New York’s Labor Law 240 and 241place responsibility on construction companies, contractors and property owners for the safety of workers working at a height.  There is an exemption for homeowners of one or two family homes.  In Del Carnen Diaz v Bocheciamp,  the First Department looked at the discreet issue of what constitutes a one or two family home and applied a “site and purpose test” in their analysis.

The plaintiff’s decedent-fell to his death while working on the defendant homeowner’s roof.  In a post-trial motion, the defendant-homeowner sought to dismiss the plaintiff’s claims under the exemption, but the lower court denied the motion.  At issue was the plaintiff’s contention that the home was used to house three families:  the homeowners, their adult child with two children, and a family friend.

The First Department held that, when applying the homeowner exemption, a court must apply the “site and purpose” test, which looks at the homeowner’s intention at the time of the accident and the purpose of the work.  In this matter, the plaintiff tried to argue that the home was a three-family dwelling because the basement was rented out to a tenant and the homeowners’ daughter and grandchildren were living on the top floor.  However, the court found that there was uncontradicted evidence that the homeowners did not collect rent from their daughter/grandchildren and that the top floor was not a true apartment, as it only contained two bedrooms.  Accordingly, the Appellate Division found that the two-family homeowner exemption applied.

Thanks to Georgia Coats for her contribution.

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