Tuesday, July 1, 2008

Under Labor Law 240(1) and 241(6), The One- Or Two-Family Dwelling Exception Depends On the Site and Purpose Of The Work

Where a construction accident occurs during work on an owner-occupied one- or two-family dwelling, the property owner is exempt from liability under New York's Labor Law 240(1)(related to gravity related hazards) and Labor Law 241(6)(related to tools, equipment, and violations of he State Industrial Code).

In Zheng v. Cohen, 2008 NY Slip Op 5910 (2d Dept., June 24, 2008), a homeowner attempted to argue that they were entitled to the one- or two-family dwelling exception to New York Labor Law 240(1) -- which places an affirmative obligation on contractors and building owners to ensure that workers who are exposed to gravity-related hazards have proper protective equipment (such as ladders, hoists, scaffolding, etc.) but exempts owners of one- or two-family dwellings -- because they used the home as a one-family residence. The building, however, was legally a three-family dwelling, and the construction project during which the plaintiff was injured did not change the legal occupancy of the dwelling.

Defendants argument that the one- or two-family dwelling exception applied to three-family dwellings that are only occupied by a single family was based on Stejskal v Simons, 3 NY3d 628 (2004) and Khela v Neiger, 85 NY2d 333, 648 N.E.2d 1329 (1995) which had held that the purpose of a construction project is the determinitive factor in deciding whether a building is a one- or two-family dwelling (i.e., a three-family home being converted to a one-family home is entitled to the exemption). Stejskal had never before been interpreted, and it was an open question whether an owner's averments as to the actual use of the premises were sufficient to implicate the one- or two-family dwelling exception.

The lower court denied the defendants' motion for summary judgment, and the Second Department affirmed, finding that the homeowners had failed to show that the sole purpose of the construction was the conversion of the building to a one- or two-family dwelling, and that the homeowners statements were insufficient to set forth a prima-facie showing that the building was not used as a three-family dwelling at any point after the construction.
You can learn more about Labor Law 240(1) here.  If you are looking for representation, feel free to contact me at Scott.Kreppein@gmail.com.

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