An exception exists under §§ 240, 241 and 241-a of the N.Y. Labor Law which is provided to an owner of one and two-family dwellings who contract for, but do not direct or control, work. Khela v. Neiger, 85 N.Y.2d 333, 624 N.Y.S.2d 566 (1995). Control for statutory purposes does not include an owner’s actions in reviewing progress of the work, color selection, or basic design considerations. Kelly v. Bruno and Son, Inc., 190 A.D.2d 777, 593 N.Y.S.2d 555 (2d Dep’t 1993). Even “aggressive inspection” and requests to fix imperfections will not be considered control of the work being performed. Valentia v. Giusto, 182 A.D.2d 987, 581 N.Y.S2d 939 (3d Dep’t 1992). For example, a homeowner was found to be liable for site safety when he acted as his own general contractor, supplied the materials, choose the design, and acquired and constructed scaffolding. Emmi v. Emmi, 186 A.D.2d 1025, 588 N.Y.S.2d 481 (4th Dep’t 1992). Determining whether a homeowner fits within the exception is a factual issue, and it depends upon the degree of supervision and control the owner exercises over the method and manner in which work was performed. Ennis v. Hayes, 152 A.D.2d 914, 544 N.Y.S.2d 99 (4th Dep’t 1989).

The interpretation of the meaning of dwelling has been inferred in several cases. In 1991, the Court of Appeals held that the exemption is dependant on the building’s function and that it will not apply to homeowners who intend to use their one or two-family premises entirely and solely for commercial purposes. Van Amerogen v. Donnini, 78 N.Y.2d 880, 573 N.Y.S.2d 443 (1991). In 1985, the Third Department did not allow a homeowner to use the exception because her husband, a physician, used the basement of the premises as his office. Zahn v. Pauker, 107 A.D.2d 118, 486 N.Y.S.2d 442 (3d Dep’t 1985). However, in Bartoo v. Buell the Court of Appeals held that when an owner of a one or two-family dwelling contracts for work that directly relates to the residential use of the home, even if the work also serves a commercial purpose, the owner will be shielded by the exemption from absolute liability under Labor Law § 240 and 241. 87 N.Y.2d 362, 639 N.Y.S.2d 778 (1996).

The purpose for which the dwelling was originally purchased is also a relevant factor. For example, the exception will not apply to a realtor who had intended to purchase the a single-family dwelling for renovation and resale, as this would be a commercial purpose. Morelock v. Danbrod Realty Corp., 203 A.D.2d 733, 610 N.Y.S.2d 657 (3d Dep’t 1994). The current test, therefore, focuses not on the owner’s residential status in the dwelling, but the residential nature of the site and purpose of the work. Castro v. Mamaes, 51 A.D.3d 522, 858 N.Y.S.2d 137 (1st Dep’t 2008). If the primary use of the structure is as a residence, the exception may be available. Umanzor v. Charles Hofer Painting & Wallpapering, Inc., 48 A.D.3d 552, 852 N.Y.S.2d 205 (2d Dep’t 2008).