Lou and The Law

In Dineen v Rechichi decided on November 13, 2009, The Fourth Department was are asked to determine whether defendants were entitled to the exemption from liability afforded to owners of one- and two-family dwellings under Labor Law § 240 (1) and § 241 (6) where plaintiff seeks damages for injuries he sustained while repairing a barn on defendants’ property, which did not contain a single-family dwelling at the time of the accident.

The court held “that the homeowner exemption applies to defendants because they intended to build a single-family residence on the property at the time of the accident and the barn was used solely for residential purposes.

“… When defendants purchased the undeveloped property in 2001, they planned to build a home, a barn and a pond on a six-acre parcel of the property. In February 2003, defendants hired plaintiff, a self-employed carpenter, to construct a pole barn on the property. On June 17, 2003, plaintiff fell from a ladder while inspecting the roof of the barn for leaks. At the time of the accident, the barn was the only structure located on the property, although defendants subsequently constructed a single-family home on the property.

Plaintiff commenced this action asserting causes of action for violations of Labor Law §§ 200, 240 (1) and § 241 (6), … Plaintiff … consented to dismissal of the section 200 cause of action. … The [trial] court determined with respect to sections 240 (1) and 241 (6) of the Labor Law that defendants were entitled to the homeowner exemption …

Sections 240 (1) and 241 of the Labor Law both exempt from liability ‘owners of one[-] and two-family dwellings who contract for but do not direct or control the work . . . .’ Here, it is undisputed that defendants did not direct or control plaintiff’s work, and defendants concede that plaintiff is a covered worker under Labor Law § 240 (1) and § 241 (6). Thus, the sole question presented on this appeal is whether defendants are entitled to the benefit of the statutory exemption for owners of one- and two-family dwellings (see § 240 [1]; § 241 [6]), despite the fact that plaintiff was injured during the construction of a barn and defendants’ residence had not yet been constructed at the time of the accident. Although this case involves somewhat novel facts, we conclude that the court properly determined that defendants are entitled to the benefit of the homeowner exemption and are therefore exempt from liability under Labor Law § 240 (1) and § 241 (6).

The statutes do not define ‘dwelling.’ In light of the remedial purpose of the amendments, however, the Court of Appeals has cautioned against applying ‘an overly rigid interpretation of the homeowner exemption and [instead has] employed a flexible site and purpose’ test to determine whether the exemption applies’ (Bartoo, 87 NY2d at 367-368). Under that test, ‘whether the exemption is available to an owner in a particular case turns on the site and purpose of the work’ (Cannon v Putnam, 76 NY2d 644, 650; see also Trala v Egloff, 258 AD2d 924).

As an initial matter that, although plaintiff’s accident occurred during the construction of a barn rather than a residence, that fact does not by itself bar application of the homeowner exemption. The courts have not limited the application of the homeowner exemption solely to work performed on the residential structure itself. Indeed, a barn, a garage, or other ancillary structure located on property that also contains a residence clearly falls within the definition of a ‘dwelling’ as interpreted by the courts, so long as the structure serves a residential purpose … As the Court of Appeals reasoned in Bartoo, ‘the fact that the work was performed on the barn and not on the residential home itself does not alter the analysis; the barn, located on [the defendant’s] property and used in part for personal storage purposes, is akin to a garage and should be considered an extension of the dwelling within the scope of the homeowner exemption’ (87 NY2d at 369). Here, defendant husband testified at his deposition that he used the barn to store household goods, a tractor, an all-terrain vehicle (ATV) and other personal items unrelated to his upholstery business.

… we conclude that ‘the remedial purposes and protective goals underlying the 1980 amendments to Labor Law § 240 (1) and § 241 are best served by extending the dwelling-owner exemption to defendant[s’] situation’ (Cannon, 76 NY2d at 651). In our view, the fact that defendants hired plaintiff to build the barn prior to building their home does not deprive them of the benefit of the homeowner exemption inasmuch as the record establishes that defendants intended to build a single-family dwelling on the property and had taken steps to effectuate that plan prior to plaintiff’s accident.

It is well established that the ‘site and purpose’ test ‘must be employed on the basis of the homeowners’ intentions at the time of the injury underlying the action’ (Allen v Fiori, 277 AD2d 674, 675; see Davis v Maloney, 49 AD3d 385; Pastella v R.S. Hulbert Bldrs., 305 AD2d 998, 999; Moran v Janowski, 276 AD2d 605, 606).
…
To the extent that plaintiff contends that the status of defendant husband as a small business owner removes him from the class of unsophisticated persons that the homeowner exemption is designed to protect, we note that there is no “separate degree of sophistication’ ” analysis under Labor Law §§ 240 and 241 (Sweeney v Sanvidge, 271 AD2d 733, 735, lv dismissed 95 NY2d 931). In any event, that contention lacks merit (see Allen, 277 AD2d at 675).

On November 24, 2009, in Affri v Basch, the Court of Appeal was presented with the issue of “whether defendants exercised sufficient direction and control over plaintiff’s work to overcome the one or two-family dwelling exception found in Labor Law §§ 240 and 241.”

In an opinion by Judge Pigott, with Judges Graffeo, Read and Smith concurring, the Court held that they did not and therefore affirmed the order of the Appellate Division, 2nd Department which had reversed the lower court. Chief Judge Lippman dissented and voted to reverse the Appellate Division, with Judges Ciparick and Jones concurring.

“Defendants hired plaintiff, a neighbor who had previously done small jobs for them, to perform renovations to an apartment within their home. The work included, as relevant to this appeal, the installation of appliances. Plaintiff fell from a ladder while installing a vent on the roof and suffered injuries that required several surgeries.

Plaintiff brought this action against defendants, alleging violations of Labor Law §§ 200, 240 (1) and 241 (6) and common law negligence. …

Labor Law § 240 provides in pertinent part as follows:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, …

A similar homeowner’s exemption is found in Labor Law § 241.

… We have previously stated that whether a defendant’s conduct amounts to direction and control depends upon the degree of supervision exercised over “the [method and manner in which the work is performed” (Duda v Rouse Constr. Corp, 32 NY2d 405, 409 [1973]).

Here, defendants’ 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. Defendants’ direction to plaintiff to place a vent through the roof was simply an aesthetic decision. Defendants did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion. Further, defendants did not provide the plaintiff with any equipment or work materials, nor were they even present at the time plaintiff undertook the venting work. Rather, both the method and the manner of plaintiff’s work were left to his judgment and experience.

Plaintiff’s affidavit indicating that he expressed reluctance to go on the roof because of concern for his safety is insufficient to raise an issue of fact. Although plaintiff claims that he did not want to go up on the roof to run the vent because he was working alone, he proceeded to do so—not at the specific direction of defendants but of his own volition to complete the work.

For the same reasons, defendants were entitled to summary judgment dismissing the causes of action pursuant to Labor Law § 200 and for common law negligence because defendants exercised no supervisory control over the activity bringing about the injury (see Lombardi v Stout, 80 NY2d 290, 295 [1992]).

Judge Lippman’s dissent is helpful in setting forth what happened and thus what is insufficient to defeat the homeowner’s exception. In his opinion Judge Lippman said “plaintiff asserts that when he told Mr. Basch that in order to move a sink to Basch’s preferred location he would need to cut a beam that supported the house, defendant instructed him to cut the beam. Basch told plaintiff to place the washer-dryer vent through the roof, rather than through the window, after plaintiff expressed reservations about the safety of that procedure …