Johnson v. Cremoux: Triable-Issue Limits on Labor Law § 241(6) Homeowner Exemption and Liberal Amendment to Plead Antisubrogation Where “Insured Contract” Restores Coverage

1. Introduction

Case: Johnson v Cremoux, 2026 NY Slip Op 02635 (App. Div., 2d Dep’t Apr. 29, 2026).
Parties: Anthony Johnson (plaintiff, employee of Scott Bavosa Construction Corp.); Gerard and Catherine Cremoux (homeowner defendants/third-party plaintiffs); Scott Bavosa Construction Corp. (“Bavosa Corp.”) (defendant/third-party defendant).
Accident: Plaintiff allegedly lost multiple fingers while using a table saw during a renovation at the Cremoux property.
Claims and motion practice: Plaintiff pursued, among other theories, Labor Law § 241(6) premised on alleged violations of 12 NYCRR 23-1.5, 23-1.12, and 23-9.2. The Cremoux defendants sought dismissal relying principally on the homeowner exemption. Bavosa Corp., facing a third-party indemnification claim, sought leave to amend its answer to assert the antisubrogation doctrine.

Key issues: (i) whether the record eliminated triable issues as to the Labor Law § 241(6) homeowner exemption; (ii) whether either side was entitled to summary judgment on § 241(6) liability based on alleged Industrial Code violations tied to a missing saw blade guard; and (iii) whether Bavosa Corp. could amend to plead antisubrogation where an employee-injury exclusion was potentially overridden by an “insured contract” exception tied to contractual indemnity.

2. Summary of the Opinion

  • Homeowner exemption / § 241(6) dismissal: The Second Department held the Supreme Court erred in granting the Cremoux defendants summary judgment dismissing the § 241(6) claim. Both sides’ submissions left triable issues of fact concerning whether the premises qualified as a one- or two-family dwelling for exemption purposes.
  • Plaintiff’s § 241(6) summary judgment: The denial of plaintiff’s motion for summary judgment on § 241(6) liability was affirmed. Although plaintiff made a prima facie showing (no guard shown in photos; plaintiff affidavit; equivocal owner testimony), Bavosa Corp. raised a triable issue via employee affidavits asserting a guard was available.
  • Amendment to plead antisubrogation: The Second Department held Supreme Court should have granted Bavosa Corp. leave to amend its third-party answer to add antisubrogation. The proposed defense was not “palpably insufficient” or “patently devoid of merit” because the policy’s employee-injury exclusion was subject to an exception for liability assumed under an “insured contract,” and the construction contract contained indemnity language potentially restoring coverage for the very risk at issue.

3. Analysis

A. Precedents Cited

1) Labor Law § 241(6) coverage and the homeowner exemption framework

  • Cadena v Kupferstein and Miller v Shah (also citing Lazo v Ricci) were used to restate that the homeowner exemption’s “direct or control” component is construed strictly and focuses on whether the owner supervised the method and manner of the work. While “direct or control” was not the dispositive fact dispute here, these cases supplied the doctrinal backdrop for analyzing the exemption’s limits.
  • Manfredo v Marvin & Mario Constr., Inc., quoting Van Amerogen v Donnini, was cited for the rule that the homeowner exemption does not apply where the premises is used “entirely and solely for commercial purposes.”
  • Bartoo v Buell was cited for the counterbalancing principle: the exemption may still apply when the contracted work relates directly to residential use even if it also serves a commercial purpose. This matters because the exemption inquiry is fact-sensitive and can turn on mixed-use realities.
  • Hannan v Freeman supported the conclusion that, on similar records, triable issues can preclude summary resolution of the exemption—here, the mother-in-law’s living arrangement and shared household indicia created uncertainty as to whether the property functioned as a one- or two-family dwelling for exemption purposes.

