Brian J. Shoot ()
Labor Law §§240 and 241 each exempt “owners of one and two-family dwellings who contract for but do not direct or control the work.” The exemption was added in 1980 at the recommendation of the Law Revision Commission.
Both statutes can render the building owner liable even where the owner was blameless and even where the owner neither initiated nor was aware of the “construction work” that gave rise to the subject injuries. Sanatass v. Consol. Inv. Co., 10 N.Y.3d 333, 340 (2008). Such liability is based on “the apparent legislative policy determination that ‘over-all compliance with safety standards would [best] be achieved by placing primary and inescapable responsibility on owners and general contractors rather than on their subcontractors’ because of the former’s greater interest in the project and often superior economic position.’” Cannon v. Putnam, 76 N.Y.2d 644, 649 (1990), quoting Haimes v. New York Tel. Co., 46 N.Y.2d 132, 136 (1978).
The Law Revision Commission felt that rationale was inapt in the archetypical case in which Joe or Jane Homeowner hires contractors to add a sun room or repair the roof. The Commission accordingly recommended that the statutes “‘not apply to owners of one and two family homes who are not in a position to know about, or provide for the responsibilities of absolute liability.’” Cannon, 76 N.Y.2d at 649, quoting Recommendation of N.Y. Law Rev. Commn., reprinted in 1980 McKinney’s Session Laws of N.Y., at 1658. The Legislature evidently agreed with that sentiment and the proposed exemption became law. L. 1980, c. 670.
In this column, I address, (1) who, precisely, are “owners” of “one and two-family dwellings” for the purposes of the exemption, and (2) the two principal exceptions to the exemption. One of those exceptions is specified in the statute itself: the instances in which the owner “direct[s] or control[s] the work.” The other exception, which is at least as important in actual practice, is court-made. Per controlling case law, the exemption applies only when the subject “construction” “directly relates” to the owner’s residential use of the premises.
Although the liability provisions of Labor Law §§240 and 241(6) apply to “[a]ll contractors and owners and their agents”—which does not really mean “all contractors and owners and their agents,” but that is another column—the exemption applies only to “owners of one and two-family dwellings.” “Contractors” and “agents” do not qualify for the exemption. So where, for example, the wife holds title and the husband hires the contractors (thereby acting as the owner’s agent), the husband does not get the benefit of the exemption. Abdou v. Rampaul, 147 A.D.3d 885 (2d Dep’t 2017); Westgate v. Broderick, 107 A.D.3d 1389, 1390 (4th Dep’t 2013).
The fact that the title is held by a corporation does not of itself preclude application of the exemption provided that the dwelling otherwise qualifies. Assevero v. Hamilton & Church Properties, 131 A.D.3d 553, 556 (2d Dep’t 2015); Baez v. Cow Bay Constr., 303 A.D.2d 528, 529 (2d Dep’t 2003). Also, the proprietary lessee in a coop is deemed an “owner” and thus entitled to the exemption if it otherwise applies. Campos v. 68 East 86th Street Owners, 117 A.D.3d 592 (1st Dep’t 2014).
There are from time to time issues as to whether the property was a “one and two-family dwelling.” The Court of Appeals some years ago ruled the exemption applied where the property had housed at least three families and a business but the purpose of the subject construction activity was to convert the property to a single-family dwelling for the owner’s personal use. Stejskal v. Simons, 3 N.Y.3d 628 (2004). It is not clear whether the result is the same or different when the conversion goes in the opposite direction.
In order to be a one or two-family dwelling, the building must in fact be a dwelling. So, a church that is used as a church is not a one or two-family dwelling. De Oleo v. Charis Christian Ministries, 106 A.D.3d 521, 522 (1st Dep’t 2013).
