Construction Injury Trial On The One- Or Two- Family Dwelling Issue

I just finished a trial in Queens. It was a construction accident case, and the issue was whether a property consisted of a one- or two-family dwelling.

Under New York's construction site safety laws, specifically Labor Law 240(1) and 241(6), owners and general contractors are jointly responsible for certain types of construction accidents. This rule does not apply, however, to owners of one- or two-family dwellings who do not direct or control the work.

In this case, my client had fallen through an unprotected floor opening and was severely injured. The general contractor did not have proper insurance, and had gone out of business (leaving no assets to go after). The only viable defendants were the property owners, a retired couple.

The owners had torn down a one-family ranch and were building two two-story houses on the lot. They had not yet received a certificate of occupancy, but the plans and permits listed the structures as two one-family houses. Each house was initially supposed to have five bedrooms, but the plans were later changed (after the complaint was served) so that each house had three bedrooms. One was supposed to have two full and two half baths; the other was supposed to have one full and three half baths.

In those houses, the owners claimed that they would reside in one; their oldest son (42 years old, who paid approximately half of the construction costs) would become the owner of other and live there with his wife and two kids; and the two other adult sons would rent rooms from either their parents or older brother. There was no set "rent," but the brothers (in their 30's, both recently laid off) would pay what they could afford. My client was injured in the house that the owners claimed they intended to occupy.

We suspected that the owners either planned to sell the property for a profit, or have additional tenants, but they flatly denied it during both their depositions and at trial.

As part of the project, the parents established a home owners association creating various easements over the lots after they are formally divided. The home-owners association by-laws contemplated tenants on the property, sale of the property, and possibly building a third house or buying another adjascent house in the future.

This case raised an unsettled issue of New York law: was this purported family compound a one- or two-family dwelling?

There are several cases from the New York Court Of Appeals addressing the one- or two-family dwelling exception. Under these cases, the issue depends on the "site and purpose of the work." Stejskal v Simons; Khela v. Neiger). Where the construction project involves multiple structures with "arguably unifying features," the intended occupancy of the structures can be combined. (Mandelos v. Karavasidis). The one- or two-family dwelling exception is an affirmative defense, and the defendant has the burden of proof.  (Van Amerogen v Donnini).

In addition to intended occupancy, there was also the issue of commercial use. The homeowner's exemption applies where the project is "undertaken solely in connection with... residential use, even if the construction "may have fortuitously affected another area of the property that was used for commercial activities." (Cannon v. Putnam). The exception does not apply, however, if the one- or two-family dwelling is used "solely and exclusively" for a commercial purpose (such as preparation for rental or sale). A property can be consider "solely and exclusively" commercial even if it is also the owner's primary residence. (Lombardi v. Stout; Van Amerogen). The Court of Appeals has not announced a rule for situations where the distinction between commercial and residential use is a matter of degree.

Although it was a thorny issue, the trial seemed to be going in my favor. The property owners were hostile during cross-examination, and were caught making several misrepresentations. For example, the husband had claimed during his deposition that all three of his sons were single and lived at home; at trial we heard that the oldest son had been married for ten years and lived on hid own. The wife authenticated blueprints on direct, laying a well-rehearsed foundation; on cross, however, she admitted that she had only seen them once several years ago and had no idea what she was looking at. She also equivocated about whether the basement was divided into seperate rooms, and where the younger sons were going to live.

As the trial continued, the defendants moved off from their nuisance-value offer. After significant discussion (and my firm's managing partner coming in to close the deal), we agreed to a high-low settlement: agreeing not to go after the defendants' individual property if we won in excess of the insurance policy, and guaranteeing our client a not-insignificant amount if we lost. As part of the high-low, both sides waived their right to appeal.

Prior to closing arguments, both sides moved for a directed verdict. In addition to the Court of Appeals cases above and others, I relied on a recent case from the Third Department, Nudi v. Schmidt, which found that renting to an adult child can be considered a commercial purpose.  Defendants relied largely on Baez v. Cow Bay Construction, a 2003 Second Department case finding that the homeowner's exception applied where a family had torn down their old house, built two one-family homes for the family to live in, and put the properties in a corporate name but insisted that they intended to live there.

Before closing arguments, both sides moved for directed verdicts, and the court dismissed the case as a matter of law. We knew it was a possibility, but it was extremely disappointing. I felt we had a solid argument that: first, the anticipated occupants -- two couples and two grown men -- counted as more than two families; and, second, the occupants, although related, had a business arrangement that made the construction predominantly commercial.

Was the judge right?

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