Isn’t the homeowner’s exemption to Labor Law sec. 240(1) an exemption to that statute?  Is there any case law to support that a defendant homeowner must plead the exemption as an affirmative defense to sec. 240(1) liability?

The Appellate Division, Third Department in Davidson v. Ambrozewicz recently stated in dicta that the exemption must be pleaded as one of the homeowner’s affirmative defenses.  The case is within the context of a renewal motion.  Notably, the Third Department did not cite any authority for its assertion.

Here is one of the cornerstone cases on the homeowner’s exemption — Bartoo v. Buell — for background