accident, defendants' house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income. That three families, two of which are related, lived in the home is insufficient to raise an issue of fact as to whether the home was a three-family dwelling. Nor do the notices of property value from the New York City Department of Finance raise an issue as to whether defendants intended to use the home as a three-family dwelling, particularly given uncontradicted testimony regarding the use and layout of the home.

Student note:  It is of no consequence that plaintiff refers to the top floor of the home as an "apartment."  She points to no evidence that it contained anything other than two bedrooms, which were occupied by defendants' grandchildren.

Case:  Del Carnen Diaz v. Bocheciamp, NY Slip Op 04305 (1st Dep't June 2, 2016)

Here is the decision.

Tomorrow's issue:  A fatally flawed motion for summary judgment in lieu of complaint.