There can be a disputed issue of fact whether the building housed only two families. Zheng v. Cohen, 52 A.D.3d 801, 802 (2d Dep’t 2008); Kolb v. Lambert, 116 A.D.3d 492 (1st Dep’t 2014). That the building’s certificate of occupancy classified it as a one or two-family dwelling will not control if the building in fact contained three units with three separate entrances and all the units were used. Assevero v. Hamilton & Church Properties, 131 A.D.3d 553, 557 (2d Dep’t 2015). By the same token, that the building could have been legally used as a three-family apartment building will not control if the premises were used as a one and two-family dwelling and the exemption was otherwise applicable. Sandals v. Shemtov, 138 A.D.3d 720, 721 (2d Dep’t 2016).
‘Direct or Control’ Exception
The Court of Appeals’ 2009 decision in Affri v. Bosch, 13 N.Y.3d 592 (2009), rendered by 4-3 vote, governs the “direct or control” exception to the homeowner’s exemption. The court there held that where the owner’s participation was “limited to discussion of the results the homeowner wished to see, not the method or manner in which the work was then to be performed,” such involvement was not the kind of participation that precludes application of the exemption. Affri, 13 N.Y.3d at 596.
Per the case law, the mere fact that the owner acted as his or her own general contractor does not deprive the owner of the statutory exemption. McNabb v. Oot Bros., 64 A.D.3d 1237, 1239 (4th Dep’t 2009); Synder v. Gnall, 57 A.D.3d 1289, 1290 (3d Dep’t 2008). Likewise, that the owner provided materials, made sure that his/her possessions were covered or safe, inspected the progress of the work, gave general instructions, made “aesthetic decisions,” pointed out areas that had not been completed, or physically helped with the work does not of itself constitute control over the manner in which the work is performed.1
One recurrent theme is the homeowner will not be deprived of the exemption for exhibiting “typical homeowner interest” or for involvement “no more extensive than would be expected of the typical homeowner.” DiMaggio v. Cataletto, 117 A.D.3d 984, 985-86 (2d Dep’t 2014); Mondone v. Lane, 106 A.D.3d 1062, 1063 (2d Dep’t 2013); Ruiz v. Walker, 93 A.D.3d 838, 838-39 (2d Dep’t 2013).
All of that said, there have been instances in which the owner’s involvement was significant enough to lose the exemption or as to create a triable issue as to the exemption’s applicability. Some such instances have been cases in which the homeowner was actually in the construction business or was a real estate developer and, in the circumstances, it was at least arguable that the owner’s involvement went beyond that of the typical homeowner. Ramirez v. I.G.C. Wall Sys., 140 A.D.3d 1047 (2d Dep’t 2016); Pavon v. Koral, 113 A.D.3d 830, 831 (2d Dep’t 2014); Ryba v. Almeida, 44 A.D.3d 740 (2d Dep’t 2007); Acosta v. Hadjigavriel, 18 A.D.3d 406, 406-07 (2d Dep’t 2005).
Another situation in which there were triable issues has been where the owner created the danger or gave the means or methods direction that led to the subject accident. Wadlowski v. Cohen, 150 A.D.3d 930, 931 (2d Dep’t 2017) (where plaintiff testified “that the defendant personally directed the workers not to throw the debris out of a window and, instead, to throw the debris from the balcony that lacked a railing”); Fernez v. Kellogg, 2 A.D.3d 397, 399 (2d Dep’t 2003) (“because the defendants allegedly participated in the work, creating the dangerous condition … the exemption may not be available to them”).
Wherever the burden of proof may lie on the direction and control question at the trial of the action, an issue which seems not to have been clearly addressed, it plainly lies with the defendant to make a prima facie showing negating direction and control where the issue arises on the defendant’s motion for summary judgment. E.g., Going v. Toomey, 81 A.D.3d 688, 689 (2d Dep’t 2011); Ryba, 44 A.D.3d at 740-41.
