New York Labor Law

WHAT TYPE OF WORK DOES §240 COVER?

Frequently, we refer to §240 as providing protection to construction workers, but the statute applies to a much broader range of activities than just construction work. By its own terms, the statute also covers people who perform any type of erection or demolition, repairing or altering, or the painting, pointing, or cleaning of a building or structure. This area of the law has given rise to some very interesting arguments and decisions. Recently, the courts have had to decide when the statute will apply to cleaning activities.

In Bustamante v. Chase Manhattan, 241 A.D.2d 327 (1st Dept. 1997), plaintiff was standing on a ladder while cleaning the tops of partitions within defendant's bank when he fell sustaining injuries. The Court granted plaintiff summary judgment under §240, stating that the statute applies to cleaning of a building. The Court distinguished the cleaning of windows in residential premises, which has been held not to come under the statute, from office-cleaning activities. Certainly, the Court could have justified the opposite result, stating that cleaning of a building for purposes of §240 requires more involved types of activities, such as the washing down of the building walls with chemicals and that it is more than just the routine-maintenance type cleaning of an office building, but it did not.

The Third Department in Vernum v. Zilka, 241 A.D.2d 885 (3rd Dept. 1997), held that the plaintiff who was shoveling snow off the roof of a residential building was cleaning the building for purposes of §240(1). Drawing a distinction between routine domestic cleaning of a home from the type of work plaintiff was performing, the Court rejected the defendant's claim that the work was nothing more than routine maintenance, citing Webster's Dictionary, 9th Ed., which defines cleaning as a ridding of dirt, impurities, extraneous material. The court held that since plaintiff was removing extraneous material, the snow, he was performing cleaning work protected by the statute.

In Chapman v. IBM, 686 N.Y.S.2d 888 (3rd Dept. 1999), plaintiff, employed by a company providing janitorial services to defendant's building, was injured when the conference table he was standing on while cleaning the overhead light fixtures, collapsed. The Court affirmed summary judgment to plaintiff under §240, holding that the plain language of this statute affords safeguards to those engaged in the cleaning of a building, citing Vernum v. Zilka, 241 A.D.2d 885.

Bauer v. Female Academy of the Sacred Heart: 682 N.Y.2d 708 (2002) This case puts to rest 3 significant issues involving the applicability of §240 and §202. The first is the Court's holding that cleaning windows in a non-residential structure is an activity covered by §240(1) even when performed in a non-construction setting. The second is whether §202 of the Labor Law, the window washers statute, is the exclusive remedy for those window washers who fall from an elevated height, thereby precluding a claim under §240(1). After reviewing the legislative history of §202, the second significant holding by the Court was that §202 and §241 are not mutually exclusive. The Court held, "the inescapable conclusion is that while the statutes will sometimes apply to the same fact patterns, they do not in every case. These sections serve different goals, apply to different defendants and have been interpreted differently. The fact that Labor Law §202 coverage may often overlap with Labor Law §240(1) coverage is not a sound reason to imply exclusivity." Third, the Court ruled that §202 does not amount to a per se statutory violation since the 1970 amendment which removed the previous mandate that all owners lessees and those responsible provide anchors on all windows and replaced it with language that required reference to the Board of Standard and Appeals regulations. Following the same reasoning that the Courts have used in ruling that a violation of §241(6) does not amount to absolute liability, and that the violation of an Industrial Code Rule is "but some evidence of negligence," the same reasoning holds true for §202. Thus, §202 is not an absolute liability provision, but one of comparative negligence. Since the plaintiff's verdict at trial was based on a violation of §202 (the Court having previously dismissed the §240(1) claim) the jury verdict could not be substituted as a violation of §240(1). Therefore, the case was remanded for another trial.

What is alteration work? Joblon v. Solo, 91 N.Y.2d 457 (1998)

In Joblon v. Solo, 91 N.Y.2d 457, the Court of Appeals was called upon to provide some clarification as to what the term "alteration" meant as it is used in the context of §240(1). Joblon, an electrician, was injured when he fell from a ladder while installing a wall clock in an office building. Since there was no electrical outlet, he was required to chisel a hole through a block wall above the door in order to run the electrical conduit from the clock, through the wall, into the adjoining room where an available power source was located. Defendant argued that this did not constitute alteration work and was purely maintenance work. The plaintiff claimed it did constitute alteration work and summary judgment should be granted.

