BREAKING GROUND

Trends In New York Construction Law

06
JUN
2016

Keep It in the Family: Making Use of the Homeowner Exemption to Labor Law Liability

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two-family-houseThe First Department recently revisited the “one-or-two family dwelling” exemption to Labor Law liability under §§ 240(1) and 241(6).

In Diaz v. Bocheciamp, a roofer was killed when he fell off the roof of a three-story house. At issue was whether the house constituted a two-family house (which would preclude the owners from being subject to Labor Law liability) or a three-family house (which would subject the owners to strict liability). The basement apartment was occupied by an unrelated friend of the family, but the three upper floors were all occupied by the adult defendant-owners, their adult child and two grandchildren. Plaintiff argued that three distinct families lived in the home — taking it out of the “family dwelling” exemption — and the jury bought it.

The defendants, however, successfully appealed the denial of its motion to set aside the jury’s verdict demonstrating that this was, in fact, a two-family residential home.

Aside from the fact that no rental income was received by defendants, the court made note that two of the three “families” were related and that none of the filings suggest the home was intended to be used as a three-family dwelling. The case shows that it’s much harder to prove that an owner intends to use his house as a three-family dwelling when the occupants share bloodlines.

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Paul Howansky

Paul Howansky is a partner at Harrington, Ocko & Monk, LLP where he specializes in handling insurance coverage disputes, construction litigation and subrogation claims. He also manages the firm's appellate practice. Mr. Howansky earned his J.D. from Hofstra University School of Law, where he served as Articles Editor for the Hofstra Law Review. If you have any questions regarding construction law issues, please contact Paul at (914) 686-4800 or via e-mail phowansky@homlegal.com.