Per the Court of Appeals’ ruling in Bartoo v. Buell, 87 N.Y.2d 362, 368 (1996), the exemption applies only if the work in issue “directly relates to the residential use of the home.” Notably, that the work also serves a commercial purpose—for example, that repair of the leaking roof also enhanced the rental value of the upstairs apartment—will not result in loss of the exemption if the work “directly related” to the property’s residential use. Levy v. Baumgarten, 147 A.D.3d 823, 823-24 (2d Dep’t 2017) (where “defendant used his home as the physical address for a corporation named Chabad Lubavitch Mitzvah Tank, Inc., and a computer in the home office was sometimes used on behalf of the corporation,” “the use of a portion of the defendant’s residence for commercial purposes did not automatically cause him to lose the protection of the exemption”); Sandals v. Shemtov, 138 A.D.3d 720, 721 (2d Dep’t 2016) (“[c]ontrary to the plaintiff’s contention, under the facts of this case, the defendant was not required to demonstrate that the sole purpose of the construction work being performed at the time of the plaintiff’s accident was undertaken to convert the premises into a one-family home”). The Appellate Division, Second Department, recently observed that it employs “a flexible site and purpose test to determine whether the work contracted for directly relates to the residential use of the building so as to warrant application of the exemption.” Nicholas v. Phillips, 151 A.D.3d 731 (2d Dep’t 2017).
The key, however, is that the work must directly relate to residential use by the owner or by his or her family. For instance, if the building is a one or two-family dwelling which the owner leased in its entirety to college students—as occurred in a Court of Appeals case some years ago—the property may have been used for residential purposes from the perspective of the lessees but it was nonetheless being used solely for commercial purposes for the purposes of the statutory exemption. Van Amerogen v. Donnini, 78 N.Y.2d 880 (1991).
This sometimes leads to triable issues concerning whether the owner really intended to personally occupy the premises.2 Ultimately, it is the owner’s intent at the time of the accident, not what later occurred with the property, that controls. However, the latter is often cogent evidence of the former. Davis v. Maloney, 49 A.D.3d 385, 386 (1st Dep’t 2008).
Even if the dwelling is occupied by the owner’s family, the use is deemed commercial if the owner is charging rent.3 From the plaintiff’s perspective, this means that the plaintiff may want to dig deeper into the facts before concluding that the availability of the exemption is a foregone conclusion.4
There are also, on occasion, questions as to whether work which benefitted some part of the property that was used commercially (perhaps a barn or stable) also “directly related” to a residential use of the premises. E.g., Hale v. Meadowood Farms of Cazenovia, 104 A.D.3d 1330, 1331-32 (4th Dep’t 2013) (where there was conflicting evidence as to whether it was the defendant-owners or their business that contracted for the work in issue and conflicting evidence as to whether the barn would be used for commercial purposes or “solely for historical preservation purposes”). In such instances, that the owner claims the work “directly related” to the residential use does not necessarily make it so. Sanchez v. Palmiero, 118 A.D.3d 860, 862 (2d Dep’t 2014); Battease v. Harrington, 90 A.D.3d 1124, 1225 (3d Dep’t 2011).
When the defendant is seeking summary judgment based on the homeowner’s exemption, the burden of proving that the work directly related to a residential use of the property lies squarely on the owner since, (1) he or she is the summary judgment movant, (2) the issue concerns entitlement to a statutory exemption, and (3) the matter is one within the owner’s knowledge.5
The ‘Bottom Line’
Although one may at first blush suppose that it will inevitably be clear whether the defendant was the “owner” of a “one or two-family dwelling” within the meaning of Labor Law §§240 and 241(6), the answer may turn on any of a number of factual issues. Moreover, one of those issues, whether the owner (or his or her family) personally used the property for a residential purpose, is not immediately apparent from the statute itself.