After reviewing several of the cases cited in support of both parties' respective positions, Judge Kaye pointed out that some of the Appellate Division decisions seemed to "(reach) inconsistent results on essentially indistinguishable facts." She noted that while the Second Department held that a plaintiff who was switching a cable television hook up on a telephone was engaged in alteration work and the Fourth Department determined that a plaintiff who was removing a filter on a HBO line attached to a pole was also altering a structure (Tauriello v. New York Tel. Co., 199 A.D.2d 377, 605 N.Y.S.2d 373 (2d. Dept 4 1993); Dedario v. New York Telephone, Co. 162 A.D.2d 2nd 1001), the Second and Third Departments have concluded that plaintiffs who were installing antennas on buildings were not performing alteration work (Kasselback v. Liberty, 182 A.D.2d 2nd 741: Borzell v. Peter, 285 A.D.2d 983).

The court reviewed its own prior precedence under §240(1) of the Labor Law and stated that the court wanted to set guidelines for the definition of alteration which would not "ignore our prior holdings." Declaring that it would be much easier to apply a "bright line" definition it was more important to arrive upon a decision that would reflect the legislative intent of §240(1), and to be consistent with prior case law. The Court reasoned that routine maintenance work, of course, was never intended to be covered under the statute. Maintenance work does not result in a significant physical change to the building or its components. Therefore, if the work does result in a substantial physical change it crosses the line from maintenance work to alteration type work protected by §240(1). In order to resolve the issue, the Court held "we conclude that altering within the meaning of Labor Law §240(1) requires making a significant physical change to the configuration or composition of the building or structure. Upon the facts before the court, they concluded that the plaintiff was performing work, which amounted to a significant change to the configuration or composition of the building.

On the same day, the Court decided Weininger v. Hagedorn, 91 N.Y.2d 958. Here, plaintiff was injured when he fell from a ladder while running computer and telephone cables through the ceiling of an existing computer room. He was required to stand on a ladder to access a series of holes punched in the ceiling and to pull wires through canals that had been made above the ceiling. The court found that he was performing alteration work because his task involved "making a significant physical change to the configuration or compensation of the building or structure" and was not a simply routine activity. The matter was sent back for a trial however, upon a finding that there existed an issue on causation.

WORK ASSOCIATED WITH CONSTRUCTION PROJECT: Prats v. Port Authority of N.Y. & N.J., 100 N.Y.2d 878

Often times the court is confronted with a set a facts in which the worker claims the injury occurred while in the course of performing work which is covered by §240. The defendant, however, argues that the specific activity being performed by the worker at the moment of injury is not an activity specifically listed in the statute and for that reason §240 does not apply. Provided certain conditions have been met, the Court of Appeals has held that where the activity being performed by the plaintiff, is an activity which constitutes a necessary and integral part of the overall project, and that project is one governed by §240, then the plaintiff's activities, although not specifically itemized in the statute, are also covered.

In Lombardi v. Stout, 80 NY2d 290 the Court of Appeals was confronted with just such an issue. The defendant argued that the plaintiff was injured while in the process of sawing a branch of a tree from a ladder which he claimed was improperly positioned. The plaintiff fell from the ladder when the branch swung out, knocking him to the ground. Since a tree is not defined as a building or structure (see, Louis-Moors v. Contel of N.Y. 78 N.Y.2d 942, 573 N.Y.S.2d 636) the act of cutting a tree branch is not governed by §240. The plaintiff argued that the statute, being remedial in nature, is to be construed as liberally as possible to achieve this purpose. See, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102. Moreover, the plaintiff's act of trimming the tree was part of the larger project which involved substantial renovations to the house located on defendant's property. Finding in favor of the worker, the court held it is well within the intended purposes of the statute to apply its provisions to the tree removal operation performed as part of the overall scope of the house renovations and paving, activities. Subsequent to this decision, several courts referred to this incorporation of plaintiff's specific activities into the broader overall project to be appropriate when the plaintiff's activities are found to be a "necessary and integral part" of the overall project.

