Third Department Recommends Showing Up for Work Early, but Not Too Early

In a recent decision, the Appellate Division, Third Department, modified a Supreme Court, Sullivan County decision that partially denied defendant’s motion for summary judgment dismissing plaintiff’s complaint, and denied plaintiff’s cross-motion for summary judgment as to Labor Law § 240(1).  Notably, the lower court granted defendant’s motion with respect to plaintiff’s Labor Law § 241(6) claim; and denied the defendant’s motion with respect to plaintiff’s Labor Law §§ 240(1) and 200, as well as common-law negligence, claims.

In Wheat et al. v. Town of Forestburgh, (2024 NY Slip Op 00346), plaintiff alleges that he was hired by defendant to repair damage to a salt shed located at the defendant’s highway department complex.  It was agreed between the parties that work would commence on February 4, 2021.  On February 3, 2021, plaintiff contacted defendant and asked whether he could have a rented lift delivered that day and whether he could drop off his equipment trailer.  After dropping off his equipment trailer on the evening of February 3, 2021, plaintiff utilized the rented lift to take measurements of the shed so he could purchase materials needed for the repair.  While driving the lift to park it after he concluded his measurements, he drove off of the ledge of a loading dock, elevated approximately 40 inches above the ground below, and was thrown off the lift, resulting in injuries.

Plaintiff commenced the underlying action alleging violations of Labor Law §§ 200, 240(1) and 241(6), as well as common-law negligence. 

Defendant appealed the lower court’s decision regarding the denial of its motion as to plaintiff’s common-law negligence claims.  However, the relevant appeal here is plaintiff’s cross-appeal from the Supreme Court’s denial of their cross-motion for summary judgment as to Labor Law § 240(1).

In its decision, the Appellate Division, Third Department held that defendant had met its burden and rebuffed plaintiff’s prima facie showing by raising questions of fact precluding summary judgment.  It focused first on whether plaintiff was a statutory employee entitled to protection under Labor Law § 240(1), given that it was agreed by the parties that the repair work would not commence until the next day.  A person is “employed” under the Labor Law if they are “permitted or suffered to work” (citing Labor Law § 2 [7]).  The Third Department noted that there is a material issue of fact as to whether plaintiff was employed on the date of the subject incident and affirmed the lower court’s decision. 

In a footnote, the Third Department also addressed defendant’s argument that plaintiff was taking measurements at the time of the subject incident, and therefore was not engaging an enumerated activity entitled to Labor Law protections.  The Third Department found this argument unpersuasive, as conducting the measurements was a preliminary part of the repair project for which he was hired, and therefore a protected activity under the Labor Law. 

The Wheat decision can be found here.

For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.  This publication is in no way intended to provide legal advice or to create an attorney-client relationship.  All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.