Under New York Labor Law §§2401(1) and 241(6), a homeowner can be held vicariously liable for the torts of their contractors. However, the statute provides an exemption for the owners of one or two family homes who do not direct or control the work. But what counts as a family? The First Department recently shed some light that on issue in <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/06/Diaz-v-Bocheciamp.pdf">Diaz v Bocheciamp</a>.</em>
In <em>Diaz, </em>the plaintiff’s decedent died after falling to the ground while working on the roof of the defendant’s house. The estate sued under New York Labor Law §§2401(1) and 241(6). At the time of the accident, the defendant homeowner shared the house with an adult child, two grandchildren, and a family friend who lived in the basement.
The trial court had entered judgment against the homeowner, who appealed to the First Department. The First Department reversed, and held that the homeowner exemption applied. According to the court, the applicability of the exemption hinges on a “site and purpose” test, which is based on the homeowner’s intentions at the time of the injury. Because this defendant lived with relatives and collected no rent, the court held as a matter of law that this home was “at most, a two-family dwelling” even though it housed “three families, two of which are related.” <em>Diaz </em>is welcome news to homeowners who do not oversee their contractors’ work, but also to their insurers as well.
Thanks to Michael Gauvin for his contribution. Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.