Another example of this situation was dealt with in Covey v. Iroquois Gas Transmission System LP, 89 N.Y.2d 952, 655 N.Y.S.2d 854 where the plaintiff was injured when he fell from a backhoe into a trench while he was attempting to replace hydraulic fluid in the backhoe. The defendant argued that the activity the plaintiff was engaged in at the time of the accident was nothing more than routine maintenance work, an activity which is not covered by §240. Although the court acknowledged that the nature of the plaintiff's work, in fact, was a maintenance type activity, it was nonetheless protected under §240(1) "…inasmuch as the work performed by plaintiff was part of the construction of the pipeline" citing Lombardi v. Stout 80 N.Y.2d 290, 590 N.Y.S.2d 55. Here again the Court of Appeals looked to the broader picture as opposed to the specific, immediate activity being performed by the plaintiff at the time of the injury in order to determine whether the plaintiff was a member of the class intended to be protected by the statute. Thus, where all of the other requirements under §240 have been met, i.e.: the plaintiff is a worker, employed on a project which is covered by the statute, the defendants are members of the class of people responsible, the plaintiff's work required him/her to be exposed to an elevation differential and the plaintiff's injuries are a direct consequence of the forces of gravity due to the failure of a safety device, then, plaintiff is entitled to the protection of the statute even if the plaintiff's immediate activity is not otherwise listed in the statute. If one or more of these elements is missing then obviously the plaintiff should not recover under §240. An example would be an individual who sustains an injury from a fall while in the course of inspecting a building or structure. If the inspection is a necessary and integral part of an otherwise covered project, and that project is underway at the time of the plaintiff's injury then the plaintiff would be entitled to recover. However, if the plaintiff is injured while in the course of his inspection work, and construction, excavation, demolition, alteration, repair, pointing, cleaning, etc. has not yet commenced, then plaintiff's activities will not be covered under §240. The simple reason is that the statute does not begin to apply until one of the covered activities listed in the statute has been started. It was just this scenario which arose in Martinez v. City of New York 93 N.Y.2d 322. Here Judge Ciparick held that the plaintiff, who was performing work in the course of inspecting various school buildings in order to catalog the presence of asbestos which needed to be removed, could not be covered under §240(1). A close examination of the facts reveals the reason why. The plaintiff's employer had been hired to perform this survey and upon completion of this work their services were concluded. Only after the final report was filed would the school district then engage in the process of securing funds to perform the removal work, let the project out to bid, retain the services of an appropriate contractor, and only then the project would commence. Thus, at the time the plaintiff sustained his injuries there was no construction, excavation, demolition or repair work which was being performed. His activities of inspection type work was not in and of itself covered by the statute. The plaintiff argued, however, that the inspection work he was performing should be classified as a necessary and integral part of the construction project, since, no construction work could be commenced until he had completed his survey. Judge Ciparick pointed out that since there was no activity covered by the statute taking place at the time of his injury, his fall from the ladder would not be activity governed under §240. Therein, she wrote that to accept the plaintiff's rationale for concluding that his work should be covered by §240(1) of the Labor Law would be to "…improperly enlarge(s) the reach of the statute beyond its clear terms." Unfortunately, as so frequently occurs, some litigants incorrectly synthesized the decision, arguing that the Court of Appeals has now rejected the necessary and integral part test. This is what occurred in Rogers v. C/S Associates Limited Partnership, 708 N.Y.S.2d 524 (3rd Department 6/8/00). Here the plaintiff, a landscaper, was injured when he fell some six feet off of the flatbed truck he was unloading trees from. He argued that his services as a landscaper were part of the overall construction project which was taking place and therefore his activities were to be considered a necessary and integral part of an overall covered project. The Third Department rejected the plaintiff's argument holding that it was "merely fortuitous" that his injury occurred in connection with a construction project and that the Court of Appeals had recently questioned the validity of the necessary and integral part test in the Martinez case. Armed with this decision, several courts began to focus more intently only on plaintiff's immediate task at the moment of injury and to the exclusion of the overall project. Gradually these decisions became more and more assertive in their statements that the Court of Appeals has rejected the integral and necessary part test.

In October of 2003 the Court of Appeals handed down its decision in Prats v. The Port Authority of New York and New Jersey. Here the plaintiff was injured while in the course of his employment for A.W.L. Industries, a company that contracted with the defendant Port Authority to work on the air conditioning system at the World Trade Center Complex. The work involved cleaning, repairing and rehabilitating air handling units in several of the buildings. In order to locate which units need to be repaired, each unit had to be inspected first. The plaintiff, an assistant mechanic, was required to perform various tasks which included repair work on those air conditioning systems which were determined to be in need of repair. This work would include changing bearings, motor sheaves and fly wheels. On the day of the accident the plaintiff was readying an air handling unit for inspection. The plaintiff fell from a ladder as he was assisting a co-worker in preparation for the inspection of the unit. The defendant argued that at the time of plaintiff's injury he was neither engaged in erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. The work he was performing, according to the defendants, was nothing more than inspection work and therefore the Martinez decision required a dismissal of plaintiff's §240 claim. Judge Rosenblatt, writing on behalf of the court, readily distinguished the Martinez decision noting that Martinez involved separate, sequential phases involving different employees working for different contractors. Here the plaintiff's inspection work was not in anticipation of his employer's work nor did it take place after or before his employer's work was completed. The court characterized the defendant's argument as requiring the court to employ an over literal interpretation of what was taking place at the time of plaintiff's injury. Job titles are not dispositive of whether a specific employee is covered under §240. Here the plaintiff was working as a mechanic and was engaged in the kind of work the Legislature intended to protect under §240(1). The court cautioned against the categorical interpretation of a specific activity noting that the intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts. "In sum, the question whether a particular inspection falls within §240(1) must be determined on a case-by-case basis, depending on the context of the work. Presumably this decision will require many of the cases listed below to be viewed in a more encompassing light.

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