1. E.g., Marcano v. Hailey Dev. Group, LLC, 117 A.D.3d 518, 518 (1st Dep’t 2014) (although the defendant homeowner “determined the location of shower bodies and fixtures and the location of sinks and toilets, such ‘participating was limited to discussion of the results the homeowner wished to see’”); Bombard v. Pruiksma, 110 A.D.3d 1304, 1305-06 (3d Dep’t 2013) (where the defendant-owner was physically assisting during the lift that caused plaintiff’s accident, such did not deprive him of the benefit of the one and two-family dwelling exemption); Bucklaew v. Walters, 75 A.D.3d 1140, 1141 (4th Dep’t 2010) (“[t]he mere fact that defendant occasionally pointed out areas where the work was not completed properly does not subject him to liability …”); Thompson v. Geniesse, 62 A.D.3d 541, 541-42 (1st Dep’t 2009) (“[t]he fact that defendants hired an architect to draw plans for portions of the work and to periodically check to see if the quality of the work was reflective of her plans does not constitute personal direction and control by defendants”); Luthringer v. Luthringer, 59 A.D.3d 1028, 1029 (4th Dep’t 2009) (where it was “undisputed that defendant worked on the roof on the day of plaintiff’s accident, and that defendant supplied materials for the work,” defendant was nonetheless entitled to the exemption); Chowdhury v. Rodriguez, 57 A.D.3d 121, 128 (2d Dep’t 2008) (defendants were entitled to the exemption where the evidence merely indicated “typical homeowner interest in the on-going progress of the work” that here included that defendants “monitored the progress of the work, approved the aesthetics of the work, such as grout texture and color, and oversaw the work’s general quality, such as the straightness and angles of stone and masonry”).
2. Vogler v. Perrault, 149 A.D.3d 1298 (3d Dep’t 2017) (where plaintiff testified that defendant told him he planned to rent both halves of the two-family home, there was an issue of fact as to defendant’s entitlement to summary judgment inasmuch as “‘renovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose’”); Batzin v. Ferrone, 140 A.D.3d 1102, 1104 (2d Dep’t 2016) (where it was “undisputed that the defendant purchased the East Hampton home with the intent of renovating it and reselling it at a profit, as he had done with 15 previous houses,” but where defendant “claimed that he intended to live in the East Hampton home for two to four years prior to reselling it,” “his credibility should be resolved on cross-examination before a factfinder, rather than on summary judgment”); Murati v. Harris, 117 A.D.3d 432, 432 (1st Dep’t 2014) (where there was “conflicting evidence as to whether defendants intended to use the home for commercial or residential purposes, and therefore an issue of fact exists as to whether they are entitled to the homeowner exemption under Labor Law §240(1)”); Truppi v. Busciglio, 74 A.D.3d 1624, 1625 (3d Dep’t 2010) (where there was admissible evidence to the effect that defendant had and would continue to use the dwelling as his home, but also admissible proof to the effect he lived elsewhere and planned on renting the residence”).
3. Nudi v. Schmidt, 63 A.D.3d 1474, 1474-75 (3d Dep’t 2009) (where father-owner and son-occupant had earlier said under oath “that the cottage … was being rented by [son] at the time of plaintiff’s accident” the exemption was deemed inapplicable as a matter of law notwithstanding that the witnesses now said the opposite); cf. Morocho v. Marino Enterprises Contracting, 65 A.D.3d 675, 675-76 (2d Dep’t 2009) (that the defendant-owner’s “daughter lived in the home and paid the mortgage and taxes on the property did not cause [defendant] to lose the protection of the exemption, as the arrangement served no commercial purpose”).
4. In the context of the case law, I frankly do not know what to make of the Fourth Department’s recent statement that a town which undertook to repair vacant homes within its borders could somehow claim the benefit of the homeowner’s exemption. Berner v. Town of Cheektowaga, 151 A.D.3d 1636 (4th Dep’t 2017). I can only observe that the statement was pure dictum inasmuch as the Court held that the town “established as a matter of law … it was not an owner of the property or a general contractor on the project”).
5. Bagley v. Moffett, 107 A.D.3d 1358, 1359 (3d Dep’t 2013) (“[a]s the parties seeking the shelter of the statutory exemption, defendants had to establish—as a threshold matter—that the property was not being used solely for commercial purposes at the time of [plaintiff's] accident”); Landon v. Austin, 88 A.D.3d 1127, 1128 (3d Dep’t 2011) (it was “incumbent upon defendant, as the party seeking the shelter of the exemption, to come forward with an affidavit or other proof clarifying or qualifying his plans for the property at the time of plaintiff’s accident”; because defendant failed to do so, plaintiff was entitled to summary judgment).