Binding
precedents of the Court of Appeals, as well as the Appellate
Division, First and Second Department hold that a worker assigned by
his employer to perform repairs to a damaged or inoperable structure
are a covered activity for purposes of the Labor Law, not merely
routine maintenance. See Prats v. Port Authority of New
York and New Jersey, 100 N.Y.2d 878, 880, 768 N.Y.S.2d 178,
179, 800 N.E.2d 351, 352 (2003); Riccio v. NHT Owners, LLC,
51 A.D.3d 897, 899, 858 N.Y.S.2d 363, 366 (2d Dep’t 2008); Rios
v. WVF Paramount 545 Property, LLP, 36 A.D.3d 511, 828 N.Y.S.2d
368, 369 (1st Dep’t 2007); Bruce v. Fashion Square
Associates, 8 A.D.3d 1053, 1054, 778 N.Y.S.2d 823, 824 (4th Dep’t
2004); Kerr v. Louisville Housing, Inc., 2 A.D.3d
924, 926, 769 N.Y.S.2d 616, 619 (3d Dep’t 2003); Craft v.
Clark Trading Corp., 257 A.D.2d 886, 887, 684 N.Y.S.2d 48, 49-50
(3d Dep’t 1999); Holka v. Mt. Mercy Academy, 221
A.D.2d 949, 949, 634 N.Y.S.2d 310, 311 (4th Dep’t 1995).
Binding
precedents from all four Departments of the Appellate Division
recognize that welding is a covered activity for purposes of the
Labor Law. SeeElkins v. Robbins & Cowan, Inc., 237
A.D.2d 404, 405-406, 655 N.Y.S.2d 563, 564 (2d Dep’t 1997); Allen
v. Telergy Network Services, Inc., 52 A.D.3d 1094, 1097, 860
N.Y.S.2d 299, 303 (3d Dep’t 2008); Spadola v. 260/261
Madison Equities Corp., 19 A.D.3d 321, 323, 798 N.Y.S.2d 38, 40
(1st Dep’t 2005); Shields v. General Elec. Co., 3
A.D.3d 715, 717, 771 N.Y.S.2d 249, 252 (3d Dep’t 2004); Baum
v. Ciminelli-Cowper Co., Inc., 300 A.D.2d 1028, 1029, 755
N.Y.S.2d 138, 139 (4th Dep’t 2002); Noble v. AMCC Corp.,
277 A.D.2d 20, 714 N.Y.S.2d 495, 496 (1st Dep’t 2000).
Binding
Appellate Division, First Department precedents and precedents in
Kings County hold that “[a]n eight feet high chain link fence is a
structure within the meaning of Labor Law Section 240(1) and, an
injury occurring while in the course of [repairing, erecting or]
removing it is a covered activity [citations omitted].” Romero
v. Trump Village Apartments Two LLC, 20 Misc.3d 1145(A), 873
N.Y.S.2d 237 (Table) 2008 WL 4274483*1 (Sup.Ct. Kings County
September 16, 2008); see Carino v. Webster Place Associates, LP,
45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007);
see Riccio, 51 A.D.3d at 899, 858 N.Y.S.2d at 366; Rios,
36 A.D.3d at 511, 828 N.Y.S.2d at 369), which required covered
welding (see Elkins, 237 A.D.2d at 405-406, 655 N.Y.S.2d
at 564; Allen, 52 A.D.3d at 1097, 860 N.Y.S.2d at
303; Spadola, 19 A.D.3d at 323, 798 N.Y.S.2d at 40), on a
fence, a structure for purposes of the Labor Law. (see Carino,
45 A.D.3d at 352, 845 N.Y.S.2d at 61; Romero, 20 Misc.3d
1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483 at *1).
An
assertion that, even if a worker’s activities were otherwise
a covered repair, Labor Law § 240(1) would not apply because there
was no ongoing construction project would also fail. The Court
of Appeals, in its landmark Joblon decision, as well
as precedents binding Appellate Division, First and Second Department
precedents expressly reject the defendant-appellant’s argument,
holding that where the worker is performing otherwise “protected
activities under Labor Law § 240(1)”, expressly including repairs,
alteration of a structure, or painting, said work “need not have
been incidental to the other listed activities, such as construction,
repair, or alteration, to be covered [citations omitted].” Loreto
v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790
N.Y.S.2d 190, 191-192 (2d Dep’t 2005) (“The scraping and painting
performed by the plaintiff were protected activities under Labor Law
§ 240(1) and need not have been incidental to the other listed
activities, such as construction, repair, or alteration, to be
covered (see De Oliveira v. Little John's Moving, 289
A.D.2d 108, 734 N.Y.S.2d 165, citing Perez v. Spring Cr. Assocs., 265
A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak
Co., 258 A.D.2d 916, 685 N.Y.S.2d 515).”); see Joblon
v. Solow, 91 N.Y.2d 457, 463-464, 672 N.Y.S.2d 286, 289-290, 695
N.E.2d 237, 240-241 (1998); Blair v. Cristani, 296 A.D.2d
471, 472, 745 N.Y.S.2d 468, 468-469 (2d Dep’t 2002); De
Oliveira v. Little John's Moving, Inc., 289 A.D.2d 108, 734
N.Y.S.2d 165, 166 (1st Dep’t 2001) (“The scraping performed by
plaintiff is encompassed within the term "painting" in
section 240(1) (see, Perez v. Spring Creek Assocs., 265
A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak
Co., 258 A.D.2d 916, 685 N.Y.S.2d 515), and need not have been
incidental to the other listed activities, such as construction,
repair or alteration, to be covered (cf., Bustamante v. Chase
Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284; Chapman
v. International Bus. Machs., 253 A.D.2d 123, 127, 686
N.Y.S.2d 888).”); Cornacchione v. Clark Concrete Co.,
Inc., 278 A.D.2d 800, 801, 723 N.Y.S.2d 572, 573 (4th Dep’t
2000); Chapman v. International Business Machines
Corporation, 253 A.D.2d 123, 127, 686 N.Y.S.2d 888, 891-892
(3d Dep’t 1999) (“We note that, under this statute, ‘cleaning *
* * of a building or structure’ is listed in the alternative to a
series of other covered activity, i.e. covered activities include the
‘erection, demolition, repairing, altering, painting, cleaning or
pointing of a building’ (Labor Law § 240[1] [emphasis supplied]
). In our view, under a plain reading of the statute, there is
no requirement or condition that commercial cleaning be incidental to
the other listed activities, such as construction, repair or
alteration activity, to be covered.”). In its landmark decision
in Joblon, 91 N.Y.2d at 463-464, 672 N.Y.S.2d at 289-290,
695 N.E.2d at 240-241, the Court of Appeals, expressly rejecting this
argument, held as follows:
“Thus,
defendants suggest that a guiding principle for courts should be to
examine the context of the work leading to the injury, and only when
it is performed as part of a building construction job should Labor
Law § 240(1) liability attach.
