First Department Digs Deep to Define “Work” Under Labor Law § 240(1)

If you have been following along, you know by now that Labor Law § 240(1) affords protection to workers engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.  Those words may seem simple to define, but a recent decision from the First Department might have you reconsidering what these words mean, in the context of Labor Law § 240(1). 

In Clarke v. Consolidated Edison Company of New York, Inc., 2024 NY Slip Op 02092, the Appellate Division, First Department reversed a Supreme Court, New York County decision that granted defendant’s motion for summary judgment dismissing plaintiff’s Labor Law §§ 240(1) and 241(6) claims.  Plaintiff alleges he sustained personal injuries when he fell into an open manhole while he was performing work for his employer, which contracted with defendant to perform underground inspections and repairs of network distribution equipment. 

In its decision, the Supreme Court, New York County held (1) “that plaintiff was a member of a crew assigned to inspect manholes, among other things.  There was no construction project.  He was not engaged in erection, demolition, repairing, altering, painting, cleaning or pointing of a structure” so as to entitle him to the protection of the Labor Law, and (2) that falling into a manhole is not one of the gravity-related dangers intended to be covered by Labor Law § 240(1).

Addressing the lower Court’s decision directly, the First Department held that an open manhole cover is an elevation-related risk that Labor Law § 240(1) is intended to protect against.  The First Department also held that the language of the contract between defendant and plaintiff’s employer, as well as the testimony of plaintiff and defendant’s representative, raised an issue of fact as to whether plaintiff was engaged in protected work activity under the Labor Law at the time of his accident.  It then cited its previous decision in Dos Santos v. Consolidated Edison of N.Y., Inc., 104 A.D.3d 606, 603 (1st Dep’t 2013).

Briefly, in Dos Santos, the First Department affirmed that the lower Court in that case correctly found that a manhole meets the definition of a structure, as that term is used in the text of the Labor law.  Moreover, in Dos Santos, it was undisputed that plaintiff and his co-worker had to expose the manhole to access their subterranean work area, which is an elevation risk that Labor Law § 240(1) is intended to obviate.  The First Department in Dos Santos held that plaintiff’s work in that case constituted “repairs” within the meaning of the statute.

What the First Department has done here is cited to its previous decisions that establish a manhole is a structure within the meaning of Labor Law § 240(1), and that a question of fact existed about the nature of plaintiff’s work, presumably, whether it constituted a “repair” within the meaning of the statute. 

The Clarke decision can be found here.

The Dos Santos decision, relied on by the First Department in Clarke, can be found here.  

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