In a pair of recent cases, the Second Department considered what “work” is “ancillary” to activity falling under the purview of Labor Law § 240(1).
By way of background, Labor Law § 240(1), also known notoriously as “The Scaffold Law,” protects workers from elevation-related hazards while they are involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. Bonilla-Reyes v. Ribellino, 169 A.D.3d 858, 94 N.Y.S.3d 181 (2d Dep’t 2019). The statute, specifically § 240(1), “was designed to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts” (Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 768 N.Y.S.2d 178 (2003) and is to be “construed as liberally as may be for the accomplishment of [that] purpose.” Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102 (1st Dep’t 1985) (emphasis added). The question of whether a particular activity falls within the purview of § 240(1) must be determined on a case-by-case basis and depends on the context of the work. Prats v. Port Auth. of N.Y. of N.J., 100 N.Y.2d at 883.
In Ramones v. 425 County Road, LLC, 217 A.D.3d 977, — N.Y.S.3d —- (2d Dep’t 2023), plaintiff commenced the action to recover damages for personal injuries he allegedly sustained when loading equipment, including scaffolds, poles, boards, and ladders, onto the roof of his employer’s van. That same equipment was used by his co-workers with the same employer to perform roofing and shingling work at the subject premises. Attempting to tie down the equipment, plaintiff was on top of the van’s roof, when the ladders slipped off. He and the ladders fell to the ground as a result. The Supreme Court, Suffolk County granted defendant’s motion with regard to Labor Law § 240(1) and plaintiff appealed.
The Appellate Division, Second Department reversed the Supreme Court, noting that defendants’ submissions seeking summary judgment failed to demonstrate, as a matter of law, that plaintiff’s activities in removing equipment from the worksite and loading it onto the van were not performed as part of the larger renovation project that his employer had been hired to complete on the premises, which included roofing and shingling work. Ramones v. 425 County Road, LLC, 217 A.D.3d 977 at 979. Additionally, the Second Department held that defendants failed to establish that climbing on the roof of the van was not necessary to the task of securing the equipment on the roof, and did not establish, as required, that no safety device enumerated in Labor Law § 240(1) would have prevented plaintiff’s fall. Id.(emphasis added).
In Estrella v. Zrhle Holdings, LLC, — N.Y.S.3d —-, 2023 N.Y. Slip Op. 03848 (2d Dep’t 2023), plaintiff was hired to remove carpet from a building adjacent to the building undergoing construction renovation. The carpet had been damaged by flooding in the building being renovated. When plaintiff went inside the building being renovated to get a tool to repair carpeting in the adjacent building, he fell through a temporary plywood floor.
The Appellate Division, Second Department, inter alia, reversed the denial of plaintiff’s summary judgment motion by the Supreme Court, holding that plaintiff had established, prima facie, that he was at the subject premises, which was a construction site, in order to perform duties ancillary to the construction work, which were covered under Labor Law § 240(1). Estrella v. Zrhle Holdings, LLC, 2023 N.Y. Slip Op. 03848 at 3.
To be clear, plaintiff’s injury occurred at the main construction site, though he was participating in work at a secondary site. Thus, though the work plaintiff is engaged in occurs at some location different from where principal construction is being completed, that work may nevertheless fall within the purview of Labor Law § 240(1) as “ancillary.” Additionally, as obvious as this may seem, though Labor Law protections conclude when the work is completed, Courts will still determine that taking down the very safety devices contemplated under the statute is ancillary to the work and protected under Labor Law § 240(1).
The Ramones decision can be found here.
The Estrella decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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