Such
a rule would, of course, ignore prior holdings that workers injured
while cleaning a railway car (Gordon v. Eastern Ry. Supply, 82
N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra ), repairing an
electrical sign (Izrailev v. Ficarra Furniture, 70 N.Y.2d 813,
523 N.Y.S.2d 432, 517 N.E.2d 1318) or painting a house (Rivers v.
Sauter, 26 N.Y.2d 260, 309 N.Y.S.2d 897, 258 N.E.2d 191) come
within the ambit of the statute even though they were not working at
a building construction site. Furthermore, we have
already defined a ‘structure,’ for purposes of Labor Law §
240(1), as ‘'any production or piece of work artificially built up
or composed of parts joined together in some definite manner'’
(Lewis Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573
N.Y.S.2d 636, 578 N.E.2d 434). Now to limit the statute's
reach to work performed on a construction site would eliminate
possible recovery for work performed on many structures falling
within the definition of that term but found off construction sites
(see, e.g., id. [telephone pole]; Gordon v. Eastern Ry.
Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra
[railway car] ).”
In Cornacchione,
278 A.D.2d at 801, 723 N.Y.S.2d at 573, the Appellate Division,
Fourth Department held that other statutorily enumerated activities,
such as painting or repairs, need not be incidental to other listed
activities, such as construction or renovation, to fit within Labor
Law §§ 240(1) or 241(6):
“Finally,
we conclude that the painting work being performed by plaintiff's
decedent was an activity covered by Labor Law § 240(1) and §
241(6). “[T]here is no requirement or condition that [painting] be
incidental to the other listed activities, such as construction,
repair or alteration activity, to be covered” (Chapman
v. International Bus. Machs.,
253 A.D.2d 123, 127, 686 N.Y.S.2d 888; see also, Bustamante
v. Chase Manhattan Bank, 241
A.D.2d 327, 659 N.Y.S.2d 284). We therefore modify the order in
appeal No. 1 by denying the motion of Piscitell in part and
reinstating the Labor Law § 241(6) claim against it.”
In Blair,
296 A.D.2d at 472, 745 N.Y.S.2d at 468-469, the Appellate Division,
Second Department, citing Cornacchione, 278 A.D.2d at
801, 723 N.Y.S.2d at 573, identically held that painting, one of the
statutorily enumerated activities, like performing repairs, was a
covered activity for purposes of Labor Law § 241(6), independent of
any construction or renovation:
“The
plaintiff is also entitled to summary judgment on the cause of action
pursuant to Labor Law § 241(6) and the branch of the defendant's
motion which was to dismiss that cause of action should have been
denied. Contrary to the determination of the Supreme Court, the
activity in which the plaintiff was engaged when he was injured falls
within the scope of Labor Law § 241(6) (see 12 NYCRR
23-1.4[b][13]; Cornacchione
v. Clark Concrete Co.,
278 A.D.2d 800, 723 N.Y.S.2d 572; Vernieri
v. Empire Realty Co.,
219 A.D.2d 593, 595, 631 N.Y.S.2d 378).”
It
is irrelevant whether repair work, a statutorily enumerated activity,
took place in a construction context or incidental to a construction
or renovation project (see Blair, 296 A.D.2d at 472, 745
N.Y.S.2d at 468-469; Cornacchione, 278 A.D.2d at 801, 723
N.Y.S.2d at 573), as repairing a broken fence constitutes a
statutorily enumerated covered repair for purposes of both Labor Law
§ 240(1) (see Beehner, 3 N.Y.3d at 752, 821 N.E.2d at
941, 788 N.Y.S.2d at 637; Prats, 100 N.Y.2d at 880, 882,
768 N.Y.S.2d at 179, 181, 800 N.E.2d at 352, 354; Juchniewicz,
46 A.D.3d at 624, 848 N.Y.S.2d at 257-258; Bruce, 8 A.D.3d at 1054,
778 N.Y.S.2d at 824; Franco, 280 A.D.2d at 409-410, 721
N.Y.S.2d at 5).
— by Richard A. Klass, Esq.
-----------
copyr. 2014 Richard A. Klass, Esq.
The firm's website:
www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
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