2) § 241(6) elements, Industrial Code specificity, and summary judgment burdens

  • Misicki v Caradonna and Perez v 286 Scholes St. Corp. were cited for the foundational proposition that Labor Law § 241(6) imposes a nondelegable duty and requires compliance with the Commissioner’s specific regulations.
  • Zaino v Rogers (and again Cadena v Kupferstein) was used for the rule that a plaintiff must show a violation of an applicable Industrial Code provision and proximate cause.
  • Winegrad v New York Univ. Med. Ctr. was invoked to enforce the summary judgment sequencing rule: if the movant fails to make a prima facie showing, the motion must be denied regardless of opposition. The court applied this to the Cremoux defendants’ dismissal bid because their proof did not eliminate factual disputes about Industrial Code compliance (guard availability/removal).
  • Alvarez v Prospect Hosp. was cited for the general standard governing summary judgment and prima facie entitlement, supporting the court’s view that plaintiff’s proof initially sufficed to shift the burden.
  • Cruz v 1142 Bedford Ave., LLC and Cadena v Kupferstein were cited to confirm that disputes about whether a required safety feature was available/used can create triable issues defeating § 241(6) summary judgment.

3) Evidentiary gatekeeping: undisclosed witnesses and out-of-state affidavits

  • Awai v Benchmark Constr. Serv., Inc. and Perez v New York City Hous. Auth. were cited for the principle that failure to disclose a witness can warrant preclusion. The court distinguished those concerns because the witnesses were disclosed during the deposition of Bavosa Corp.’s owner.
  • Willingham v LeJarde and Wise v Boyd Bros. Transp., Inc. were cited to hold that the absence of a certificate of conformity for affidavits sworn in another state is not necessarily fatal—allowing the employee affidavits sworn in New Jersey to be considered.

4) Liberal amendment and pleading antisubrogation

  • Ulster Sav. Bank v Fiore and HLI Rail & Rigging, LLC v Franklin Exhibit Mgt. Group, LLC framed the standard: leave to amend should be freely given absent prejudice/surprise and if the amendment is not palpably insufficient or patently devoid of merit.
  • Matter of Chustckie, quoting Ditech Fin., LLC v Khan, placed the burden on the party opposing amendment to show prejudice/surprise or facial lack of merit.
  • Deutsche Bank Natl. Trust Co. v Kreitzer and Kennedy v Bracey reinforced the presumption favoring amendment where there is no meaningful prejudice and the defense is at least potentially viable.
  • Storms v Dominican Coll. of Blauvelt and Homeland Ins. Co. of N.Y. v National Grnage Mut. Ins. Co. supplied the antisubrogation rule statement: an insurer cannot recover from its own insured for the very risk covered.
  • Porter v Annabi and Blanco v CVS Corp. were cited by “cf.” to indicate contrasting outcomes where antisubrogation arguments failed on different policy/coverage showings, underscoring that the doctrine turns on whether the party targeted for reimbursement is insured for the relevant risk.

B. Legal Reasoning

1) Why the homeowner exemption could not be resolved on summary judgment

The court treated the exemption question as heavily fact-dependent. The plaintiff’s expert opined the building was not a one- or two-family dwelling because the mother-in-law occupied a separate unit with separate facilities and entrance. But the deposition record also showed factors consistent with a single household or family-style arrangement: shared cooking and groceries, daily time spent in the Cremoux unit, partial shared entrance use, and no rent.

Critically, the court held neither side eliminated factual disputes—meaning the Cremoux defendants could not win dismissal, and the plaintiff could not win exemption-defeating summary judgment either. The decision thereby emphasizes that, where occupancy and household arrangements blur formal unit boundaries, the homeowner exemption is often not amenable to summary disposition.

2) The § 241(6) “specific rule + proximate cause” model applied to a table saw

The court reiterated the § 241(6) structure: a nondelegable duty exists, but liability requires a violation of an applicable, sufficiently specific Industrial Code provision that proximately causes injury. The plaintiff tied his injury to alleged failures regarding guarding and safe operation of equipment (citing 12 NYCRR 23-1.5, 23-1.12, and 23-9.2) and argued the absence of a saw blade guard was causal.

3) How the record created a classic triable issue: “no guard” vs “guard available”

On plaintiff’s motion, the court found prima facie proof in: (i) plaintiff’s affidavit stating no guard was present; (ii) photos not depicting a guard on or near the saw; and (iii) the Bavosa owner’s equivocation (he could not definitively say a guard was available and noted guards were often removed). That was enough to shift the burden.

But Bavosa Corp. countered with affidavits from two employees present at the worksite stating a guard was on the premises and available for use. The court admitted these affidavits despite procedural attacks (witness disclosure and lack of certificate of conformity), and concluded that their substance created a triable issue about whether the cited Industrial Code sections were violated—defeating summary judgment for plaintiff.

