Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the June 20, 2013 mailing of "Constructive Notice":

Date of Closing Determines

Scaffold Law Liability

Jon purchased a home from Randy pursuant to an installment contract. The final payment was made on the contract, but the closing did not occur until more than a year later. In the interim, Jon hired Keith to install new siding on the home. Keith fell from a ladder while working on the home and brought an action against both Jon and Randy under the “Scaffold Law,” Labor Law §240(1). Randy moved to dismiss, claiming that he wasn’t the “owner” of the home for purposes of §240(1). The trial court dismissed the claim, but the Appellate Division, Fourth Department, reversed. Custer v. Jordan, et al., 2013 NY Slip Op 04481 (Fourth Dept., June 14, 2013).

Randy had never lived in the home, was not in possession at any time while the work was being performed, and had not hired Keith. The Court noted that “ownership of the premises where the accident occurred, standing alone, is insufficient to impose liability under section 240(1) on an out-of-possession property owner who does not contract for the injury-producing work.”The installment contract required the procurement of a survey and delivery of a deed to consummate the sale. Because neither of these had yet taken place at the time of the accident, the Court concluded that there was “some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest" that did not shield Randy from liability under §240(1).  

The Court also addressed the applicability of the “homeowner’s exemption,” designed to shield owners of one and two-family dwellings from liability.  Inasmuch as Randy had never lived in the home and he derived a commercial benefit from the property by earning interest on Jon's payments under the contract, the Court concluded that Randy was not entitled to the benefit of the homeowner exemption. 


This is the latest case in the vast, complicated history of the Scaffold Law. The delay in formally consummating the transfer of title appears to have left the “legal title” in Randy, with “equitable title” in Jon on the date of the injury.  How does that translate into the “nexus between the owner and the worker” required to  support liability? Similarly, how can Randy be an “owner” for purposes of imposing liability, while at the same time, not be an “owner” for purposes of the homeowners exemption? The Court of Appeals has a demonstrated appetite for Scaffold Law cases. Perhaps this case will also wind up on the menu.