In a rare 4-3 decision within the Labor Law context, the New York Court of Appeals in Affri v. Basch recently held that the homeowner's exemption to Labor Law secs. 240(1) and 241(6) applied to the defendants homeowners.  The defendants hired the plaintiff, a neighbor, to perform renovations to an apartment within their home.  The work included the installation of appliances.  The plaintiff fell from a ladder while installing a vent on the roof and sustained injuries.

The focus of the appeal was whether the defendants' participation in the renovation was sufficient enough to take them out of the exemption's protection.  The evidence on summary judgment demonstrated that the defendants instructed the plaintiff to place an appliance vent on the roof and not in a window.  Was this enough to constitute direction and control?

The Majority held that the defendants merely gave instruction on aesthetics, noting that they "did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion."  The Court also noted that the defendants did not provide the plaintiff with any equipment or materials, and they were not present at the worksite when the plaintiff undertook the venting work.

In his dissent, Chief Judge Lippman (with Judges Ciparick and Jones joining), stated that the plaintiff, at the very least, raised an issue of fact as to whether the defendants were directing and controlling his work.  Judge Lippman noted that the evidence could be viewed that the defendants' conduct was more extensive than expected of the typical homeowners renovating their homes.  He pointed to several instructions about how the defendants wanted the work to be conducted.

The 4-3 split on a Labor Law question is out-of-the-ordinary.  Is it a sign of things to come under Chief Judge Lippman's tenure?