On the Cremoux defendants’ dismissal motion, the same evidentiary uncertainty cut the other way: their proof did not eliminate the possibility of a violation, so they failed to meet their prima facie burden under Winegrad v New York Univ. Med. Ctr..

4) Amendment to add antisubrogation: plausibility grounded in “insured contract” coverage

Bavosa Corp. sought to plead that the Cremoux defendants’ insurer (or a carrier standing in their shoes) could not pursue indemnification/subrogation against Bavosa for a risk Bavosa was insured to cover. The court focused on the policy mechanics described in the opinion:

  • The policy contained an exclusion for bodily injury to an employee of the insured arising out of employment.
  • However, that exclusion did not apply to liability assumed by the insured under an “insured contract.”
  • Bavosa’s construction contract promised to indemnify the Cremoux defendants for broad categories of liabilities and claims.

From these premises, the court concluded that coverage could exist for the indemnity obligation notwithstanding the employee injury exclusion. If so, antisubrogation potentially applies because the carrier cannot pursue recovery against its own insured for a covered risk. At the pleading-amendment stage, this was enough to make the defense not palpably insufficient and not patently devoid of merit, requiring leave to amend absent prejudice—none of which was shown.

C. Impact

1) Homeowner exemption: summary judgment resistance where “family dwelling” facts are mixed

The decision signals that courts will be reluctant to resolve the homeowner exemption when the building configuration (separate unit amenities/entrances) conflicts with functional family living facts (shared meals, frequent inter-unit movement, nonpayment of rent). Litigants should expect that nuanced “how the home is actually used” evidence can force trial-level resolution.

2) § 241(6) saw-guard cases: availability evidence can be dispositive at the summary stage

The opinion illustrates how § 241(6) claims involving allegedly missing guards may turn not only on whether a guard was installed at the moment of injury, but whether it was available and whether workers removed it—factual questions that can defeat summary judgment for either side depending on the competing proof.

3) Practice and insurance: antisubrogation becomes a realistic late-stage defense when “insured contract” language is in play

By granting leave to amend after the note of issue, the court underscores that antisubrogation is not merely an abstract coverage concept; it can be a litigation defense reshaping third-party indemnity claims where contractual indemnity triggers an “insured contract” pathway around an employee-injury exclusion. Practically, contractors and owners should scrutinize:

  • the exact indemnity clause wording,
  • the CGL policy’s employee injury exclusion, and
  • the “insured contract” exception and any endorsements affecting it.

4. Complex Concepts Simplified

  • Labor Law § 241(6): A New York construction safety statute that makes owners/contractors responsible for complying with specific safety regulations. It is “nondelegable,” meaning they cannot avoid responsibility by hiring someone else—but liability still requires proof that a specific regulation was violated and that violation caused the injury.
  • Industrial Code (12 NYCRR) provisions: Detailed safety regulations issued by the Department of Labor. A § 241(6) claim must be tied to an applicable, concrete rule (not just a general safety principle).
  • Homeowner exemption: Owners of one- and two-family dwellings are often exempt from certain Labor Law liability when they do not “direct or control” the work. Whether the property truly qualifies as a one- or two-family dwelling can depend on real-world use, not just formal layout.
  • Summary judgment: A pretrial ruling granted only when there are no genuine disputes of material fact. If competing evidence creates a real factual disagreement (e.g., whether a saw guard was available), the court will deny summary judgment.
  • Antisubrogation doctrine: An insurer cannot “subrogate” (seek reimbursement) against its own insured for the same risk the policy covers. If a contractor is covered for an indemnity obligation (often via “insured contract”), an insurer may be barred from pursuing that contractor to recoup what it paid.
  • Certificate of conformity: A formality sometimes required for out-of-state notarizations. This decision reiterates that its absence is not automatically fatal and may be overlooked where the defect is not prejudicial.

5. Conclusion

Johnson v Cremoux delivers two practice-significant clarifications. First, it demonstrates the Second Department’s insistence that the Labor Law § 241(6) homeowner exemption and Industrial Code compliance issues will not be decided on summary judgment where household use and equipment-guard facts are genuinely disputed. Second, it reinforces New York’s liberal amendment policy by permitting a late-added antisubrogation defense where contractual indemnity may transform an otherwise excluded employee-injury claim into covered “insured contract” liability—potentially barring an insurer-backed indemnity recovery against the contractor for the very risk insured.