In a recent decision, Castaneda v. Amsterco 67, LLC, the Appellate Division, First Department, affirmed the lower Court’s decision denying plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim, and granting defendants’ cross-motions for summary judgment dismissing plaintiff’s Labor Law §§ 240(1) and 241(6) claims. The First Department modified portions of the lower Court’s decision, denying defendants’ motion as to dismissal of the Labor Law § 200 claims.
Plaintiff commenced an action to recover damages for personal injuries he allegedly sustained when he attempted to secure a plywood board while on a ladder. Plaintiff alleged that the bottom portion of the ladder suddenly went up in the air, causing him to fall forward into a pit, causing injury. At the time of the subject incident, plaintiff was installing netting and spikes on the top portions of a building’s outer wall to remedy a pigeon nuisance problem.
At the conclusion of discovery, plaintiff moved for summary judgment and the defendants cross-moved. In the decision, the lower Court found that plaintiff failed to establish that the injury-producing work was a protected activity under Labor Law §§ 240(1) and 241(6). While the netting and spike work may have changed the outward appearance of the building, there was no evidence submitted that it changed the building’s “structure or composition” and the work is more consistent with cosmetic maintenance or decorative modification rather than an alteration envisioned by Labor Law §§ 240(1) and 241(6). Further, the subject work cannot constitute an alteration because attaching anchors to a building’s façade to connect netting and spikes, was not part of an important building-wide system, which would fall under the purview of Labor Law §§ 240(1) and 241(6).
As to the Labor Law § 200 claims, the lower Court granted the defendants’ motion, holding that the defendants met their prima facie burden by establishing they did not “supervise or control” the work, and that plaintiff failed to raise a triable issue of fact in response. However, the Appellate Division, First Department disagreed with the lower Court’s decision as to one of the defendants. It reasoned that though plaintiff was independently hired by one of the defendant’s employees, that circumstance did not foreclose the protections of Labor Law § 200. That defendant was also unable to establish that they did not have the ability to supervise or control plaintiff as a result of being independently hired by their employee because plaintiff was “permitted or suffered to perform the work” and therefore entitled to the statute’s protections. Being “independently hired” related to the question of fact regarding supervision and control.
As to the remaining defendant, the Labor Law § 200 claim was properly dismissed in consideration of the lack of evidence that it supervised or controlled the injury-producing work.
It’s important to remember that the extraordinary protections provided under the Labor Law §§ 240(1) and 241(6) must first come under an examination of whether plaintiff is involved in work that qualifies for the purposes of the statute. Labor Law § 200 comes under a different analysis, focusing instead on factors including “supervision or control” of the work.
The Castaneda decision can be found here.
For additional questions, please contact Michael J. Shields and/or Philip D. Priore.
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