Thomas M. Bona, P.C.

Attorneys At Law

First Department Applies Homeowners Exemption

To Home Rented Out By Owners


As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision concerning the Labor Law.


One of the interesting areas in the Labor Law is the homeowners exemption under Labor Law Sections 240 and 241. Under the Labor Law, there is a homeowners exemption which prevents the otherwise absolute statutory liability to “owners of one and two-family dwellings who contract for, but do not direct or control the work”. This exception is designed to protect homeowners who have normal maintenance and/or renovations done to their one or two-family homes. The exemptions do not apply to homeowners who use their one and two-family premises entirely and solely for commercial purposes. A recent case in the First Department showed the application of this principal.


In Farias v. Simon, the issue was whether the work that the plaintiff was performing at the time of accident was for the owners’ commercial use of the house. The owners acquired title to the premises through inheritance in 2004. In July 2005, the owners began renovations. One of the owners testified that they renovated the house for the purpose of modernizing it and using it for a second home. Plaintiff was injured on October 19, 2005, and at that time, the renovation was ongoing and the house was unoccupied. In Fall 2006, the renovation reached the punch list stage and the owners never occupied the house. The owners decided to lease it out in Spring 2007, and did so later that summer.


The owners moved for summary judgment arguing that the homeowners’ exemption shielded them from liability as they did not direct or control the plaintiff’s work. The plaintiff opposed the motion, arguing that the owners intended to use the house solely for commercial purposes. The Appellate Division granted defendant's motion and plaintiffs appealed. The First Department affirmed and found that the owners made a prima facie showing of entitlement to the homeowners exemption by demonstrating that the premises consisted of a one-family dwelling, and that they did not direct or control the plaintiff’s work. The Court found that the plaintiff had failed to produce evidentiary proof sufficient to establish the existence of material issues of fact. The First Department noted that the homeowners exemption hinges upon the site and the purpose of the work, a test which must be employed on the basis of the homeowners intentions at the time of the injury. The Appellate Division noted that the house was leased by the owners almost 2 years after plaintiff’s injury.


The Appellate Division found that plaintiff and the dissent misplaced their reliance on the subsequent lease which the owners entered into almost 2 years after plaintiff’s injuries. The Appellate Division rejected plaintiff's argument that the owners would not have been able to rent the house without undertaking the construction project, and found that it was irrelevant that the renovation was more extensive than the owners had originally intended.


In dissent, two judges argued that in order to ascertain whether the defendants were entitled to the homeowner=s exemption it required looking into the operation of defendants thought and decision making processes. The dissent found that this issue, which necessarily implicates defendants’ state of mind, is not readily determinable on a motion for summary judgment. The dissent argued that common sense suggests that credibility determinations are better resolved at trial than on a motion for summary judgment.


The majority decision appears to be correct since the house was rented two years after plaintiff's accident. Because there was a two judge dissent, this case may be appealed to the Court of Appeals for a definitive ruling.


Should you have any questions, please call.

Thomas M. Bona