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.
