In a recent decision, the Fourth Department reversed a Supreme Court, Erie County Order granting plaintiff’s motion for summary judgment on liability pursuant to Labor Law § 200 (“codified negligence”) and denying defendant’s cross-motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1) (“The Scaffold Law”) and 241(6) claims (“specific Industrial Code violations”).
In Pimosch v. Peroxychem, LLC., — N.Y.S.3d —, 2023 N.Y. Slip Op. 04285 (4th Dep’t 2023), plaintiff alleged he sustained injuries when he received an electric shock while performing work on a vacuum circuit breaker at the defendant’s substation. Electrical power to the circuit breaker was normally shut off for the purposes of the work plaintiff was performing. However, at the time of the accident, the breaker had not been powered down. Plaintiff alleged he was shocked while cleaning the breaker, which was performed recurrently once every three years, and then fell from a ladder he was working on as a result.
In a split decision, the Fourth Department determined the lower court erred in denying defendant’s cross-motion as it pertained to Labor Law § 240(1). The Court held that defendant met its initial burden on its cross-motion, establishing that plaintiff was not engaged in “cleaning” for the purposes of Labor Law § 240(1), based on the four factors set forth by the Court of Appeals in Soto v. J. Crew Inc., 21 N.Y.3d 562, 568, 976 N.Y.S.2d 421 (2013) regarding “routine maintenance”, which is not covered under the statute.
As per Soto, a task is “routine maintenance” if:
- The task is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises;
- The task requires neither specialized equipment or expertise, nor the unusual deployment of labor;
- The task generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and,
- In light of the core purpose of Labor Law § 240(1) to protect construction workers, it is unrelated to any ongoing construction, renovation, painting, alteration or repair project.
The majority reasoned, because the task of cleaning the breakers was “the type of job” that was performed routinely and recurrently, “with relative frequency as part of the ordinary maintenance and care of a commercial property” and plaintiffs’ original motion referred to the work as “certain inspection, testing and maintenance service work”, the work did not implicate the core purpose of Labor Law § 240(1).
In a dissenting opinion, it was reasoned that “the presence or absence of any one factor is not necessarily dispositive, if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other.” The dissent also disagreed with the majority’s view that the activity occurred with “relative frequency” within the meaning of the first prong of the Soto test, because an activity that occurs annually – or less often – is not conducted on a “daily, weekly or other relatively-frequent and recurring basis.”
The Primosch majority opinion can be found here.
The Primosch dissenting opinion can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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